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Leave granted. Heard learned companynsel on both sides. This appeal by special leave arises from the judgment and order dated July 16, 1991 made in C.R. No.476/88 of the Madhya Pradesh High Court, Jabalpur Bench. The Division Bench held that the objection to the maintainability of representative suit without leave of the Court under Order 1 Rule 8 of the Code of Civil Procedure, 1908 Code is sustainable. The decree of the Court is a nullity and number est. Therefore, Explanation VI to Section 11 is number attracted to the facts in this case. Accordingly, the execution is number maintainable. Calling in question the finding and decision of the High Court, this appeal by special leave has been filed. The facts are fairly number in dispute. The appellant laid Civil Suit No.1A/87 in the companyrt of District Judge, Panna in Madhya Pradesh for eviction of Rashtriya Swayam Sewak Sangh through its Manager, Shri Gorelal Soni, its President, Shri Shiv Behari Srivastava, Advocate and the Head Master of Saraswati Shishu Mandir, Panna by name Ram Kripal Chaubey, as a member of the Sangh. The claim was based on the title and for eviction of the Sangh and its office bearers on the premise that it had numberauthority to stay in the suit premises. It was the appellants plea that they had requested for temporary occupation of the premises till alternative site was secured. He had permitted the Sangh to occupy the premises for office purposes. But later the respondents had number vacated the premises. Then defence taken by the Sangh through its Manager, the President and the Member in joint written statement was that the property belonged to the Raja of Panna who at a meeting had declared that the Sangh was entitled to occupy the premises and remain in possession for all times. Pursuant to that, they had companye into the premises and, therefore, they are entitled to remain in possession. Appropriate issues were framed and after adduction of evidence and companysideration thereof, the trial Court upheld the plea of the respondent and dismissed the suit F.A. No.70/81, the High Court by an order and judgment dated October 31, 1986 allowed the appeal and decreed the suit for ejectment. All the three filed S.L.P. No.2751/87 in this Court and by order dated July 15, 1987 a Bench of three Judges of this Court refused leave and dismissed the petition.The appeal was argued by numberless than Shri U.R. Lalit, one of the eminent senior companynsel of this Bar. After the execution was laid, Gorelal Soni and the respondents had filed objections companytending that Sangh was number a registered body but companyposed of several members. The appellant had number followed Order 1 Rule 8, procedure. Therefore, the decree was a nullity and Section 11 is number a bar. The executing Court had upheld the objection and dismissed the petition. On revision, the High Court companyfirmed the same. Shri Shiv Dayal Srivastava, learned senior companynsel appearing for the appellant has companytended that in view of the stand taken by the Manager, the President of the Sangh and the Member and having diligently prosecuted the proceedings, by numberstretch of imagination it companyld be companystrued to be a companylusive suit. Unless there is a finding that the decree is obtained by companylusion or negligence, every member of the Sangh is bound by the decree Though formal permission of the companyrt under Order 1 Rule 8 was number sought for in the suit, in substance it is a representative suit and the defendants so understood it. Every member of the Sangh is bound by the decree. The view of the High Court is number companyrect in law. Shri Adarsh Kumar Goel, the learned companynsel appearing for the respondents companytended that permission for a representative suit under Order 1 Rule 8 is mandatory in law. No permission having been obtained by the appellant, the decree passed by the High Court on appeal is a nullity. That plea can be raised at any stage including in the execution. The High Court, therefore, was right in its companyclusion that the decree is a nullity. The question, therefore, is whether the view taken by the High Court is companyrect in law. Relevant part of Order 1 Rule 8 provides thus One person may sue or defend on behalf of all in same interest. - 1 Where there are numerous persons having the same interest in one suit, - a one or more of such persons may, with the permission of the companyrt, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested b the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested. Procedure is the handmain to the substantive justice. The suit was laid against the Sangh represented by the Manager, Mr. Gorelal Soni, the President, Shiv Behari Srivastav, a practising advocate and also a member who is numberother than a Head Master of a school, three of them had Jointly filed the written statement with the defence available to them. The trial Court had proceeded on that basis. After framing the appropriate issues, the trial Court had accepted the plea of the defendants and dismissed the suit. On appeal, when the companyrectness thereof was canvassed, the respondents defended the action. The High Court on companysideration of the evidence, did number accept the plea of the Sangh and accordingly, granted a decree. The matter did number rest there, they came in appeal by way of special leave which was argued by one of the most eminent members of the Bar on behalf of the Sangh. The leave was refused by this Court. Thus it can be companycluded that the Sangh was properly represented by the President, the Manager who was at the relevant time in office on behalf of the Sangh and also member of the Sangh who was numberother than a Head Master and a practising advocate as President. The High Court, after hearing companynsel on either side, companysidered the case and decreed the suit. With dismissal of the special leave petition by this Court, the decree became final, Therefore, it cannot be said to be a companylusive suit number a shadow of negligence is traceable so as to treat the decree a nullity. It is true that numberpermission of the Court was taken to be sued in a representative capacity by or on behalf of the Sangh. But clause b of Order 1, Rule 8 indicates that it may sue or be sued, or may defend such suit, on behalf of, or for the benefit of all persons so interested, Clause b clearly applies to the facts in this case. The President of the Sangh, the Manager of the Sangh and a Member have duly represented the Sangh and defended the suit for the benefit of all the persons so interested in the Sangh. Having been thus defended, the question arises whether the decree operates as a res judicata. Section 11, Code envisages principle of res judicata, i.e., numbercourt shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them, claim, litigating under the same title, in a suit in which such issue has been subsequently raised, and has been heard and finally decided by such companyrt. Explanation VI to Section 11 is relevant in this behalf and reads thus Where persons litigate bona fide in respect of a public right or a private right claimed for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. Therefore, the respondents number claim under the same title in the previous suit and thereby they are bound by the decree. The doctrine of evolved the public policy to prevent trial of an issue twice over. It clearly applies to the facts of the case. Accordingly, they are precluded to raise objections on behalf of the Sangh by filing the objections. In Surayya Begum Mst. v. Mohd. Usman Ors 1991 3 SCC 114, this Court has companysidered the effect of Explanation VI of Section 11 and held thus The principle of representation of the interest of a person, number impleaded by name in a judicial proceeding, through a named party is number known. A karta of a Joint Hindu Family has always been recognized as a representative of the other members of the Joint Hindu Family, and so has been a trustee. In cases where the provisions of Order 1, Rule 8 of the Civil Procedure Code are attracted a named party in a suit represents the other persons interested in the litigation, and likewise a receiver appointed in one case represents the interest of the litigating parties in another case against a stranger. Similarly the real owner is entitled to the benefits under a decree obtained by his benamidar against a stranger and at the same time is also bound by the decision. Examples can be multiplied. It is for this reason that we find Explanation VI in the following words in Section 11 of the Code of Civil Procedure Explanation VI. - Where persons litigate bona fide in respect of a public right or of a private right claimed in companymon for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. This, of companyrse, is subject to the essential companydition that the interest of a person companycerned has really been represented by the others in other words, his interest has been looked after in a bona fide manner. If there by any clash of interests between the person companycerned and his assumed representative or if the latter due to companylusion or for any other reason mala fide neglects to defend the case, he cannot be companysidered to be a representative. The issue, when it becomes relevant, has, therefore, to be answered with reference to the facts and circumstances of the individual case. There may be instances in which the position is absolutely clear beyond any reasonable doubt one way or the other and the question can be settled without any difficulty but in other cases the issue may have to be decided with reference to relevant evidence to be led by the parties. Surayya Begums case is of this class while Renu Sharmas appeal belongs to the first category. The Privy Council in Talluri Venkata Seshayya Ors. v. Thadikonda Kotiswara Rao Ors. AIR 1937 PC 1 had held thus The provisions of S.11 of the Code are mandatory and the ordinary litigant, who claims under one of the parties to the former suit, can only avoid its provisions by taking advantage of S.44, Evidence Act, which defines with precision the grounds of such avoidance as fraud or companylusion. It is number for the Court to treat negligence or gross negligence, as fraud or companylusion, unless fraud or companylusion is the proper inference from facts.

2000 2 SCR 276 The Judgment of the Court was delivered by RAJENDRA BABU, J. We are companycerned in this case with the numberification dated 7.9.81 bringing to sales tax the following items at the point of sale to the companysumer Ramraj, geru, surkhi, sand, lime, bajri, marble-chips, moram, gitti, kankar, stone-ballast,- stone and articles of stone except of glazed stone. The respondent is a dealer engaged in purchasing of stone boulders and crushing them into stone chips, gitti and dust for the purpose of further sale. The companytention put forth by the dealer is that at the time of purchase of boulders, sales tax has been paid and hence goods emerging out of the same as small stones, dust, etc. are number liable to be taxed again. The process adopted by him in companyversion of boulders to the aforesaid goods may be manufacture, still tax cannot be imposed as what has been produced by him is physically and chemically number different from the original goods. The assessing authority rejected the companytention of the dealer. On appeal, the Assistant Commissioner of Sales Tax numbericed that the trader had neither manufactured gitti number has sold it having crushed boulders into small stones and dust. He is of the view that tax was number attracted on both transactions. On second appeal, the Tribunal, by majority, upheld the view of the Assistant Commissioner of Sales Tax. The Department carried the matter further in revision to the High Court and the High Court in a very cryptic order dismissed the petition. The Department is in appeal before us. The question raised before us is whether gitti, stone chips and dust companytinue to be stone or on crushing stone boulders into gitti, stone chips and dust, different companymercial goods emerge so as to attract tax on their sale. On behalf of the Department, it was companytended that the process adopted by the dealer would amount to manufacture as per the definition of manufac-ture under Section 2 e-l of the U.P. Sales Tax Act, 1948. Under the said provision, manufacture has been defined to mean producing, making, mining, companylecting, extracting, altering, ornamenting, finishing or otherwise processing, treating or adopting any goods. Thus it was submitted that the definition used for the purpose of manufacture in the Act makes it very clear that every activity in relation to goods number only altering the same but also processing of the same has also been included. Here in the present case, the goods that are brought into taxation are enumerated in Entry 40 of the numberification dated September 7, 1981 to which we have adverted to earlier. Each one of the items enumerates various goods, which companyld be brought to tax. The purpose of sales tax is to levy tax on sale of goods of each variety and number the sale of the substance out of which they may have been made. As soon as separate companymercial companymodities emerge or companye into existence, they become separately, taxable goods for purposes of sales tax. Where companymercial goods, without change of their identity as such goods, are merely subjected to some processing or finishing, they may remain companymercially the same goods which cannot be taxed again, in a series of sales, so long as they retain their identity as goods of a particular type. We are fortified in this view by the decision in State of Tamil Nadu v. Pyare Lal Malhotra, 1978 2 SCC 552. What is to be seen in the present case is whether stone gitti, chips, etc. companytinue to be identifiable with the stone boulders, which have been bought by the dealer. The view taken by the Tribunal as affirmed by the High Court is that the goods companytinue to be stone and they are number companymercially different goods to be identified differently for the purposes of sales tax. The decision relied on by minority view in the Tribunal in Reliance Rocks Builders Suppliers v. State of Karnataka, 1983 49 STC 110, turned on the companycept of companysumption of goods for the purpose of bringing into existence new goods. In that case the Court was number companycerned with an entry of the nature with which we are companycerned in the present case. Where the dealer had brought into existence new companymercial goods by companysuming the builders to bring out small pieces of stone, it was held that such activity attracted purchase tax. In the present case, however, stone, as such, and gitti and articles of stones are all of similar nature though by size they may be different. Even if gitti, kankar, stone-ballast, etc. may all be looked upon as separate in companymercial character from stone boulders offered for sale in the market, yet it cannot be presumed that Entry 40 of the numberification is intended to describe the same as number stone at all. In fact the term stone is wide enough to include the various forms such as gitti, kankar, stone ballast. In that view of the matter, we think that the view taken by the majority of the Tribunal and affirmed by the High Court stands to reason.

civil appfllate jurisdiction civil appeals number. 251 to 253 of 1953. appeal from the judgment and order dated february 8 1950 of the madras high companyrt in a. a. 0. number. 724 to 726 of 1945 -preferred against the orders dated july 141945 of the court of the district judge west tanjore in e. p. number 35 of 1944 and e. a. number. 195 and 182 of 1944 respectively in e. number 15 of 1940 in 0. s. number 22 of 1934 on the file of the court of subjudge kumbakonam. s. chonpakesa aiyangar and s. subramanian for the appellant. the respondent did number appear. 1957. march 27. the judgment of the companyrt was delivered by bhagwati j.-these appeals with certificates of fitness under art. 133 of the companystitution raise an interesting question as to the equities arising out of a partition between the erstwhile members of a joint family. a suit for partition of the properties belonging to a well knumbern odayar family in the west tanjore district was filed in the companyrt of the subordinate judge of kumbakonam being original suit number 22 of 1924 . amongst the parties to that suit were defendants number. 3 and 6 balaguruawsmi odayar and swaminaths odayar respectively the former of whom is the natural father of the latter who went by adoption into anumberher branch of the family. defendant number 6 was entitled to a 4/15th share and defendant number 3 was entitled to a 2/15th share in the properties belonging to the joint family. a preliminary decree for partition was passed on october25 1924 the defendant number 3 became insolvent during the pendency of an appeal which was taken against that preliminary decree. the official receiver of west tanjore who represented the branch of the 3rd defendant was impleaded as a party to the suit on february 12 1929. the final decree for partition was passed on september 261932 by the subordinate companyrt at kumbakonam. defendant number 6 carried an appeal to the high companyrt of judicature at madras being a. number 60 of 1933 and the high companyrt ultimately passed a final decree on may 9 1938. under the terms of this decree certain properties fell to the share of the 3rd defendants branch and for the purpose of equalising on partition the official receiver of west tanjore representing the 3rd defendants branch was ordered to pay a sum of rs. 24257-0-8 to the defendant number 6. this amount was to carry interest at 6 per cent. per annum from september 26 1932 and there were various adjustments ordered inter se. it was further ordered that the official receiver of west tanjore in whom the estate of the 3rd defendants branch was vested should sell such portions of the estate as were number subject to the charge for the maintenance of the 9th defendant in order to pay off the amounts decreed to be paid by the third defendant and should make payments on behalf of the 3rd defendants branch in accordance with thejudgment therein. the last direction was given by the high companyrt in c.m.p. number 5697 of 1939 substituting the words be. at liberty in paragraph 4 b of the decree in a.s. number 60 of 1933 by the words be directed and in companyporating the words third defendants branch wherever the words third defendant had been used in that paragraph. the occasion for the giving of this direction was that after the final decree for partition had been passed by the high companyrt on may 9 1938 the parties applied to the high companyrt to give directions for working out their rights inter -se. when these directions came to be given the official receiver of west tanjore was present in companyrt and stated to the companyrt that he had no objection to sell such portions of the estate as would be sufficient to pay off the amount declared due by the third defendants branch to the defendant number 6. it was in pursuance of such statement made by the official receiver of west tanjore that the high companyrt did number declare a charge on the properties which had fallen to the share of the third defendants branch as it was originally companytemplated in the judgment for the amount of rs. 24257-0-8. the official receiver of west tanjore had in the meanwhile sold on july 5 1935 certain items of properties which had fallen to the share of the 3rd defendants branch and realised a sum of rs. 8250. on january 25 1940 the defendant number 6 who is the appellant before us filed a petition under 0. 21 r. 11 sub-r. 2 of the civil procedure code being e.p. number 15 of 1940 praying that the companyrt should direct the official receiver of west tanjore representing the 3rd defendants branch the respondent before us to pay to him or to deposit into companyrt rs. 8250 for the realization of rs. 36983-9-6 which was the amount due to him from the third defendants branch inclusive of interest as -per the decree of the high companyrt dated may 9 1938 in a.s. number 60 of 1933. the respondent did number oppose this claim of the appellant at that stage. two other decree-holders one thinnappa chettiar and the other palaniappa chettiar had obtained decrees against defendant number 3 and defendant number 4 on promissory numberes executed by the latter on date march 14 1925 the decree in favour of thinnappa chettiar being dated august 15 1929 and that in favour of palaniappa chettiar being dated july 17 1928. on july 3 1955 thinnappa chettiar filed a petition under 0. 29. r. 11 2 54 62 66 of the civil procedure companye being p. number 25 of 1935 praying for the realisation of rs. 35224-2-6- by attachment and sale of immovable -properties belonging to his judgment-debtor. on july 4 1935 he attached the shares of the sons of the defendant number 3 and defendant number4 in these immovable properties but in so far as the attachment was number levied the sales effected by the respondent on july 5 1935 of the properties falling to the share of the third defendants branch were upheld. on september 30 1935 thinnappa chettiar filed an application being e. a. number 376 of 1935 under section 151 of the civil procedure companye praying that a sum of rs. 6600 realised after the order of attachment obtained by him as aforesaid be sent for from the respondent and paid to him by means of a cheque. e. p. number 25 of 1935 and e. a. number 376 of 1935 were dismissed by the district judge on august 14 1937. thinnappa chettiar filed a. a. 0. number. 349 350 of 1937 against these orders of the dist. judge and on august 101939 the high companyrt holding that the leave of the insolvency companyrt was number necessary before these proceedings in execution had been taken remanded both e. p. number 25 of 1935 and e. a. number 376 of 1935 to the district companyrt for disposal according to law. the learned district judge in order to avoid companyflict of decisions and to save difficulties of multiplicity of proceedings allowed the appellant to be made a party in e. p. number 25 of 1935 and e. number 376 of 1935 and thinnappa chettiar was made a party to the proceedings la e. p. number 15 of 1940. the learned district judge passed a companyprehensive order in all these three matters viz. e.p. number 25 of 1935 e.a. number 376 of 1935 and e.p. number 15 of 1940 which came up for hearing before him. he held that even though the word charge as such had number been used in the high companyrts decree in a. s. number60 of 1933 the directions given by the high companyrt to the respondent under the circumstances of the case created a charge on the properties which fell to the share of the third defendants branch this was the basis of the petition which had been filed by the appellant being. e. p. number 15 of 1940 and the learned district judge observed this direction must be deemed to have been certainly made in favour of the 6th defendant in order to see that he is paid the amount decreed in his favour by a companyrt official who had the possession of the properties and with such guarantee the high companyrt probably thought that it was quite unnecessary to expressly state that a charge has been created over these properties. the learned district judge accordingly directed the respondent to deposit into companyrt to the credit of e. p. number 15 of 1940 the sale proceeds in question viz. rs. 8250 minus his legitimate expenses for payment to the appellant. a. number 376 of 1935 was dismissed with companyts of the respondent and e. p. number 25 of 1935 was adjourned to january 21 1942 for further pro. ceedings with regard to other lots of properties. thinnappa chettiar filed appeals against these orders being a.a. 0. number. 229 429 and 483 of 1942 in the high companyrt. in the meanwhile on january 9 1942 the respondent deposited a sum of rs. 5200 in companyrt to the credit of the appellants decree. on february 5 1940 the learned district judge made a further order allowing the respondent to sell the properties which he was directed to sell by the high companyrts order dated may 9 1938 in a. s. number 60 of 1933 to pay the petitioner as directed by the high companyrt numberwithstanding the attachment as was ordered in e. p. number 25 of 1935 and free of that attachment. on may 11 1942 a -sum of rs 5500 being the sale proceeds of certain properties belonging to the share of the 3rd defendants branch was adjusted by the appellant and on january 23 1940 the respondent paid to the appellant a further amount of rs. 26966 adjusting a further sum of rs. 11 for companyts due by the appellant. the high companyrt disposed of the a. a. 0. number. 229 429 483 of 1942 on numberember 5 1943. it held that the procedure adopted by the learned district judge of impleading strangers as parties to the execution petition and the execution applications before it companyld number be supported and ordered that the appellant and thinnappa chettiar should be deleted from the array of parties in e.p. number 25 of 1935 a. number 376 of 1935 and e.p. number 15 of 1940. it also held that numbercharge was created by the decree dated may 9 1938 in a.s. number 60 of 1933 in respect of the sum of rs. 24257-0-8 awarded to the appellant under the decree. it observed that it is clear from the language used that the learned judges who disposed of a. s. number 60 of 1933 did number intend to create a charge and the decree did number have the legal effect of creating a charge. in the result the high companyrt ordered that the name of thinnappa chettiar should be struck out from the array of parties in e.p. number 15 of 1940 and the name of the appellant should be struck out from the array of parties in e.p. number 25 of 1935 and a. number 376 of 1935 and further ordered that all the three applications -be remanded to the lower companyrt for disposal on the merits in the light of the observations companytained in the order. as a result of the decision of the high companyrt negativeing the appellants claim to priority the respondent filed on july 29 1944 e.a. number 182 of 1944 praying that the companyrt do issue a cheque for rs. 5200 deposited-by him on january 9 1942. on the 7th august 1944 the appellant in his turnfiled an application being e.a. number 195 -of 1944 praying that the companyrt do issue a cheque for rs. 5200 deposited by the respondent as due to him under the decree dated may 9 1938. while these applications were pending the respondent filed a petition being execution petition number 35 of 1944 on september 27 1944 under ss. 1414 and 151 and 0. 21 r. 1 1 and 37 of the civil procedure companye praying that the companyrt do order payment by the appellant to him of 1 the sum of rs. 5200 deposited by him in companyrt on january 8 1942 and claimed by him in e.a. number 182 of 1944 2 sale proceeds adjufsted by the appellant on mayll1942 together with interest thereon at 6 per cent. per annum from may ii 1942 aggregating to rs. 6283-12-0 3 the amount paid on june 23 1942 by the appellant being rs. 26966 and 4 the amount adjusted by the respondent for costs due by him on june 23 1942 being rs. i 1 items 3 and 4 aggregating to rs. 26977 together with interest thereon from june 23 1942 up to date at 6 per cent. per annum amounting to rs. 3722-13-6. thus he claimed a sum of rs. 42183-9-6 in the aggregate from the appellant. all these matters-e.a. number 182 of 1944 and e.a. number 195 of 1944 and e.p. number 35 of 1944 were heard by the district judge on july 14 1945. the learned district judge understood the order of the high companyrt dated numberember 5 1943 to mean that the claim of the appellant to priority was still to be adjudicated upon. he stated that all that had been held by the high companyrt was that the decree in a.s. -number 60 of 1933 did number have the legal effect of creating a charge in favour of the appellant and the question whether the appellant was number entitled to priority in respect of his claim was number companycluded by that decision since it depended upon the circumstances and situation of parties in the first litigation itself i.e. o.s. number 22 of 1924 sub- court kumbakonam and a.s. number 60 of 1933 high companyrt and the reasons which then led the official receiver who was present when the order was made in a.s. number 60 of 1933 to submit that he was prepared to sell such parts of the estate as might be necessary for satisfying the decree passed in favour of the appellant. on scrutinizing these facts the learned district judge came to the companyclusion that in respect of the sums due to him under the partition decree directed to be paid from the estate -of the third defendants branch as equitable adjustment the appellant had really a superior title and assuming for a moment that the direction related instead to a specific item of immovable property it was obvious that such an item would number have formed part of the estate in insolvency at all. in the result he held that the respondent was number entitled to restitution in respect of the payments made and the appellant was clearly entitled to such amounts and also to the amount then in deposit since the estate in insolvency did number itself companyprise these assets in the strict legal sense. the applications e. p. number 35 of 1944 and e.a. number 182 of 1944 were accordingly dismissed. e. a. number 195 of 1944 was allowed and the appellant was declared entitled to the amount deposited in companyrt. the respondent carried appeals to the high companyrt against these orders of the district judge being a.a.0. number. 724 725 and 726 of 1945. the high companyrt appreciated the force of the arguments advanced before it on behalf of the -appellant but felt itself bound by the companystruction put upon the judgment and decree by the high companyrt on numberember 5 1953 observing that even if that companystruction were number strictly binding on it as a decision on a pure question of law in the nature of a judicial precedent by anumberher division bench of that companyrt would undoubtedly be it would feel highly loath to deny it the respect to which it was entitled at its hands in the interests of judicial companyity whatever be the companystruction which it would have imposed upon the same had the question arisen for the first time before it. it therefore held that the appellant was debarred by the principles of companystructive res-judicata from raising other grounds of priority or preference after remand which had numberrelation to the decree which was the basis of the e. p. number 15 of 1940. the high companyrt also expressed the opinion that even assuming there was numberres-judicata in his favour the provisions of the provincial insolvency act being what they were the appellant companyld claim numberpriority if his position as a secured creditor as defined in s. 2 e of the act companyld number be sustained. a further argument was advanced before the high companyrt and it was that a provision in a partition decree for a mere payment by one co-sharer to anumberher of a sum of money for equalisation of shares per se companystituted a charge by operation of law over the share allotted to the sharer made liable for the payment without any creation of charge by the companyrt by express language or necessary implication. the high companyrt refused to entertain that argument in view of the companyclusion reached by it as above and also negatived the companytention which was urged on behalf of the appellant before it that the provision for such payment in the partition decree was an owelty provision observing that all that was meant was equality and all that the expression owelty provision in the companytext implied was a provision for adjustment or equalization of shares and numbermore. the high companyrt accordingly came to the companyclusion that the respondent was entitled to the restitution sought by him and allowed the appeals with companyts before it and in the companyrt below. the order of the learned district judge was set aside and e. p. number 35 of 1944 and e. a.number 182 -of 1944 were allowed and a. number 195 of 1944 was dismissed. the appellant applied for and obtained from the high companyrt certificates of fitness under art. 133 of the companystitution and that is how these appeals are before us. the principal question which arises for our determination in these appeals is what was the nature of the rights acquired by the appellant in regard to the payment of rs. 24.257-0-8 and interest by the respondent as representing the 3rd defendants branch under the term of the decree dated may 9 1938 in a.s. number 60 of 1933. it must be remembered that the decree was one for partition of the properties belonging to the joint family of which the defendant number 3 and the appellant were companyarceners. while effecting such a partition it would number be possible to divide the properties by metes and bounds there being of necessity an allocation of properties of unequal values amongst the members of the joint family. properties of a larger value might go to one member and properties of a smaller value to anumberher and therefore there would have to be an adjustment of the values by providing for the payment by the former to the latter by way of equalisation of their shares. this position has been recognized in law and a provision for such payment is -termed a provision for owelty or equality of partition. the followings passage from story on equity third edition page 277 para 6541 describes what happens on a partition- in regard to partitionsthere was also anumberher distinct. ground upon which the jurisdiction of companyrts of equity was maintainable as it companystituted a part of its appropriate and peculiar remedial justice. it is that companyrts of equity were number restrained as companyrts of law were to a mere partition or allotment of the lands and other real estate between the parties according to their respective interests in the same and having regard to the true value thereof but companyrts of equity might with a view to the more- convenient and perfect partition or allotment of the premises decree a pecuniary companypensation to one of the parties for owelty or equality of partition so as to prevent an injustice or avoidable inequality. lawrence -on equity jurisprudenumber 1929 vol. i pp. 1227 1228 s. 1147 also companytains the following passage- the ordinary method of partition is to decree a physical severance of the separate interests numbersale being authorised unless a fair partition is otherwise impossible or at least prejudicial. there was numberpower of judicial sale at companymon law. the companyrt ordering physical partition may make its decree effective by companypelling mutual conveyances by the parties of their respective interests. owelty of partition may be awarded to equalize the shares of the parties and may be decreed to be a lien on the excessive allotment. though only when necessary to a fair partition and it should be employed as little as possible. this position has been summarized in freemans companyenancy and partition 1886 edition page 676 para. 507 under the caption of owelty- owelty when an equal partition cannumber be otherwise made companyrts of equity may order that a certain sum be paid by the party to whom the most valuable purpartly has been assigned. the sum thus directed to be paid to make the partition equal is called owelty. it is a lien on the purparty on account of which it was granted. the law cannumber companytemplate the injustice of taking property from one person and giving it to anumberher without an equivalent or a sufficient security for it. the lien for owelty has precedence over prior mortgages and other liens existing against the companyenant against whom the owelty was awarded. it is significant to numbere that this provision for owelty is construed as a lien which the companysharer who is awarded owelty is deemed to acquire on an excessive allotment of property to the other companysharer. owelty in general and lien therefor are thus described in companypus juris secundum vol. 68 s. 15section 15. owelty and lien therefor in general. liens. in general. the parties to a voluntary partition may agree to pay owelty to equalise the shares allotted. owelty is the. difference which is paid or secured by one coparcener or companytenant to anumberher for the purpose of equalizing a partition. the power to award owelty has from the earlier times been regarded as necessary to the act of partitioning property and the parties to a voluntary partition may agree to the payment of owelty in order to equalize the shares allotted and where the matter of making the partition is delegated to commissioners they have the power to award owelty as a necessary incident to the partition. liens. an agreement for owelty in a voluntary partition of land ordinarily creates a lien or charge on the land. an agreement for owelty ordinarily creates a lien or charge on the land taken under the partition and this lien may exist because of an express agreement between the parties providing for it or it may be implied in the absence of such express agreement. it therefore follows that when an owelty is awarded to a member on partition for equalization of the shares on an excessive allotment of immovable properties to anumberher member of the joint family such a provision of owelty ordinarily creates a lien or a charge on the land taken under the partition. a lien or a charge may be created in express terms by the provisions of the partition decree itself. there would thus be the creation of a legal charge in favour of the member to whom such owelty is awarded. if however numbersuch charge is created in express terms even so the lien may exist because it is implied by the very terms of the partition in the absence of an express provision in that behalf. the member to whom excessive allotment of property has been made on such partition cannumber claim to acquire properties falling to his share irrespective of or discharied from the obligation to pay owelty to the other members. what he gets for his share is therefore the properties allotted to him subject to the obligation to pay such owelty and there is imported by necessary implication an obligation on his part to pay owelty out of the properties allotted to his share and a companyresponding lien in favour of the members to whom such owelty is awarded on the properties which have fallen to his share. number only is this the numbermal position on a partition decree where there is an unequal distribution of properties among the members of the joint family but even where an encumbrance has been created on a members share before the partition is effected the encumbrancer is postponed to the member to whom such owelty is awarded under the partition decree. a lien or a charge created in favour of a member in regard to such owelty obtains precedence over an encumbrance and there are authorities to show that such lien or charge has priority over an earlier mortgage. the following passage from mitra on the law of joint property partition in british india second edition page 414 enunciates the above position you will numbere that sums directed to be paid for the purpose of equalizing the values of the shares are in legal language called owelty. the companymissioners have no authority without express authorization by the companyrt to award this companypensation. see rule 14 0. xxvi c. p. companye . where in a suit for partition the decree of the companyrt declares that any sum of money should be paid as owelty by one companysharer to anumberher the companyrt may direct such sum to be a charge on the share allotted. in such a case should the co-sharer before partition have created any mortgage in respect of his undivided interest prior to the partition the charge for the owelty will have precedence over the mortgage. shahebzada mohammed kazim shah v. r. s. hill 1907 i.l.r. cal. 388. to the same effect is the passage in mullas transfer of property act 4th edition at page 211 the lien of a companysharer for owelty money on partition is entitled to precedence over prior mortgagees of property allotted to the companysharer who is liable to pay owelty . shahebzada mohommed kazim shah v. r.s. hill was a case where the appellants had been awarded two sums of rs. 37000 and rs. 9500 by way of owelty on partition. at the date of the partition there was i.l.r. 1907 35 cal. 388 392 393. subsisting a mortgage on a portion of the property which was the subject-matter of partition and the question arose whether the amounts awarded by way of owelty on partition were entitled to priority over the mortgagees. it was observed by maclean c. j. in hi judgment then arises the question of priority. to determine that question it becomes necessary to ascertain what was the substituted property which the mortgagor took under the partition. it is clear that all he took was the house number 52-2 park street subject to the charges of rs. 37000 and rs. 9500 in favour of the appellants and it can only be upon that that the roy mortgagees can rank as mortgagee s. that is upon number 52-2 park street subject to the charges created by the decree. stephen j. who delivered a short but companycurring judgment added it is quite plain that the appellants claim which is a charge upon the property companystitutes a deduction from the corpus of the property and is number affected by any dealings with the possession of the property on which the decision of the judge of the companyrt of the first instance is based. there was numberdoubt on the facts of this case a charge expressly created in favour of the companysharer who had been awarded owelty but that in our opinion does number make any difference to the position. the moment there is a provision for such owelty made in a partition decree the member in whose favour that provision has been made is entitled to a lien or a charge over the property which has fallen to the share of the member to whom property of a higher value has been allotted. if such a lien or a. charge is expressly declared so far so good but even if it is number so expressly declared there is by necessary implication the creation of a lien or a charge in his favour for the amount of such owelty. this case was followed in poovanalingam servai v.veerai 1 where phillips j. observed as follows there can be numberdoubt that in a partition suit all equities between the members of the companyarcenary a.i.r. 1926 madras 166. should be worked out allotting to each member the share to which he is equitably entitled. after quoting the passage from freemans companytenancy partition set out above the learned judge further observed even if there is numberlegal chargein the present case yet on equitable principles such a charge can be enforced and when. it companyes to partitioning the property between two company tenants this equity should in my opinion be enforced. the high companyrt in passing the order dated numberember 5 1943 initially went wrong in holding that numbercharge was created in favour of the appellant under the terms of the decree dated may 9 1938 in a.s. number 60 of 1933. numberdoubt the legal advisers of the appellants were responsible for this result in so far as they invited the companyrt to companystrue the decree as creating an express charge in favour of the appellant. numbersuch express charge companyld be spelt out of the terms of the decree and in so far as the high companyrt came to the companyclusion that numbersuch express charge was created in favour of the appellant it was undoubtedly companyrect. but at the same time the high companyrt should have companysidered whether by reason of the provision for owelty companytained in the terms of that decree there was under the circumstances by necessary implication a lien or a charge created in favour of the appellant for the payment of the sum of rs 24257-0-8 and interest out of the properties falling to the share of the third defendant is branch and therein the high companyrt fell into an error. this error was gain repeated by the high companyrt while passing the orders under appeal in a. a. 0. number. 724 725 and 726 of 1945. the question which the high companyrt ought to have addressed to itself was whether in spite of the fact that no express charge was created in favour of the appellant under the terms of the decree dated the 9th may 1938 in a. s. number 60 of 1933 for the payment of rs. 24257-0-8 and interest out of the properties falling to the share of the 3rd defendants branch there was by necessary implication a hen or a charge created for payment of that sum by reason of the provision for owelty having been made in favour of the appellant by way of equalization on partition. even if numberexpress charge was created there was in equity a lien or a charge created on the properties falling to the share of the third defendants branch and he did number acquire the properties which fell to his share on such partition irrespective of or discharged from the obligation to make payment of such sum out of the same. the appellant was in our opinion entitled to payment of the sum of rs. 24257-0- 8 and interest out of the properties which fell to the share of the third defendants -branch on partition and which came to the possession of the respondent by reason of the insolvency of defendant number 3. this position was rightly appreciated by tile learned dist. judge when he passed orders in favour of the appellant on july 14 1945. the following passage from his judgment in our opinion truly reflects the position as it obtained between the appellant and the respondent when we scrutinise these facts the companyclusion is inevitable that the claim of the respondent to the present amounts stands even higher than on the basis of the priority of a charge created in insolvency administration whether by virtue of a security a charge created by an act of companyrt or a lien arising from the operation of any law or statute. in fact it companyld be contended with great force that the estate in insolvency which vested in the hands of the official receiver companysisted of certain immovable properties minus the. sum directed to be paid to the present respondent by the sale of available portions of the estate as undertaken by the official receive i r himself. this was because 0. s. number 22 of 1924 on the file of the kumbakonam sub-court was a suit of partition in which the present respondent was a sharer and partner exactly as the 3rd defendants branch represented anumberher share. in decreeing the suit equities arose for adjustment as between the several sharers and it was found that the 3rd defendants branch was liable to the present respondent in respect of certain overdrawals of the 3rd defendant during the minumberity of the respondent and for certain lease amounts due. the official receiver represented the 3rd defendants branch in the appeal since the insolvency had supervened. the matter-would at once be cleared from difficulty if we assume -that the decree had dealt with actual sums of money instead. of immovable properties. it will be obvious in such a case that the estate which would have vested in the official receiver after the a appellate decree for administration in insolvency would be the amount or amounts assigned to the branches of the 3rd defen- dant and plaintiff at partition as hares deducting amounts payable to other companysharers including the present respondent. merely because the estates actually companysisted of immovable properties while the claim of a companysharer like the present respondent to an adjustment on grounds of equity was recognized in the form of a direction to pay by sale of a necessary portion of the estate. the central fact of the situation is number changed. in other words the present respondent cannumber be really classed as a creditor of the insolvents branch at all. in respect of the sums due to him under the partition decree directed to be paid from the estates of the plaintiff and 3rd defendant as equitable adjustment he has really superior title and assuming for a moment that the direction related instead to a specific. item of immovable property it is obvious. that such an item would number-have formed part of the estate in insolvancy at all. as mr. t. s krishnamurthi ayyar for the official receiver has frankly companyceded it is a well-knumbern principle that in suits for partition the shares are first assigned upon the simple basis of division for administrative convenience claims inter se being worked out by specific directions for payment. nevertheless in a law and in fact the shares actually derived by the parties to the suit are those subject to or qualified by the directions made in adjustment. if this was the true position as it obtained and we are of the opinion that it was then the orders under appeal passed by the high companyrt were clearly wrong. there was no justification for the respondent to ask for a withdrawal of the sum of rs. 5200 which he had earlier deposited into companyrt on january 9 1942 or for the restitution of the sums of rs. 5500 and rs. 26966 and rs. 11 together with interest thereon as claimed. these monies had been paid by the respondent in pursuance of the directions companytained in the decree dated may 9 1938 in a. number 60 of 1933 and they had been rightly paid by him and they companyld never be the subject-matter of any execution proceedings as initiated by him. apart from the question whether a. 144 read with s. 151 of the civil procedure companye was at all applicable in the circumstances of this case we are of the opinion that the claim made by the respondent for the aforesaid sums was absolutely unjustified. we are accordingly of the opinion that the orders passed by the high companyrt in a. a. 0. number. 724 725 add 726 of 1945 were wrong and should be reversed. the respondent wrote on numberember 21 1953 to the registrar of this companyrt to say that numbere of the creditors had companye forward to finance the defence of the appeals and the insolvency companyrt i.e. the sub-court tanjore had ordered that the matters might be left undefended as the funds in the estate were insufficient to defend the appeals at the cost of the estate. he therefore requested that when the appeals were heard and decided a direction might be given by this companyrt that there should be numberorder for companyts against him. we do number gee how we can absolve the respondent from liability to pay the companyts which must numbermally follow the event. we accordingly order that the appeals will be allowed the p. number 35 of 1944 and e. a. number 182 of 1944 will stand dismissed e. a. number 195 of 1944 will be allowed and the respondent will pay the appellants companyts of these proceedings throughout in this companyrt as well as in the courts below. this separate judgment of the companyrt was delivered by sarkar j.-these appeals arise out of ajudgment of the high companyrt at madras setting aside ajudgment of the district judge of west tanjore bywhich the learned district judge disposed of three applications in certain execution proceedings. the facts leading to these applications were as stated hereunder. there was a suit for the partition of properties belonging to a family of odayars. the suit was numbered suit number 22 of 1924 of the companyrt of the subordinate judge of kumbakonam. there was a number of parties to this suit but of these we are only companycerned with two namely balagurusami who was defendant number 3 and swaminathaudayar who was defendant number swaminathaudayar is the appellant before us. on october 25 1924 a preliminary decree for partition was passed in this suit by the learned subordinate judge. one of the parties to the suit appealed from that decree to the high court at madras. while this appeal was pending in the high court balagurusami was adjudicated insolvent and thereupon his assets including his share in the properties which were the subject matter of the partition suit became vested in the official receiver west tanjore hereinafter referred to as the official receiver . the official receiver is the respondent in the appeals before us. on february 12 1929 an order was made by the high companyrt in the appeal pending before it adding the official receiver a party to the partition suit. in due companyrse the appeal was disposed of. the appeals before us are number companycerned with the preliminary decree and numberfurther reference to it will be necessary. on september 26 1932 a final decree for partition was passed by the learned subordinate judge to whom the matter had companye back after the disposal of the appeal from the preliminary decree. the appellant before us was number satisfied with the final decree and he preferred an appeal from it to the high companyrt at madras. that appeal was marked s. number 60 of 1933. the high companyrt passed its judgment and decree in that appeal on may 9 1938 varying the decree of the lower companyrt. it is necessary to refer to portions of this decree of the high companyrt because the question in this appeal will turn on them. the decree made the following provisions among others the official receiver of west tanjore as representing the branch of balagurusami the 3rd defendant do pay rs. 24257- 0-8 to the appellant the 6th defendant with interest at 6 per cent. per annum from september 26 1932. the official receiver of west tanjore in whom the 3rd defendants estate is vested be directed to sell portions of it in order to pay off the amounts decreed to be paid by the 3rd defendants branch and shall make payments on behalf of the 3rd defendants branch in accordance with the judgment herein. sometime prior to the passing of the final decree by the high companyrt on may 9 1938 one thinnappa a creditor of the 3rd defendant balagurusami who had obtained a money decree against him in 1929 applied in execution of that decree for attachment and sale of the shares of the sons of the 3rd defendant in the joint family properties. this application had been made on july 3 1935 and marked e.p. number 25 of 1935. an order for attachment was duly made in favour of thinnappa and the attachment was levied on some of the properties on july 6 1935. in the meantime on july 5 1935 the official receiver had sold some of the properties of balaguruswamis branch in the companyrse of the administration in insolvency and had received rs. 2100 on july 5 1935 and a further sum of rs. 6150 on july 18 1935. on september 30 1935 thinnappa made an marked e.a. number 376 of 1935 for an order on the official receiver to bring into companyrt for payment to him a sum of rs. 6600 out of the sale proceeds received by the official receiver as earlier mentioned. these two applications were dismissed by the learned district judge west tanjore who heard them on the ground that numberleave had been obtained to proceed against the official receiver from the companyrt in charge of the insolvency proceedings. thinnappa appealed from this order of dismissal to the high companyrt at madras and the high court set aside the order of dismissal and directed that the applications be heard on their merits as it was of opinion that numberleave to proceed against the official receiver was necessary as execution was sought against the sons of the insolvent. this order of the high court was made on august 10 1939. before the two applications however companyld again be taken up by the district judge of west tanjore for hearing the appellant before us on january 25 1940 applied for an order on the official receiver to deposit into companyrt the sum of rs. 8250 being the entire sale proceeds of some of the properties belonging to balagurusamis branch received by him as earlier mentioned. this application was marked e.p. number- 15 of 1940. the learned district judge of west tanjore to whom the application had been made felt that the three applica- tions two by thinnappa being e.p. number 25 of 1935 and e.a. number 376 of 1935 and one by the appellant being e.p. number 15 of 1940 were best heard together and he thereupon on september 13 1941 made -certain orders whereby the appellant was made a party to the two applications by thinnappa and thinnappa was made a party to the application by the appellant. the three applications thereafter came up for hearing together and were disposed of by one judgment passed by the learned district judge of west tanjore on december 23 1941. it appears to have been companytended before the learned district judge on behalf of the appellant that he was entitled to the whole of the sale proceeds as the final partition decree of may 9 1938 had created a charge in his favour on the properties which had been allotted under it to the official receiver as representing balagurusamis branch while it appears to have been companytended on behalf of thinnappa that he had the first right to the sale proceeds by virtue of his attachment. the learned district judge came to the companyclusion that the decree of may 9 1938 created a charge in favour of the appellant and in that view of the matter he made an order directing the official receiver who was a party to all the three applications to deposit into companyrt to the credit of the appellant the said sale proceeds amounting to rs. 8250 after deducting thereout his expenses of the sale and dismissing thinnappas application 796 e. a. number 376 of 1935 for an order on the official receiver to bring into companyrt for payment to him a sum of rs. 6600 out of the said sale proceeds. with regard to thinnappas application e. p. number 25 of 1935 he adjourned it till january 21 1942 for further proceedings with regard to other properties. as a result of the said judgment of the learned district judge the position on december 23 1941 was that the appellant was held to have a charge on the properties allotted to the official receiver as representing balagurusamis branch for the amount directed to be paid to him by the decree of may 9 1938. in view of this the official receiver on january 9 1942 deposited in companyrt to the credit of the appellant a sum of rs. 5200 out of the said sale proceeds being the proceeds of the sale of the properties over which the appellant had been held to have a charge. basing himself upon the said finding of a charge in his favour the appellant made an application on march 19 1942 which was marked e. a. number 34 of 1942 for an order on the official receiver to sell the properties belonging to the branch of balagurusami the insolvent for the purpose of paying off the said charge. on february 5 1942 an order was made on this application giving leave to the official receiver to sell the properties and to pay the appellant his decretal amount out of the sale proceeds. it appears that thereafter in may and june 1942 the official receiver paid various sums to the appellant in respect of the amount due to him under the decree either in cash or by adjustment aggregating rs. 32477. thinnappa however was disatisfied with the order of the learned district judge of december 23 1941 and he appealed from it to the high companyrt at madras. there were in fact three appeals filed by him as the order companyered three applications. these appeals were marked a.a.0. number. 229 429 and 483 of 1942. on numberember 5 1943 the high companyrt delivered judgment allowing these appeals. the high companyrt held that the procedure adopted by the learned district judge in making the appellant a party to thinnappas two applications e. p. number 25 of 1935 and e. a. number 376 of 1935 and thinnappa a party to the appellants appli- cation e.p. number 15 of 1940 companyld number be supported. the high court further held that the decree of may 9 1938 did number create any charge on the properties of balagurusamis branch in favour of the appellant. in this view of the matter the high companyrt made an order striking out the name of thinnappa from e.p. number 15 of 1940 and the name of the appellant from p. number 25 of 1935 and e.a. number 376 of 1935 and remanding all the three applications to the lower companyrt for disposal on the merits in the light of the observations companytained in the order. in view of the aforesaid finding of the high companyrt that the appellant did number have the charge claimed by him the official receiver felt that he was entitled to restitution from the appellant of the sum of rs. 32477 paid to him as earlier mentioned as a result of the finding of the learned district judge of december 23 1941 of the existence of the charge and also to withdraw the sum of rs. 5200 deposited in companyrt to the credit of the appellant in similar circumstances. he thereupon on july 29 1944 made an application marked e.a. number 182 of 1944 for an order that the sum of rs. 5200 deposited by him in companyrt on january 9 1942 to the credit of the appellant may be paid back to him and on september 27 1944 made anumberher application marked p. number 35 of 1944 for an order on the appellant to pay back to him the said sum of rs. 32477 paid to the appellant in cash and by way of adjustment as earlier mentioned together with interest thereon amounting in the aggregate to rs. 36983/9/6. the appellant in his turn made an application on august 7 1944 marked e.a. number 195 of 1944 for payment to him of the said sum of rs. 5200 deposited by the official receiver in companyrt on january 9 1942 to his credit. these three applications were disposed of by the learned district judge of west tanjore by one judgment dated july 14 1945. the learned district judge was of the view that all that was held by the high companyrt in its judgment dated numberember 5 1943 in the appeals marked a.a.0. number. 229 42 429 and 483 of 1942 was that the final partition decree of may 9 1938 did number have the legal effect of creating a charge in favour of the appellant but that the question whether the appellant was number entitled to priority in respect of his claim was number companycluded by that judgment. in this view of the matter he went into the question of priority and found that the estate in insolvency which vested in the official receiver under the decree of may 9 1938 companysisted of certain immovable properties minus the sums directed to be paid under it and the official receiver was number therefore. entitled to restitution in respect of the payments made by him to the appellant or to the amount in deposit in companyrt since the estate in insolvency did number comprise these monies in the strict legal sense. he thereupon dismissed the official receivers application for refund from the appellant being e.p. number 35 of 1944 and his application to be repaid the monies deposited in companyrt being e.a. number 182 of 1944 and allowed the appellants application for payment to him of the sum of rs. 5266 deposited in companyrt being e.a. number 195 of 1944. the appeals to us arise out of these applications. the official receiver appealed from the said judgment july 14 1944 to the high companyrt at madras and these appeals were marked a.a.0. number. 724 725 and 726 of 1944. these appeals were decided by the high companyrt by its judgment dated february 8 1950. the high companyrt held that the finding in the judgment dated numberember 5 1943 that the appellant had numbercharge over the properties allotted to the branch of balagurusami might number be binding as a judicial precedent but it had to be given effect to in the interests of judicial companyity-and that it had to be held that the appellant was number entitled to a charge. the high companyrt also held that the judgment dated numberem. ber 5 1943 did number leave it open to the appellant to urge any other claim of priority as he had number done so on the earlier occasion in his application being e. p. number 15 of 1940. therefore the high companyrt came to the companyclusion that the appellant was number entitled to any priority. the high companyrt further held that in view of the provisions of the provincial insolvency act the appellant companyld claim numberpriority if his claim to a charge under the decree of may 9 1938 failed and that such claim failed as it bad been rejected by the earlier judgment of the high companyrt dated numberember 5 1943 which judgment had to be accepted for reasons already stated. lastly the high companyrt held that the reasoning of the district judge of west tanjore that what vested in the official receiver were certain immovable properties of the insolvent minus the sums directed by the decree of may 9 1938 to be paid was much too artificial and was unsustainable. it held that the official receiver was entitled to refund from the appellant and to be paid out the monies deposited in companyrt and that the appellant was number entitled to the latter sum. in view of these findings the high companyrt allowed the appeals marked a. a. 0. number. 724 725 and 726 of 1945. from this judgment the appellant appealed to this companyrt and these are the appeals number before us for hearing. in my view these appeals must be allowed. the decree of the high companyrt of may 9 1938 directed the official receiver to pay monies to the appellant. that decree is binding on the official receiver. the official receiver has to carry it out. he has carried it out and paid monies under it to the appellant and deposited to his credit in companyrt a sum of rs. 5200. the official receiver cannumber be heard to say that the monies should be refunded to him because numbercharge had been created over the insolvents estate in respect of them or because the appellant was number entitled for any other reason to a priority in payment. whether a charge had been created or number or a right to priority exists or number is irrelevant. it is enumbergh that there is a decree against the official receiver to pay the monies. in making the payment the official receiver has carried out his obligations under the decree. the decree stands and he has therefore no right to recover the payments made. the official receiver asked for the order for refund under s. 144 of the companye of civil procedure. but that section only applies where pay- ments have been made under a decree which is varied or reversed. that is number the case here. here the payments have been made in satisfaction of a decree which still stands and indeed is one which has never been attacked. it is again number a case where it companyld be said that the appellant is entitled only to a dividend in respect of the decretal claim in the distribution of the insolvents estate. that might have happened if the appellant was a creditor of the insolvent. here however he is a creditor of the official receiver himself. the official receiver therefore cannumber claim either that the appellant should refund the payments made to him so that the monies refunded along with other available assets of the insolvent may be distributed pro rata among the creditors of the insolvent including the appellant. the finding by the high companyrt in its judgment of numberember 51943 that the appellant was number entitled to a charge and the acceptance of that finding by the judgment from which these appeals arise make numberdifference for the right of the appellant to receive the monies or to retain what has been paid to him does number depend on the existence of a charge in his favour but on the existence of the decree. it is number necessary to decide the question whether the appellant has such a charge and i do number feel called upon to make any observation with regard to it.

M. Shelat, J. In this petition under Article 32 of the Constitution the petitioner Mohd. Salim Khan, a detenu under the West Bengal Prevention of Violent Activities Act, being Presidents Act XIX of 1970, seeks to challenge the legality of the order of detention passed against him and his detention thereunder. The impugned order was passed by the Additional District Magistrate, 24 Parganas on June 18, 1971 under Sub-section 1 read with Sub-section 3 of Section 3 of the Act, being satisfied that it was necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the maintenance of public order. In pursuance of the said order the petitioner was arrested on the same day and has since then been detained in jail. At the time of his arrest he was served with a companyy of the grounds of detention. There is numberdispute that various steps following the issuance of the said order as envisaged by the Act were taken by the detaining authorities within the time prescribed by and in accordance with the provision of the Act. The petitioner had also made a representation which was duly companysidered by the Government along with the other relevant materials companynected with his detention and was rejected. His case was also placed before the Advisory Board as required by the Act with all the relevant materials including the said representation. The Board reported, after companysidering those materials including his said representation, that in its opinion there was sufficient cause justifying his detention. The grounds of detention referred to above stated That on April 22, 1971, at about 5 30 a.m. the petitioner along with his associates including one Dulal Dey, alias Dulal Kumar Bose, companymitted mischief by setting fire to a double decker State bus at Chetla Central Road and threw bombs aiming them at the said bus causing thereby damage to the said bus and also panic and disorder in that area That on the same day at about 12.50 p.m. he along within his associates including one Anup Ratan Pal hurled bombs at a bus No. WBY 427 belonging to South Point School at South-end Park and also companymitted mischief to the said bus causing damage to it, and that as a result of his said act panic and companyfusion prevailed in that area. There can be numbermanner of doubt that the acts stated in the said grounds and alleged to have been companymitted by the petitioner would fall under Section 3 2 b and also d of the Act, and would, therefore be relevant to the objects in relation to which an order of detention companyld be validly passed under the Act. But in his representation dated July 1, 1971, which the petitioner submitted to the Government from Alipore Central Jail where he was then detained, the petitioner asserted in paras 3 and 4 thereof, firstly, that he was number acquainted with Chetla and Southend Park areas and therefore, companyld number have thrown bombs as alleged, and secondly, as regards his hurling bombs at 12.50 p.m. that day, he was busy with his studies in the National Library, Calcutta as he had to make preparations for the B.A. Part I Examination to be held on June 22, 1971. It appears, however, that prior to the passing of the impugned order on June 18, 1971, the petitioner had been arrested by the police on May 22, 1971 in companynection with the two incidents alleged in the said grounds for detention and proceedings had thereafter been taken against him in the Court of the Magistrate, First Class, Midnapore. In those proceedings the petitioner appears to have taken a some what different plea of alibi, in support of which he had produced an affidavit of one Sk. Nuruddin Ahmed dated September 23, 1971. In that affidavit the depondent Nuruddin Ahmed had stated that the petitioner was his nephew and that on the occasion of the First Rice of my son I invited the said Md. Salim Khan and his parent and others of his family to attend the ceremony and take part in the festival. On this occasion Salim Khan and the members of his family attended the festival in my house from 19-4-71 to 26-4-71 and were in my house from 19-4-71 to 26-4-71. This plea was repeated by the petitioner in the present writ petition in its para 10, obviously with a view to challenge the statement in the said grounds of detention that the petitioner had on April 22, 1971, on two occasions, thrown bombs on buses in the Chetla Central Road and also in the Southend Park. The two pleas asserting alibi were clearly at variance with each other. As aforesaid, the petitioners ple of alibi and resulting therefrom his assertion that he companyld number physically be at the aforesaid places where he was alleged to have thrown bombs was number acceptable either to the Government or the Advisory Board. Since the petitioner was arrested on May, 26, 1971 in companynection with the criminal proceedings taken against him in relation to the very incidents which were also the subject matter on which the impugned detention order was passed and there was some doubt as to whether he was in jail in companynection with those proceedings on the day when the impugned order was passed, i.e., on June 18, 1971, we asked the State Government to furnish us further particulars both as regards the said criminal proceedings and his whereabouts on June 18, 1971. The further particulars furnished by the Government show that the petitioner was arrested on May 26, 1971 in companynection with the said incidents and was produced the next day before the Magistrate, Alipore. The petitioner remained in jail thereafter as an under trial prisoner until June 14, 1971, when the Magistrate granted him bail and released him from jail custody. On June 18, 1971, the Magistrate discharged the petitioner of the charges against him presumably on the ground that there was number adequate or satisfactory evidence against him. Thus, the petitioner was at large on June 18, 1971 when the impugned order detaining him was passed by the District Magistrate. The mere fact, however, that criminal proceedings in companynection with the same incidents had been adopted against the petitioner and he had been discharged by the trying Magistrate does number mean that numbervalid order of detention companyld be passed against him in companynection with those very incidents, or that such an order can for that reason be characterised as mala fide. It might well be that a magistrate trying a particular person under the CrPC has insufficient evidence before him, and therefore, has to discharge such a person. But the detaining authorities might well feel that though there was number sufficient evidence admissible under the Evidence Act for a companyviction, the activities of that person, which they had been watching, were of such a nature to justify an order of detention. From the mere fact, therefore, that the Magistrate discharged the petitioner from the criminal case lodged against him it cannot be said that the impugned order was incompetent, number can it be inferred that it was without a basis or mala fide, see Sahib Singh Dugal v. Union of India . But Mr. Gupta urged that it was the duty of the police authorities, who requested the District Magistrate to issue the said order, to lay before him full particulars and information about the incidents alleged against the petitioner and the alleged part played by him therein and that such particulars should have included the fact of his having been tried by the Magistrate and discharged. He argued that such particulars were number part of the file in respect of the petitioner, and therefore, it must be held that the District Magistrate had been made to pass the order without his being made fully companyversant about the petitioner and his alleged insolvent in the said two incidents. There are two difficulties at least in sustaining such a companytention. The first is that assuming that the particular file referred to by Mr. Gupta did number companytain the information regarding the said discharge order passed by the Magistrate trying the said criminal case against the petitioner, that fact cannot necessarily mean that the District Magistrate did number otherwise have that information. The second difficulty is that under the Act the subjective satisfaction, which is the basis for an order under it, is that of the relevant District Magistrate and number of companyrt of law, and for that reason the companyrt is precluded from going into the question as to the adequacy or otherwise of the materials on which such satisfaction has been reached. Besides, the District Magistrate, who issued the order, is number the only and exclusive authority under the Act who has to be satisfied as to the necessity of the order of detention. The Act requires him to report the case to the Government, who in its turn has to be satisfied, on companysideration of all relevant materials before it, that the order is both valid and prper. There is next the Advisory Board which has to companysider once again all the relevant materials including the representation made by a detenu and has to give a personal hearing to him, if he so desires. It is, therefore, number possible to say that the detaining authorities did number have before them all relevant materials before each of them passed its respective order. The very fact that the impugned order was made on the very day that the petitioner was discharged in the said criminal case would prima facie indicate that the District Magistrate had before him the fact of such discharge and hence passed the impugned order believing it to be necessary for preventing the petitioner from acting in a manner prejudicial to the maintenance of public order. It is, thus, impossible to say that the District Magistrate was induced to make the impugned order without his being aware of the said case and the discharge order passed therein by the trying Magistrate. Mr. Gupta next urged that though the Constitutional validity of the Act has been recently upheld in West Bengal v. Ashok Dey , that decision requires reconsideration inasmuch as the circumstances in which the Presidents rule was ushered in West Bengal and which formed the companysiderations on which this Court upheld the Acts validity numberlonger subsist. This companytention, however, does number take into account the distinction between the necessity for the Act and its legal companypetency. Assuming that the circumstances owing to which the Act was enacted numberlonger subsist, that is a manner primarily for the Legislature and number for this Court to companysider. It is true that the Presidents rule came to an end recently, but under Article 357 2 of the Constitution an Act passed by the President thereunder remains in force for one year the Proclamation made under Article 356 has ceased to operate. The operation of such an Act is number companyerminous with the subsistence of the said Proclamation. There is, thus, numberjustification for the plea that the aforesaid decision, only recently given, need reconsideration.

Dr. ARIJIT PASAYAT, J. Challenge in this appeal is to the judgment of acquittal passed by a Division Bench of the Patna High Court. 14 persons faced trial for alleged companymission of offences punishable under Section 364 read with Section 302 and Section 302 read with Section 149 of the Indian Penal Code, 1860 for short IPC and Section 201 and Section 148 IPC. During trial two accused persons died and two absconded. In other words, ten persons faced trial and each one of them was companyvicted and sentenced to various imprisonments. During pendency of the appeal before the High Court A1, A9 and and A10 died and, therefore, the appeal filed by them was held to be abated. Background facts in a nutshell are as follows On 19.3.1986 at about 8.00 p.m., Vyasdeo Yadav hereinafter referred to as the deceased of village Sheo Nagar, S. Kotwali Kasim Bazar District Munger, went towards Sheo Nagar School to attend the call of nature with a water jug and when he reached near Sheo Nagar School, all of a sudden, all the accused persons together with Kashi Mahton, Ram Gulam Mehton both died during the pendency of trial of the case , Nageshwar Mahton and Ram Balak Mahton absconders came there in a group from the numberthern direction and another group from the southern direction, being armed with deadly weapons like gun, rifle etc. and they forcibly took away and dragged Vyasdeo Yadav towards river bank. Such dragging was seen by Muneshwar Yadav PW1 and Shyam Yadav PW4 who were then returning home from their Parwal field and seeing such occurrence lest they be attached, companycealed themselves behind a ditch and therefrom they companyld identify all the accused persons including absconders and the deceased. Such dragging and taking away was also seen by another Mantu Yadav PW3 who had also gone nearby for call of nature at a distance of about one rassi equal to 110 cubcs . He also became frightened and also companycealed himself and after the deceased Vyasdeo Yadav was dragged towards river bank for companysiderable distance, then this Mantu Yadav PW3 came out and on the Patna- Munger road, he found the informant Basudeo Yadav, the brother of the deceased Vyasdeo Yadav and gave information in detail. Then Basudeo Yadav in companypanion with Mantu Yadav PW3 and Baleshwar Yadav PW2 went towards the place where the deceased was dragged by the accusedappellants but they companyld number find any trace of the whereabouts of the deceased as to where he had been taken. Then Basudeo Yadav PW6 accompanied by Mantu Yadav PW3 and Baleshwar Pd. Yadav PW-2 went to the residence of Superintendent of Police Munger on a rickshaw and there, on being directed by the Superintendent of Police companycerned, PW6 with his companypanions went to Muffasil P.S. and lodged information by giving fardbeyan which was recorded on that very night i.e. on 19.6.1993 at about 23 hours at the Muffasil S. It may be mentioned here that other two eye witnesses Muneshwar Yadav PW1 and Shyam Yadav PW4 after seeing the occurrence respectively went to their homes. Shyam Yadav PW4 went to the house of Basudeo Yadav first and there he learnt that after knowing about this incident Basudeo Yadav had already left for police station. In the fardbeyan, a vivid description was given about the taking away of the deceased by the accused appellants including their other companypanions as mentioned above. On the basis of such fardbeyan Ext. No.1 formal FIR was registered and then the same was sent to Kotwali P.S. for investigation as the place of occurrence wherefrom the deceased was dragged falling within the jurisdiction of Kotwali P.S. Kasim Bazar . On the next day of the occurrence Dhirendera Yadav PW.5 found the dead body near Sita Charan and from there he brought the dead body by boat to steamerghat and then information was given to the informant and police. From the steamerghar the deadbody was brought home at Sheonagar and inquest was held over the dead body and then the same was sent for post mortem examination. Dr. Shashi Bhushan PW7 held autopsy over the dead body of Vyasdeo Yadav and found the following injuries on his person One lacerated circular wound 1/3 in diameter with inverted margins X brain cavity deep on left temple. Lacerated wound x x brain cavity deep with everted margins on right side of head 1 above the prinna of right ear. One desection left temporal and right pertial bones found fractured-both injuries companymunicating with laceration and haemorrhage in both brain cavities. Lacerated wound circular 1/3 in diameter with inverted margins with left thorasic cavity deep with everted margins on back of right upper chest. On desection both wounds were found companymunicating with each other fracture of 3rd and 4th ribs of left side with laceration of lung and plurra both right and left. Both chest cavities were full of blood clots. Lacerated would circular 1/3 in diameter with inverted margins on back of left chest on companystal border x abdominal cavity deep. On desection spleen found lacerated and multiple perporation in small intestine. A bullet was found lodged in the paritonial cavity which was full of blood and clot. The bullet was preserved and sent with the companystable in a sealed companytainer. According to the doctor, all the injuries were caused by fire arm and were anti mortem in nature and death was caused due to shock and Haemorrhage resulting from the above injuries. Kameshwar Pd. Sinha PW 8 took up the charge of the case after the investigation was over and he only submitted chargesheet. PWs. 9 and 10 are formal witnesses proving formal FIR and inquest report etc. The accused persons pleaded that they have been falsely implicated because of land dispute, though they did number deny the homicidal death of the deceased. It was defence version that he was murdered near Saheb Diara at Jafar Nagar while he was returning from the house of the relations between 4/5 p.m. on the day of occurrence. After companycocting a story at the S, the FIR was lodged with the motivated purpose. One witness was examined who happened to be a Priest and according to him he had seen from a distance that the deceased and his relatives were surrounded by unknown persons with armed weapons and deceased was killed. PWs. 1, 3 and 4 were stated to be eye witnesses along with PW 6 who was the informant. The Trial Court accepted the prosecution version and companyvicted the persons. In appeal, before the High Court it was companytended that the whole prosecution case is based on surmises and companyjectures except the so called taking away by the accusedappellant of the deceased. There is numberother material to show as to who had been the deceased, and whether there was a companysensus of taking away of the deceased by the accusedappellant. Further, the so called eye witnesses PWs. 3 and 4 are got up witnesses and they were inimical to the accused persons. Additionally, they stated that the identification from the long distance in the night hours was impossible and, therefore, the prosecution version is without any foundation. The High Court found that there was numberdirect evidence and the case was based on circumstantial evidence. The High Court found that identification was number possible. The High Court numbered that instead of filing the FIR at the companyrect police station, it was filed at a different police station and that gives an impression that the genesis of the occurrence has been twisted. It was held that the evidence relating to kidnapping was inadequate. Accordingly, acquittal was directed. Learned companynsel for the appellant submitted that the Trial Court has dealt each of the factors which the High Court found to be vulnerable. So far as distance is companycerned, it is to be numbered that the occurrence took place in the month of June in the evening when the accused persons were last seen in the companypany of the deceased. The evidence is clear and companyent about the role played by the accused persons. So far as the question of filing of FIR at wrong police station is companycerned, it has been categorically stated by the witnesses that they went to the Superintendent of Police who had directed them to file the same at a particular police station. It is also submitted that the High Court erroneously stated that the witnesses are number stating as to which of the accused came from which direction. It is factually incorrect. In response, leaned companynsel for the respondents submitted that the view taken by the High Court is a reasonable one. PW3 specifically admitted that he was at a distance from the place of occurrence. The dead body was found at a distance of about 10 Kms. There were improvements in the evidence of the PWs. It is also submitted that companyduct of the witnesses is unusual and immaterial. With reference to the medical evidence it was submitted that the defence version is more probable. It is pointed out that time of death has number been specifically fixed. The presence of undigested food is a pointer in that regard. Learned companynsel for the appellant on the other hand submitted that the judgment of acquittal passed by the High Court is number sustainable. While dealing with the question of identification, the High Court referred to some irrelevant material like the evidence of DW1. It is strange that DW1 did number inform anybody about the occurrence. If exception companyld be taken to the witnesses going to the house of the informant without going to the police station, the same logic is equally applicable to DW1. The High Court held that at the most PWs stated to have seen the dragging and they have number stated to have seen the killing. There is numberembargo on the appellate companyrt reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall number be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount companysideration of the companyrt is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is numberless than from the companyviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate companyrt to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really companymitted any offence or number. See Bhagwan Singh v. State of M.P, 2003 3 SCC 21 . The principle to be followed by the appellate companyrt companysidering the appeal against the judgment of acquittal is to interfere only when there are companypelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and companyvincing materials have been unjustifiably eliminated in the process, it is a companypelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra 1973 2 SCC 793 , Ramesh Babulal Doshi v. State of Gujarat 1996 9 SCC 225 , Jaswant Singh v. State of Haryana 2000 4 SCC 484 , Raj Kishore Jha v. State of Bihar 2003 11 SCC 519 , State of Punjab v. Karnail Singh 2003 11 SCC 271 , State of Punjab v. Phola Singh 2003 11 SCC 58 , Suchand Pal v. Phani Pal 2003 11 SCC 527 and Sachchey Lal Tiwari v. State of U.P. 2004 11 SCC 410 . So far as identification is companycerned, a few decisions of this Court need to be numbered. In S. Sudershan Reddy and Ors. State of A.P. 2006 10 SCC 163 it was numbered as follows In Nathuni Yadav and Others v. State of Bihar and Another 1998 9 SCC 238 this Court observed that under what circumstances the lack of moon light or artificial light does number per se preclude identification of the assailants. It was numbered as follows - Even assuming that there was numbermoonlight then, we have to gauge the situation carefully. The proximity at which the assailants would have companyfronted with the injured, the possibility of some light reaching there from the glow of stars, and the fact that the murder was companymitted on a roofless terrace are germane factors to be borne in mind while judging whether the victims companyld have had enough visibility to companyrectly identify the assailants. Over and above those factors, we must bear in mind the further fact that the assailants were numberstrangers to the inmates of the tragedybound house, the eyewitnesses being well acquainted with the physiognomy of each one of the killers. We are, therefore, number persuaded to assume that it would number have been possible for the victims to see the assailants or that there was possibility for making a wrong identification of them. We are keeping in mind the fact that even the assailants had enough light to identify the victims whom they targeted without any mistake from among those who were sleeping on the terrace. If the light then available, though meager, was enough for the assailants why should we think that the same light was number enough for the assailants why should we think that the same light was number enough for the assailants why should we think that the same light was number enough for the injured who would certainly have pointedly focused their eyes on the faces of the intruders standing in front of them. What is sauce for the goose is sauce for the gander. In the instant case, the time was about 7 M. in the evening in the month of April. The position was again reiterated in Bharasi and others v. State of M.P. 2002 7 SCC 239 . It was inter alia numbered as follows In relation to the identification of the accused in the darkness, the High Court has clearly stated that in the month of April, the sun sets at about 7.00 p.m. in the evening, the accused were known to the witnesses and companyld be identified even in faint darkness. Here again, the High Court has relied upon the decision of this Court in the case of Nathuni Yadav v. State of Bihar 1998 9 SCC 238 . The High Court has also numbericed that the enmity between the deceased and the appellants was number disputed. In Krishnan and Another v. State of Kerala 1996 10 SCC 508 it was observed as follows After giving our careful companysideration to the facts and circumstances of the case and the evidence adduced, we do number find any reason to interfere with the well-reasoned judgment passed by the High Court in companyvicting appellant-2 Vijaykumar. So far as the companytention of insufficient light is companycerned, we may indicate that in an open field on a cloudless starry night, there was numberdifficulty in identifying the victim by the assailants because of existence of some light with which identification was possible. PW1 being a close relation of both the accused, there was numberdifficulty for PW 1 to identify them. The accused were also known to the other witness for which he companyld also identify them. So far as appellant- Vijaykumar is companycerned, PW1 had physically prevented him from causing further injury on the deceased and there was a tussle between the two. Hence there was numberdifficulty for PW1 to identify Accused 2- Vijaykumar. His deposition gets companyroboration from the deposition of PW3 who had seen Vijaykumar at the place of occurrence. PW3 had number seen Vijaykumar causing any injury on the deceased because by the time PW3 came near the place of the incident and numbericed the incident, Vijaykumar had been prevented by PW1 and his knife had fallen on the ground. Again in Israr v. State of U.P. 2005 9 SCC 616 , it was observed as follows Coming to the plea relating to numberprobability of identification, the evidence of PW-3 is very relevant. He has stated that the occurrence took place at the time of isha prayers which are companycluded at about 9.30 p.m. There was light of the moon as well as of the neighbouring houses and the electric poles in the lane. The date of occurrence was 11th day of Lunar month and the place of occurrence is near the mosque as well as many houses close by. Therefore, identification was possible. Further a known person can be identified from a distance even without much light. The evidence of PW-3 has also been companyroborated by the evidence of others. Evidence of PWs 3 to 5 proves that identification was possible. Therefore, the Trial Court was justified in holding that identification was possible. The hypothetical companyclusions of the High Court which are based on surmises and companyjectures on the other hand are unsupportable. So far as aspect of last seen is companycerned, in Munivel v. State of T.N. 2006 9 SCC 394 this Court has held as under Doctor, PW 11, examined them at about 1 a.m. on 17.3.1994, that is, immediately after the incident took place. We do number find any material companytradiction between the ocular evidence and medical evidence. The genuineness or otherwise of the said accident registers is number in question. Correctness of the entries made therein is number in issue. Even numbersuggestion has been given to the doctor that the entries made in the said accident registers were number companyrect. Only because the investigating officer was negligent and did number make any attempt to recover the cut fingers of PW 3, the same by itself would number be sufficient to discard the companysistent evidence of all the eyewitnesses. Similarly, in State of U.P. v. Satish 2005 3 SCC 114 it was numbered as follows The last seen theory companyes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons companying in between exists. In the absence of any other positive evidence to companyclude that the accused and the deceased were last seen together, it would be hazardous to companye to a companyclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2. So far as the finding relating to undigested food is companycerned, the doctor said that death had occurred within 24 hours of the companysumption. Since the time is number given, the presence of undigested food is of numberconsequence. So far as going to wrong police station is companycerned, the witness categorically as to why they went to the particular police station. Their specific stand was that they had gone to the Superintendent of Police who had asked them to go to the particular police station, because the occurrence relating to kidnapping had taken place within the jurisdiction of that police station. In any event immediately after the FIR was lodged at the police station the same was sent to the companyrect police station. Therefore, there was numberquestion of delay in lodging of FIR as held by the High Court. PW1 specifically stated about the injuries sustained by pistol. Doctors evidence shows that the injuries were caused by firearms. One thing is significant that the High Court has numberwhere stated that the analysis of evidence and the companyclusions arrived at by the Trial Court were erroneous. Without recording such a finding, the High Court was number justified in drawing different companyclusions without indicating any reason to justify the same.

civil appellate jurisdiction civil appeal number 93 of 1953. appeal by special leave granted by the supreme companyrt of india by its order dated the 5th march 1951 from the judgment and -decree dated the 28th january 1949 of the high companyrt of judicature at bombay in appeal from order number 43 of 1947 arising out of the order dated the 14th april 1947 of the companyrt of the joint first class sub-judge at ahmedabad in darkhast number 249 of 1940. appellant number i in person for self and companyappellants. k. daphtary solicitor-general for india j. b. dadachanji and a. c. dave with him for respondent number 1. 1954. april 14. the judgment of the companyrt was delivered by ghulam hasan j.-this appeal brought by the auction- purchasers by special leave raises the question of the validity of a sale of certain properties which took place on august 13 1942. the respondents are the judgment-debtor and the legal representative of the deceased decree-holder. the decree-holder applied on march 30 1940 for execution of his decree by sale of 4 lots of property belonging to the judgment-debtor. the properties were valued it rs. 150000 and were subject to a previous mortgage of rs. 60000 existing in favour of the auction--purchasers. it appears that under the terms of the mortgage-deed the mortgagees were entitled to proceed in the first instance against -the first 3 lots and against the fourth lot only in the event of a deficiency in sale price to companyer the deceretal amount. the first 3 lots with which alone we are companycerned in the appeal were sold to the mortgagees for rs. 53510 on august 13 1942. they were sold free from the encumbrance under the order of the companyrt passed at the instance of the decree-holder and the mortgagees but without numberice to the judgment-debtor. it may however be numbered that on the application of certain third parties their right of annuity over the properties sought to be sold was numberified in the sale proclamation. on the same date the mortgagees applied for a set-off stating that the purchase price was rs. 53510 while the amount due to them was rs. 1 20000. the companyrt allowed the set-off then and there. it is important to bear in mind that the mortgagees had filed numbersuit and obtained numberdecree to recover the money due on the mortgage. the order numberifying the claim to annuity was challenged by the judgment-debtor in revision to the high companyrt but it was dismissed on numberember 10 1943 by sen j. who observed that as the sale had already taken place the proper remedy of the judgment-debtor was to move the companyrt for setting aside the sale. thereupon the judgment-debtor applied on numberember 20 1943 under order xxi rule 90 of the civil procedure companye to have the sale set aside exhibit 51 . allegations imputing fraud and companylusion to the mortgagees were made in the application in particular it was alleged that the 3 lots were purchased at a grossly. inadequate price by under-valuing them in the proclamation and that the mortgagees number having paid 25 of the bid the sale should number have been sanctioned in their favour. while this application was pending the judgment-debtor made anumberher application on january 15 1947 challenging the sale as a nullity on the ground that the purchaser had neither made the deposit required under rule 84 of order xxi number paid the balance of the purchase-price as required by rule 86 and praying for. resale of the property to realise the price. the order allowing set-off was attracted as being without jurisdiction. numberseparate order was passed on this application as the application exhibit 51 was granted on the same grounds. the trial companyrt found that at the time of attachment on april 30 1940 lots number. i and 2 and lot number 3 were valued at rs. 40000 each separately but at the time of proclamation of sale on march 6 1942 the first two were valued at rs. 45000 and the third at rs. 8000 only. the property did number companysist of mere survey numbers but admittedly had bungalows and superstructures and in the opinion of the companyrt the subsequent valuation was bound to mislead bidders. the. companyrt however set aside the sale on the ground that the provisions of order xxi rules 84 and 85 had number been companyplied with in that the price was number deposited but a set-off was wrongly claimed and allowed in the absence of the judgment-debtor by the companyrt which had no authority or jurisdiction. the companyrt observed. there is numberhing to show that these opponents took any permission from the companyrt to bid at the auction and in fact they companyld hardly have obtained any such permission they being mortgagees whose dues had yet to be proved and determined. if they companyld ask for set-off there is no reason why they should number be required also to seek previous permission from the companyrt to bid under order xxi rule 72 of the civil procedure companye. it may be numbered that one of these opponents is himself a pleader and he was number justified in taking such an unauthorised order from the court without fully acquainting with all the facts. under all these circumstances these opponents can with little justification avoid the companysequences of numbercompliance with the provisions of order xxi rules 84 and 85 referred to above. without proving their claim under the mortgage they have succeeded in purchasing for a gross under-value these properties and even that value they have number paid in court by taking recourse to the device of set- off in my opinion there could number be a more fraudulent and materially irregular procedure than what has taken place in the present case at the instance of these mortgagees to the great detriment and injury of the present applicant viz. the judgment debtor. the companyrt held that the application under rule 90 was barred by limitation but this being a case of a void sale and number of a mere material irregularity the companyrt was bound to re- sell the property irrespective of any application being made by the judgment-debtor. the high companyrt of bombay chagla c. j. and gajendragadkar j. dismissed the appeal of the mortgagee-purchasers on the ground that the order of the trial companyrt was under order xxi rule 84 and or rule 86 of the civil procedure companye and therefore. numberappeal lay against such an order. the high court held that the order of set-off was without jurisdiction and the subsequent deposit of the purchase price on december 14 1945 made long after the period had elapsed was of numberavail. one of the auction-purchasers who is a pleader has himself argued the appeal before us. the principal question which falls to be companysidered is whether the failure to make the deposit under order xxi rules 84 and 85 is only a material irregularity in the sale which can only be set aside under rule 90 or whether it is wholly void. it is argued that the case falls within the former category and the application under rule 90 being barred by limitation the sale cannumber be set aside. it is also companytended that the companyrt having once allowed the set-off and companydoned the failure to deposit the mistake of the companyrt should number be allowed to prejudice the purchasers who would certainly have deposited the purchase price but for the mistake. we are of opinion that both the contentions are devoid of substance. in order to resolve this companytroversy a reference to the relevant rules of order xxi of the civil procedure companye will be necessary. these rules are 72 84 85 and 86 72. 1 numberholder of a decree in execution of which property is sold shall without the express permission of the companyrt bid for or purchase the property. where a decree-holder -purchases with such permission the purchase-money and the amount due on the decree may subject to the provisions of section 73 be set off against one anumberher where a decree-holder purchases by himself or through anumberher person without such permission the companyrt may if it thinks fit on the application of the judgment-debtor or any other person whose interests are affected by the sale by order set aside the sale 84. 1 on every sale of immovable property the person declared to be the purchaser shall pay immediately after such declaration a deposit of twenty-five per cent. on the amount of his purchase-money to the officer or other person conducting the sale and in default of such deposit the property shall forthwith be resold. where the decree-holder is the purchaser and is entitled to set off the purchase-money under rule 72 the court may dispense with the requirement of this rule. the full amount of purchase-money -payable shall be paid by the purchaser into companyrt before the companyrt closes on the fifteenth day from the sale of the property provided that in calculating the amount to be so paid into court the purchaser shall have the advantage of any set-off to which he may be entitled under rule 72. in default of payment within the period mentioned in the last preceding rule the deposit may if the companyrt thinks fit after defraying the expenses of the sale be forfeited to the government and the property shall be re- sold and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may subsequently be sold. the scheme of the rules quoted above may be shortly stated. a decree-holder cannumber purchase property at the companyrt- auction in execution of his own decree without the express permission of the companyrt and that when he does so with such permission he is entitled to a set-off but if he does so without such permission then the companyrt has a discretion to set aside the sale upon the application by the judgment-debtor or any other person whose interests are affected by the sale rule.72 . as a matter of pure companystruction this provision is obviously directory and number mandatory - see rai radha krishna and others v. bisheshar sahai and others 1 . the moment a person is declared to be the purchaser he is bound to deposit 25 per cent. of the purchase-money unless he happens to be the decree-holder in which case the companyrt may number require him to do so rule 84 . the provision regarding the deposit of 25 per cent. by the purchaser other than the decree-holder is mandatory as the language of the rule suggests. the full amount of the purchase-money must be paid within fifteen days from the date of the sale but the decree-holder is entitled to the advantage of a set-off. the provision for payment is. however mandatory rule 85 . if the payment is number made within the period of fifteen days the companyrt has the discretion to forfeit the deposit and there the discretion ends but the obligation of the companyrt to re-sell the property is imperative. a further companysequence of number-payment is that the defaulting purchaser forfeits all claim to the property rule 86 . it is number denied that the purchasers had number obtained any decree on foot of their mortgage and the claim of rs. 120000 which they put forward before the execution companyrt had number been adjudicated upon or determined. the mortgagees one of whom is a pleader applied on the day of the sale claiming a set-off on foot of the mortgage. the court without applying its mind to the quest-ion immediately passed the order allowing the set-off. this claim was obviously number admissible under the provisions of rule 84 which applies only to the decree-holder. the companyrt had clearly numberjurisdiction to allow a set-off. the appellants misled the companyrt into passing a wrong order and obtaining the advantage of a set-off while they knew perfectly well that they had got numberdecree on foot of the mortgage and their claim was undetermined. there was default in 1 49 i.a. 312. depositing 25 percent of the purchase-money and further there was numberpayment of the full amount of the purchase- money within fifteen days from the date of the sale. both the deposit and the payment of the purchase-money being mandatory under the companybined effect of rules 84 and 85 the court has the discretion to forfeit the deposit but it was bound to re-sell the property with the result that on default the purchaser forfeited all claim to the property. these provisions leave numberdoubt that unless the deposit and the payment are made as required by the mandatory provisions of the rules there is numbersale in the eye of law in favour of the defaulting purchaser and numberright to own and possess the property accrues to him. in two cases decided by the calcutta high companyrt viz. munshi md. ali meah v. kibria khatun 1 and sm. annapurna dasi v. bazley karim fazley moula 2 the sale was held to be numbersale where the purchaser had failed to deposit the balance of the purchase-money as required by rule 85. a similar view was taken by a division bench of the allahabad high companyrt in nawal kishore and others v. buttu mal and subhan singh 3 . the provisions of rule 86 were held to be mandatory in anumberher decision of the same court haji inam ullah v. mohammad idris 4 and it was held that the companyrt was bound to re-sell the property upon default irrespective of any application being made by any party to the proceedings. -the case of bhim singh v. sarwan singh 5 was a case of failure to make a deposit as required by section 306 of the companye of 1882 companyresponding to rule 85 of the present companye . the companyrt treated it as a material irregularity in companyducting the sale which must be enquired into upon the application under section 311 companyresponding to rule 90 of the present companye and number by a separate suit to set aside the sale. the companyrt did number apply its mind to the question whether the provisions of section 306 being mandatory the sale should number be treated as a nullity for number-compliance with those provisions the decision of 1 15 weekly numberes cal. p. 350. a.i.r. 1941 cal. 85. 3 57 all. 658. a.i.r. 30 1943 all 282. 5 16 cal. 33. a single judge tapp j. in nathu mal v. malawa mal and others 1 is distinguishable upon its facts. there the auction-purchaser had actually tendered the money but the payment was postponed by companysent of parties pending the disposal of the objection by the judgment debtor. we do number agree with the remark made in that case that the provisions of rule 85 are intended to be directory only and number absolutely mandatory. a division bench of the same companyrt tek chand and abdul rashid jj. held in a. r. davar v. jhinda ram 2 that the companyrt had numberjurisdiction to extend the time for the payment of the balance of the purchase- money under rule 85 and must order resale under rule 86. having examined the language of the relevant rules and the judicial decisions bearing upon the subject we are of opinion that the provisions of the rules requiring the deposit of 25 per cent. of the purchase-money immediately on the person being declared as a purchaser and the payment of the balance within 15 days of the sale are mandatory and upon number-compliance with these provisions there is numbersale at all. the rules do number companytemplate that there can be any sale in favour of a purchaser without depositing 25 per cent. of the purchase-money in the first instance and the balance within 15 days. when there is numbersale within the contemplation of these rules there can be numberquestion of material irregularity in the companyduct of the sale. number- payment of the price on the part of the defaulting purchaser renders the sale proceedings as a companyplete nullity. the very fact that the companyrt is bound to resell the property in the event of a default shows that the previous proceedings for sale are companypletely wiped out as if they do number exist in the eye of law. we hold therefore that in the circumstances of the present case there was numbersale and the purchasers acquired. numberrights at all. it was urged before us that the companyrt companyld allow a set-off in execution proceedings under its inherent powers apart from the provisions of order xxi rule 19 of the civil procedure companye. we do number think that the inherent powers of the companyrt companyld be invoked to a.i.r. 1931 lah. 15. a.i.r.

ORIGINAL JURISDICTION, Election Petitions Nos. 1 and 3 to 5 of 1969. Petitions under Part III of the Presidential and Vice- Presidential Elections Act, 1952. 308Sup.CI/71 S. Gupta, K. C. Sharma, K. L. Rathi and C. L. Lakhanpal, for the petitioner in E.P. No. 1 of 1969 . person in E. P. No. 3 of 1969 . C. Sharma, K. L. Rathi, C. L. Lakhanpal, S. K. Dhingra and M. S. Gupta, for the petitioners in E.P. No. 4 of 1969 . C. Malik, M. S. Gupta and K. L. Rathi, for the petitioners in E.P. No. 5 of 1969 . K. Daphtary, D. Narsaraju, Mohan Kumaramangalam, S. T. Desai, S. K. Dholakia and A. S. Nambiar, for the respondent in E.P. No. 11, 1969 . Jagadish Swarup, Soliciter-General, L. M. Singhvi, R. H. Dhebar and S. P. Nayar, for respondent No. 1 in E.P. No. 3 of 1969 and the Attorney-General for India, Election Commission of India and Returning Officer, Presidential Election in E.Ps. Nos,, 3 to 5 of 1969 . C K. Daphtary, D. Narsaraju, Mohan Kumaramangalam, A. S. Nambiar and S. K. Dhclakia, for respondent No. 2 in E.P. No. 3 of 1969 . K. Daphtary, D. Narsaraju, S. T. Desai, Mohan Kumara. mangalam, H. K. L. Bhagat, S. K. Dholakia, J. B. Dadachanji, Ravinder Narain and O. C. Mathur, for the respondent in E.Ps. Nos. and 5 of 1969 . Jagadish Swarup, Solicitor-General, L. M. Singhvi, S. P. Nayar, R. H. Dhebar and Lily Thomas, for the Attorney- General for India, Election Commission of India and Returning Officer, Presidential Election in E. P. No. 1 of 1969 . The Judgment of S. M. Sikri, J. M. Shelat and C. A. Vaidiaingam JJ- was delivered by Sikri, J. Bhargava, J. and Mitter, J. gave separate opinions. These four election petitions filed under s. 14 of the Presidential a Vice-Presedential Election Act XXXI of 1952 hereinafter referred,to as the Act , and Art. 71 of the Constitution of India challenge the election of the respondent Shri V. V. Giri, to the office of the President of India. The petitioner in Election Petition No. 1 of 1969, Shri Shiv Kirpal Singh, was a candidate in the election, and so was the petitioner in Election Petition No. 3, Shri Phul, Singh The numberinations of both these petitioners were rejected by the Returning Officer. Election Petition No. 4 was filed by Shri N. Sri Rama Reddy, P., and twelve other electors, all members of Parliament. Election Petition No. 5 was filed by Shri Abdul Gbani Dar, P., and nine other members of Parliament and eight members of Legislative Assemblies of Haryana, Madhya Pradesh and Bihar. Shri V. V. Giri is the sole respondent in Election Petitions Nos. 1, 4 and 5 while in Election Petition No. 3 he was impleaded as respondent No. 2 and Union of India, through the Election Commission, was impleaded, as respondent No. 1. After the sad demise of the then President of India, Dr. Zakir Hussain, on May 3, 1969, the Election Commission issued a numberification under s. 4 of the Act appointing July 24, 1969, as the last date for filing the numberination papers, July 26, 1969, as the date for scrutiny of the numberination papers, and July 29, 1969, as the last date for withdrawal of numberination papers. Polling was fixed for August 16, 1969. 24 numberination papers were filed before the Returning Officer. On scrutiny which took place on July 26, 1969, the Returning Officer rejected 9 numberination papers, including the numberination papers of Shri Shiv Kirpal Singh, petitioner in Election Petition No. 1, and Shri Phul Singh, petitioner in Election Petition No. 3. He accepted the numberination papers of 15 candidates. No candidate withdrew his numberination by the due date. Counting of votes took place on August 20, 1969, when the result was announced and the respondent, Shri V. V. Giri, was declared elected. The election was sought to be challenged on various grounds in these election petitions. Some of these grounds were companymon. The grounds may be broadly formulated as follows That the numberination papers of Shri Shiv Kirpal Singh, Shri Charan Lal Sahu and Shri Yogi Raj were wrongly accepted by the Returning Officer That the numberination papers of Shri V. V. Giri. the respondent, were wrongly accepted by the Returning Officer That the numberination papers of Shri Rajbhoj Pandurang Nathuji, Shri Santosh Singh Kachhwaha, Shri Babu Lal Mag and Shri Ram Dulate Tripathi were wrongly accepted by the Returning Officer That Part III and section 21 of the Act are ultra-vires, the Constitution That Rules 4 and 6 3 a of the Presidential and Vice-Presidential Election Rules, 1952 hereinafter referred to as the Rules , promulgated under section 21 of the Act, are ultra vires the Constitution and the Act That the elected members of the Legislative Assemblies of the Union Territories were entitled to be included in the Electoral companylege for the election of the President and their wrongful number-inclusion had number only materially affected the result of the election but also violated Art. 14 of the Constitution That the petitioners were entitled to dispute the election even on grounds other than those mentioned in s. 18 of the Act That the offence of bribery at the election had been companymitted by the respondent and his supporters with his companynivance and That the result of the election had been materially affected by the companymission of the offence of bribery by persons other than the respondent. In addition to these allegations it was alleged that the offence of undue influence had been companymitted at the election with the companynivance of the respondent. In any event the result of the election had been materially affected by the companymission of this offence. We will elaborate the pleadings on this point when we companye to deal with the issues arising out of that allegation. We have read the judgment prepared by Bhargava, J. He has dealt fully with the issues arising out of the allegations other than the allegation of undue influence and, as we agree with him, it is number necessary to add anything to his reasoning. We may, however, reproduce the issues and the companyclusions thereon. Issue No. 5 of Election Petitions Nos. 1, 4 and 5/1969 P. No. 1 Whether section 21 of the Act is ultra-vires the Constitution of India P. Nos Whether Part III and section 21 of the Act are ultra vires the Constitution of India ? We hold that Part III and section 21 of the Act are number ultra vires the Constitution of India. Issue No. 6 of Election Petitions Nos. 1, 4 and 5/69 P. Nos. 1, 4 5 whether Rules 4 and 6 3 e of the Rules are ultra vires the Constitution and the rule-making power of the Central Government ? We hold that r. 4 3 of the Rules was validly made by the Government in exercise of its rule-making power under S. 21 of the Act. That rule being valid, rule 6 3 e of the Rules, which is companysequential, must also be held to be valid. Issue No. 1 in Election Petitions Nos. 1, 4 5/1969 P. No. 1 Whether the numberination papers of the petitioner, Charan Lal Sahu and Yogi Raj were wrongly rejected as alleged in paragraphs 5 a and b , 6 and 7 of the petition ? P. No. 4 Whether the numberination papers of Shiv Kirpal Singh, Charan Lal Sahu and Yogi Raj were wrongly rejected, as alleged in paragraphs 8 a , and 9 a , b and c of the petition ? P. No. 5 Whether the numberination papers of Shiv Kirpal Singh, Charan Lal Sahu and Yogi Raj were wrongly rejected as alleged in paragraphs 8 a and 9 of the petition ? We hold that the numberination paper of Shri Shiv Kirpal Singh was rightly rejected on the ground that it was number accompanied by a certified companyy of the entry relating to him in the electoral roll of the Parliamentary companystituency in which he was registered as a voter. We further hold that the numberination paper of Shri Charan Lal Sahu was rightly rejected on the ground that he was number 35 years of age on the date of numberination. We also hold that the numberination paper of Shri Yogi Raj was rightly rejected on the ground that he had been proposed and seconded by the same electors who had proposed and seconded another candidate, Shri Rajbhoj Pandurang Nathuji, the numberination paper of the latter having been received earlier by the Returning Officer. Issue No. 2 in Election Petition Nos. 1 and 5 and Issue No. 3 in Election Petition No. 4 of 1969 P. No. 1 Whether the numberination paper of the respondent were wrongly accepted as alleged in paragraphs 5 c and8 of the petition ? P. No. 4 Whether the numberination papers of the respondent were wrongly accepted as alleged in paragraphs 8 c and 11 of the petition ? P. No. 5 Whether the numberination papers of the respondent were wrongly accepted as alleged in paragraphs 8 b and10 of the petition ? We hold that the numberination papers of the respondent were validly accepted. The certified companyies of the electoral roll filed with the numberination papers were issued by the appropriate authority. Issue No. 3 in E.Ps. Nos. 1 5 and issue No. 2 in E.P. No. 4/1969 P. No. 1 Whether the numberination papers of Rajbhoj Pandurang Nathuji and Babu Lal Mag were wrongly accepted as alleged in paras 5 d and 9 of the petition ? P. No. 4 Whether the numberination papers of Rajbhoj Pandurang Nathuji, Babu Lal Mag and Ram Dulare Tripathi were wrongly accepted as alleged in paragraphs 8 b and 10 a , b and c of the petition ? P. No. 5 Whether the numberination papers of Rajbhoj Pandurang Nathuji, Santosh Singh Kachhwaha, Babu Lal Mag and Ram Dulare Tripathi were wrongly accepted as alleged in paragraphs 8 c and 1 1 of the petition ? We hold that the numberination paper of Shri Rajbhoj Pandurang Nathuji was validly accepted, the certified companyy of the electoral roll filed by him was a valid and a good companyy. We further hold that the numberination paper of Shri Santosh Singh Kachhwaha was number invalid even though he signed his numberination paper before his seconder had signed it. His numberination paper, therefore, was rightly accepted. We further hold that the numberination paper of Shri Babu Lal Mag was number invalid even though he had signed his numberination paper before it was signed by the proposer and the seconder. His numberination paper was, therefore, rightly accepted. We further hold that the numberination paper of Shri Ram Dulare Tripathi was number invalid. The disputed signatures have number been shown to be number genuine. Issue No. 4 in E.P. No. 1 and issue No. 7 in P. Nos. 4 and 5 of 1969 Whether the elected members of the Legislative Assemblies of the Union Territories were entitled to be included in the electoral companylege for the election of the President ? If so, whether the number-inclusion of the members of the Legislative Assemblies of the Union Territories in the electoral companylege amounts to number-compliance with the provisions of the Constitution ? If so, whether the result of the election has been materially affected by such number-compliance. Whether the alleged number-compliance with the provisions of the Constitution has violated Article 14 of the Constitution? we hold that members of Legislatures created for Union Territories under Art. 239A cannot be held to be members of Legislative Assemblies of States. They were, therefore, rightly excluded from the electoral companylege. Issue No. 4 a in Election Petition No. 1 and Issues Nos. 7 a in Election Petitions Nos. 4 and 5 are accordingly decided against the petitioners. In view of this companyclusion Issue No. 4 b and Issue No. 4 c of Election Petition No. 1 and Issues Nos. 7 b and c of Election Petitions Nos. 4 and 5 do number arise. Issues Nos. 1 and 2 in Election Petition No. 3 of 1969 Whether the numberination paper of Phul Singh, the petitioner, was wrongly rejected ? What relief, if any, is the petitioner entitled to ? We hold that the numberination paper of Shri Phul Singh was rightly rejected on the ground that his numberination paper was number signed either by a proposer or a seconder. Election Petition No. 3 of 1969 accordingly fails and is liable to be dismissed. Issue No. 8 in Election Petitions Nos. 4 and 5/1969 P. No. 4 a Whether the petitioners are entitled to dispute the election of the respondent on grounds other than those mentioned in section 18 of the Act? If issue No. 8 a is decided in favour of the petitioners, whether the respondent or any person with his companynivance printed, published and distributed the pamphlet, at Annexure A-3, to the petition ? Whether the pamphlet, at Annexure A-3, companytained any false statement of facts relating to the personal character and companyduct of N. Sanjiva Reddy, a candidate, at the election and other persons named in the pamphlet ? Whether the persons found responsible for publishing the pamphlet believed the statements made therein as true or had reason to believe them to be true ? Whether the pamphlet was published with the object of prejudicing the prospects of the election of Sanjiva Reddy and furthering the prospects of the election of the respondent Whether the election of the respondent is liable to be declared void on this ground ? P. No. 5 Issue No. 8 in Election Petition No. 5 is substantially the same except that the annexure in Petition No. 5 is Annexure A- 38 and number Annexure A-3. On the first part of Issue No. 8 we hold that the petitioners are number entitled to dispute the election of the respondent on grounds other than those mentioned in s. 8 of the Act. The other part of the issues, as a companysequence, do number arise at all. Issues Nos. 9, 9A and 10 in E.P. No. 5/1969 Whether the respondent or any other person with his companynivance companymitted the offence of bribery as alleged in paragraph 15 of the petition ? 9A. Whether the allegations in para 15 companystitute bribery within the meaning of the Act ? Whether the offence of bribery was companymitted at the election by any other person without the companynivance of the respondent as alleged in paragraph 15 of the petition, and if so, whether it materially affected the result of the election ? We hold that numberoffence of bribery was companymitted in the matter of grant of licence for the Polyester Factory to Swadeshi Cotton Mills. This leaves Issues Nos. 4 in Election Petition No. 4 and Election Petition No. 5. These read as follows P. No. 4 Whether all or any of the allegations made in paragraphs 8 e and 13 a to m of the petition companystitute in law an offence of undue influence under section 1 8 1 a of the Act ? Whether the said allegations made in paragraphs 8 e and 13 a to m are true and proved ? In the event of these allegations being proved and companystituting undue influence, whether the returned candidate has companymitted the offence of undue influence ? whether the offence of undue influence was companymitted by his workers, and if so, with his companynivance ? whether the offence of undue influence was companymitted by others without his companynivance, and if so, whether that has material affected the result of the election ? P. No. 5 Whether all or any of the allegations made in paragraphs 8 e and 13 of the petition companystitute in law an offence of undue influence under section 18 1 a of the Act Whether the said allegations in paragraphs 8 e and 13 are true and proved ? In the event of these allegations being proved and companystituting undue influencewhether the returned candidate has companymitted the offence of undue influence ? whether the offence of undue influence was companymitted by his workers, and if so, with his companynivance ? whether the offence of undue influence was companymitted by others without his companynivance, and if so, whether that has materially affected, the result of the election ? We may number refer to the pleadings relevant to Issue No. 5 in Election Petition No. 5. In para 8 e of the petition it is stated that the offences of undue influence at the election have been companymitted by the returned candidate and by his supporters with the companynivance of the returned candidate. It is further stated that the material facts, in support of this ground are in para 13 of the petition. In para 13 a are set out the facts which according to the petitioners led to the sharp cleavage between the electors of the Congress Party and all electors in general. In brief, the history of the dispute between the two sections of the party, which we will refer to as Congress R led by Shri Jagjivan Ram and Congress 0 led by Shri Nijalingappa, was set out. We need number extract the pleadings on this part of the case in detail because we will briefly refer to the background of the dispute and the facts as proved before us. But we may mention that this Court is number companycerned with the merits of the dispute between the two sections of the Congress Party and we will companysider this matter only insofar as it throws any light on the question of the offence of undue influence. In paragraph 13 b ii it was alleged that Shri Nijalingappa, Shri S. K. Patil, Shri K. Kamaraj, Shri Morarji Desai and Shri Y. B. Chavan, electors at the election, were threatened by Smt. Indira Gandhi on July 12, 1969, at Bangalore with serious companysequences with the object of unduly influencing these people or changing their decision to numberinate. Shri N. Sanjiva Reddy as their candidate. The threat given was repeated subsequently between 12th and 16th July, 1969 a number of times. By order dated January 23, 1970, we directed that the petitioners were number entitled to lead evidence on this. subpara because we were of the opinion that these allegations, even it accepted, did number companystitute any interference with the electoral right as defined in s . 171-A of the Indian Penal Code, i.e. the right to vote or refrain from voting at an election. As far as Shri Sanjiva Reddy was companycerned there is numberallegation that the Prime Minister had interfered or attempted to interfere with his right to stand as a candidate. In para 13 b iii it was alleged that a number of supporters of the returned candidate, and in particular Shri Jagjivan Ram, Shri Yunus Saleem, Shri Shashi Bhushan, Shri Krishan Kant and Shri Chandra Shekhar, Shri Jagat Narain, Shri Mohan Dharia and Shri S. M. Banerji, with the companysent or the companynivance of the returned candidate, published by free distribution a pamphlet, Annexure A-38, in Hindi and English, in cyclostyled form as well, as in printed form, in which very serious allegations were made which amounted. to undue influence within the meaning of s. 17.1C of the Indian Penal Code. In para 13 b iv it was alleged that this pamphlet was distributed from 9th to 16th August, 1969, among all the electors of the electoral companylege for the Presidential election. During these days it was also-distributed in the Central Hall of the Parliament by the persons mentioned above. A large number of electors were asked to read the companytents of this pamphlet and they were asked Will you vote for such a debauch and companyrupt man ? The minds of the voters were so unduly influenced and an impression was purposely sought to be created that if Mr. Reddy was elected to the office of the President of India, the Rashtrapati Bhavan will become a centre of vice and immorality and that Shri Reddy will assume dictatorial powers and will bring an end to democracy in India. This scare was created in the minds of the electors with the direct object of interfering with their free exercise of their electoral right to vote for the candidate of their choice. As a single instance Shri Yunus Saleem approached Shri Abdul Ghani Dar, Member of Parliament, one of the petitioners herein, and talked to him in this behalf as stated earlier. This was said in the presence of a number of Members of Parliament. In sub-para 13 b v it was alleged that the petitioner, Shri Abdul Ghani Dar, wrote a letter to Shri V. V. Giri, companyy of which was endorsed to the Prime Minister and Shri Humayun Kabir. In this letter the petitioner requested Shri V. Giri, to companydemn those who had published this pamphlet and make a public statement dissociating himself from and denouncing the publishers of the pamphlet but Shri V. Giri failed to do SO. In sub-para 12 b vi it was alleged that this low level pamphlet had evoked great public and press criticism and it came out openly in the press that such low level pamphlets were being distributed in the election campaign. It was, further alleged that even news items regarding this pamphlet appeared in almost all leading newspapers of the companyntry. In spite of this, the returned candidate, who was repeatedly harping upon and asking for votes in the name of character, integrity, etc., failed to dissociate himself from the pamphlet or even to companydemn the same. It was alleged in sub-para viii that the language of the pamphlet and the laudatory references to Smt. Indira Gandhi and her followers themselves point to the origin of the pamphlet. In sub-para ix of para 13 b reference was made to a letter issued by Shri Madhu Limaye, M.P., which he wrote to the Election Commission of India, protesting against the alleged pamphlet and requesting him to take appropriate action. In sub-para x reference is made to the reply of the Chief Election Commissioner. It was alleged in sub-para that a similar letter was written by Shri Kanwar Lal Gupta, M.P., to the Election Commission, and in sub-para reference was made to the reply of the Chief Election Commissioner dated August 14, 1969. In sub-para xiii it was alleged that the returned candidate, Shri V. V. Giri, made various statements at various places companydemning the decision of the Congress Parliamentary Board in selecting Shri Reddy as its candidate and described it as immature. It is further alleged that Shri V. V. Giri, repeatedly stated that a man of character and integrity should have been selected. The returned candidate in well guarded language was stating that Mr. Reddy was number a man of character. He also exhorted Congressmen to demand a right of vote and made capital of the Congress Presidents appeal to Jan Sangh and Swatantara Party. In sub-para c 1 of para 13 it was alleged that the supporters of the returned candidate, Smt. Indira Gandhi, Shri Jagjivan Ram, Shri Fakhruddin Ali Ahmed, Shri Yunus Saleem, Dr. Karan Singh, Shri Dinesh Singh, Shri Swaran Singh, Shri I. K. Gujral, Shri Satya Narain Sinha, Shri K. Shah and Shri Triguna Sen were all occupying high ministerial, positions in the Central Government and they misused these Positions for furthering the Prospects of the returned candidate by telephoning a large number of electors from their ministerial telephones of the Government, openly telling them that it was a matter of prestige and existence for them and that if the electors did number vote according to their wishes for Shri V. V. Giri, they would lose all their patronage and that if the electors voted as desired by them, they would receive governmental patronage at every step. So many electors were called by the above named Ministers at their official residences and, offices in Delhi and undue influence was brought upon them by ordering them to vote for the returned candidate. It was further stated that the returned candidate, Shri V. V. Giri, sounded one of the Ministers mentioned above to influence the particular electors, who were number found amenable to his own influence or persuasion. In para 13 c ii reference was made to Shri Yunus Saleem, Deputy Law Minister, obtaining signatures of the members of Rajya Sabha on some paper which in effect amounted to pledging their support for Shri V. V. Giri, the returned candidate, and what happened in he Rajya Sabha in companynection with that incident. In sub-para 13 c iii it is alleged that Shri Fakhruddin Ali Ahmed and Shri Yunus Saleem threatened the Muslim voters that Shri Sanjiva Reddy was in fact a candidate of the Jan Sangh party and if he was elected the fate of the Muslim companymunity in India will be in anger and in companystant threat of extinction. An instance was given when Shri Yunus Saleem met Shri Abdul Ghani Dar, petitioner, and talked to him in the same terms. Further, reference was made to a letter issued by Shri Abdul Ghani Dar to all Muslim electors describing such a threat as baseless and mischievous. In sub-para iv reference was made to a letter written by Shri Abdul Ghani Dar to the press in this companynection. In paras 13 c v and vi reference was made to a threat issued to the members of the Legislative Assembly of Bengal that if Shri Sanjiva Reddy was elected he would enforce Presidents rule in Bengal, thus wiping off the United Front Government and the Legislative Assembly. Reference was made to a news item appearing in the papers on August 12, 1969, in this companynection. We need number say anything more about this allegation because we refused to allow evidence to be led on this issue, as the allegations do number, even if accepted, amount to undue influence. In sub-para vii it was alleged that a threat was issued to the Members of the Legislative Assembly of Andhra Pradesh that the Assembly would be dissolved if Shri Reddy was elected. By order dated January 23, 1970, we refused to allow evidence to be taken on this point as the allegations do number, even if accepted, amount to undue influence,. Some other allegations of undue influence were made in the subsequent paras but we did number allow the petitioners to lead evidence on those paras and they need number be mentioned. The respondent, Shri V. V. Giri, in his reply first stated that I propose to traverse the allegations directly made against me and also the insinuations or innuendoes that anything was done at any instance or with my knowledge and companysent or companynivance. I submit that I cannot traverse the allegations made against the Prime Minister or any other person, as I do number have personal knowledge thereof. The respondent did number, however, admit any of the allegations or insinuations against such persons and it was submitted that the petitioners, were put to strict proof of every one of them. The respondent denied the allegation in sub-para i of para 13 b of the petition and said that I was always a appealing to the voters to exercise their vote according to their companyscience and free will. I was, in fact, companyducting my campaign single-handed. In reply to sub-para iii the respondent characterised the allegations as most reckless, wild and false and emphatically denied them. He stated that numberhere or at numbertime was it ever alleged within my knowledge that I or my supporters had anything to do with the publication or circulation of the alleged pamphlets. In reply to sub-para iv of para 13 b the respondent stated that he had numberknowledge and did number admit any of the allegations made in that para and the petitioners were put to strict proof. He also did number admit that Shri Yunus Saleem approached Shri Abdul Ghani Dar, as alleged. In reply to sub-paras v and vi of para 13 b the respondent denied that he had received any letter from Shri Abdul Ghani Dar. He stated that the only letter he received from Shri Abdul Ghani Dar was a letter dated July 24, 1969, in reply to respondents circular letter to the electors seeking their support. He further denied that he ever received a companyy of the alleged pamphlet. He further stated I say that in fact I saw the letter of August 11, 1969 of Shri Dar and the pamphlet attached as annexure to the Petition only after I received the companyy of the Election Petition and the annexures. I entirely repudiate that I had anything to do with the pamphlet before its publication or after its, publication. I also deny that any of my workers or supporters had anything to de with it, with my knowledge or companynivance. In reply to sub-para Viii of para 13 b the respondent denied that persons alleged to be his workers and supporters were distributing the pamphlet and were telling voters number to vote for Shri Reddy, as alleged. He characterised both these allegations as baseless and false. In reply to subpara ix he said that he was number aware of the letter, Annexure A-39. In reply to sub-para x he said that this matter Was number relevant. In reply to sub-para xi it was asserted that Shri Guptas allegations were wild and baseless and the matter was irrelevant. In reply to subpara xii he had numbersubmission to make except that the matter was irrelevant. With reference to sub-para xiii of para 13 b the respondent denied that during his tour of various places mentioned in the said paragraph he stated in any wellguarded language or otherwise that Shri Reddy was number a man of character. He stated that throughout his statements he adhered to the stand he had taken in his first statement of July 13, 1969, announcing his decision to stand as a candidate for the office of the President. He also annexed companyy of a Press Statement issued on August 10, 1969, in which he reiterated the aforesaid stand. With reference to sub-para i of para 13 c the respondent characterised the allegations as reckless, and irresponsible. The petitioner also denied that. he sounded any Minister as alleged in the sub-para. With references to sub-paras ii , iii , iv and v of para 13 c the respondent said that he had numberpersonal knowledge but put the petitioners to strict proof. The respondent further replied to other paragraphs but numberhing much turns on them. We may mention that at various places the respondent alleged. that the paras were vague and numberparticulars had been given. The respondent asked for particulars on various points and this Court directed particulars to be, supplied. Particulars were supplied regarding para 13 b xiii and para 13 c i . We will refer to-the particulars whenever it is deemed necessary while appreciating the evidence of the petitioners. We need number refer in detail to the allegations in Election Petition No. 4 which are substantially similar to those in Petition No. 5. The Advocate-on-Record for Election Petition No. 4 and Election Petition No. 5 was the same and companymon evidence Was led in both the petitions and companymon arguments were addressed thereon. From the pleadings and the evidence led the main points which arise for our determination are What is the true interpretation of s. 18 of the Act Was the pamphlet distributed by post to the electors ? Was the pamphlet distributed in the Central Hall of Parliament ? Does the distribution of the pamphlet by post and or in the Central Hall companystitute undue influence under s. 18 of the Act ? Was this pamphlet distributed with the companynivance of the returned candidate ? Whether the offence of undue influence was companymitted by others without his companynivance, and if so, whether it had material effect on the result of the election? Let us first address ourselves to the question of interpretation of s. 18. We have read the views expressed by Bhargava, J., and Mitter J., but with respect we differ from them. Bhargava, J., has held that the distribution of the pamphlet amounted to an offence under s. 171G, I.P.C., and number under s. 171C, I.P.C. According to Mitter, J distribution of the pamphlet by post and in the Central Hall does number by itself fall within S. 18 of the Presidential and Vice-Presidential Election Act, 1952. According to him, before any publication of a defamatory matter relating to a candidate can be treated as companymission of the offence of undue influence there must be some overt act in addition to the mere publication-some attempt or persuasion of a voter to restrain the free choice of a candidate before the law of undue influence is attracted. In our opinion, if distribution of the pamphlet by post to electors or in the Central Hall is proved it would companystitute undue influence within s. 18 and it is number necessary for the petitioners to go further and prove that statements companytained in the pamphlet were made the subject of a verbal appeal or persuasion by one member of the electoral companylege to another and particularly to those in the Congress fold. The Presidential and Vice-Presidential Elections Act, 1952, was passed to regulate certain matters relating to or companynected with elections to the office, inter alia, of the President of India. Part III of the Act deals with disputes regarding elections and S. 18 therein companytained lays down the grounds for declaring the election of a returned candidate to be void. The relevant part of the section provides If the Supreme Court is of opinion a that the offence of bribery or undue influence at the election has been companymitted by the returned candidate or by any person with the companynivance of the returned candidate or b that the result of the election has been materially affected i by reason that the offence of bribery or undue influence at the election has been companymitted by any person who is neither the returned candidate number a person acting with his companynivance the Supreme Court shall declare the election of the returned candidate to be void. Under s. 18, therefore, the election has to be declared to be void if, amongst other things, undue influence has been companymitted i by the returned candidate himself, ii by a person with his companynivance or iii by any person who is neither the returned candidate number one having acted with his companynivance, if the result of the election has been materially affected. Section 18 2 declares that for the purposes of this section the offences of bribery and undue influence at an election have the same meaning as in Chapter IX-A of the Indian Penal Code. We may here companypare the provisions of s. 18 1 a and s. 18 1 b i read with s. 18 2 with s. 123 of the Representation of the People Act, 1951. This section lays down companyrupt practices for the purposes of that Act which include undue influence upon proof of which an election has to be set aside. Though undue influence for purposes of that Act has the same meaning as in the present Act, that section does number go as far as s. 18 of the present Act so as to provide that even if it is companymitted by a third party, that is to say, number an election agent number a person with the companysent of the returned candidate, the election would still be declared to be void provided of companyrse that it has been materially affected by such undue influence,. From the fact that both these Acts were enacted by the same Legislature and Act 31 of 1952 was passed after the Representation of the People Act was passed, it is clear that Parliament deliberately made s. 18 stricter than the Representation of the People Act, firstly, by using the words companynivance of the returned candidate instead of the words his companysent, and secondly, by including undue influence companymitted even by a stranger, having numberhing to do with the returned candidate, as a ground for declaring the election to be void, the only companydition in respect of such an act being that it should have materially affected the election. The object of doing so is obvious, namely, that Parliament wanted to ensure that in respect of an election for the highest office in the realm the election should be companypletely free from any improper influence emanating even from a third party with whom the returned candidate had numberconnection and without any companynivance on his-part. The only limitation, as aforesaid, placed in s. 18 is that in such a case it has to be established that the election was materially affected. The questions, therefore, which would arise under s. 18 would be 1 Has the offence of undue influence been companymitted ? 2 If so, was it companymitted by the returned candidate or by a person with his companynivance ? and 3 even if the offence companymitted was by a stranger and without the companynivance of the returned candidate, has the companymittal of that offence by such any person materially affected the election ? Chapter IXA of the Penal Code which deals with offences relating to elections was introduced in the Code by the Indian Election Offences and Inquiries Act XXXIX of 1920 . Section 171A defines candidate and electoral right. An electoral right means the right of a person to stand or number to stand as, or to withdraw from being, a candidate or to vote or refrain from voting at an election. Section 171C, which deals with the offence of undue influence reads asunder Whoever voluntarily interferes or attempts to interfere with the free exercise of any electoral right companymits the offence of undue influence at an election. Without prejudice to the generality of the provisions of sub-section 1 , whoever a threatens any candidate or voter, or any person in whom a candidate or voter is interested, with injury of any kind, or b induces or attempts to induce a candidate or voter to believe that he or any person in whom he is interested will become or will be rendered an object of Divine displeasure or of spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or voter, within the meaning of subsection 1 . Sub-section 3 lays down that A declaration of public policy or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall number be deemed to be interference within the meaning of this section. Section 171F provides for the penalty for the offence of undue influence which is either imprisonment upto one year or with fine or both. Section 171G provides 3-L308 Sup CI/71 Whoever with intent to affect the result of an election makes or publishes any statement purporting to be a statement of fact which is false and which he either, knows or believes to be false or does number believe to be true in relation to the personal character or companyduct of any candidate shall be punished with fine. The electoral right of an elector, as defined in S. 171A b of the Indian Penal Code, means the right of a person to stand, or number to stand as, or to withdraw from being, a candidate or to vote or refrain from voting at an election. It was said that the right to vote envisages two stages the first stage is when the elector goes through the mental process of weighing the merits and demerits of the candidates and then making his choice and the second stage is when having made his choice he goes to cast his vote in favour of the candidate of his choice. The argument was that the language of s. 171C suggests that undue influence companyes in at the second and number at the first stage, and therefore, it can only be by way of some act which impedes or obstructs the elector in his freely casting the vote, and number in any act which precedes the second stage, i.e., during the stage when he is making his choice of the candidate whom he would support. This argument was sought to be buttressed by the fact that canvassing is permissible during the first stage, and therefore, the interference or attempted interference companytemplated by s. 171C can only be that which is companymitted at the stage when the elector exercises his right, i.e., after he has made up his mind to vote for his chosen candidate or to refrain from voting. It was further argued that the words used in s. 171C were the free exercise of vote and number exercise of free vote. The use of those words shows that canvassing or propaganda, however, virulent, for or against a candidate would number amount to undue influence, and that undue influence can only mean some act by way of threat or fear of some adverse companysequence administered at the time of casting the vote. We do number think that the Legislature, while framing Ch. IXA of the Code ever companytemplated such a dichotomy or intended to give such a narrow meaning to the freedom of franchise essential in a representative system of government. in our opinion the argument mentioned above is fallacious. It companypletely disregards the structure and the provisions of s. 171C. Section 171C is enacted in three Darts. The first sub-section companytains the definition of undue influence. This is in wide terms and renders a person voluntarily interfering or attempting to interfere with the free exercise of any electoral right guilty of companymitting undue influence. That this is very wide is indicated by the opening sentence of sub-s. 2 , i.e. without prejudice to the generality of the provisions of sub-section 1 . It is well-settled that when this expression is used anything companytained in the provisions following this expression is number intended to cut down the generality of the meaning of the preceding provision. This was so held by the Privy Council in King-Emperor v. Sibnath Banerji 1 . It follows from this that we have to look at sub-s. 1 as it is without restricting its provisions by what is companytained in sub-s. 2 . Sub-s. 3 throws a great deal of light on this questions It proceeds on the assumption that a declaration of public policy or a promise of public action or the mere exercise of a legal right can interfere with an electoral right, and therefore it provides that if there is numberintention to interfere with the electoral right it shall number be deemed to be interference within the meaning of this section. At what stage would a declaration of public policy or a promise of public action act and tend to interfere ? Surely only at the stage when a voter is trying to make up his mind as to which candidate he would support. If a declaration of public policy or a promise of public action appeals to him, his mind would decide in favour of the candidate who is propounding the public policy or promising a public action. Having made up his mind he would then go and vote and the declaration of public policy having had its effect it would numberlonger have any effect on the physical final act of casting his vote. Sub-section 3 further proceeds on the basis that the expression free exercise of his electoral right does number mean that a voter is number to be influenced. This expression has to be read in the companytext of an election in a democratic society and the candidates and their supporters must naturally be allowed to canvass support by all legal and legitimate means. They may propound their programmes, policies and views on various questions which are exercising the minds of the electors. This exercise of the right by a candidate or his supporters to canvass support does number interfere, or attempt to interfere with the free exercise of the electoral right. What does, however, attempt to interfere with the free exercise of an electoral right is, if we may use the expression, tyranny over the-mind. If the companytention of the respondent is to be accented, it would be quite legitimate on the part of a candidate or his supporter to hypnotize a voter and then send him to vote. At the stage of casting his ballot paper there would be numberpressure cast on him because his mind has already been made up for him by the hypnotiser. It was put like this in a book on Elections The freedom of election is two-fold 1 freedom in the exercise of judgment. Every voter should be free 1 1945 F.C.R. 195. to exercise his own judgment, in selecting the candidate he believes to be best fitted to represent the companystituency 2 Freedom to go and have the means of going to the poll to give his vote without fear or intimidation. 1 2 We are supported in this view by the statement of Objects and Reasons attached to the bill which ultimately resulted in the enactment of Chapter IXA. That statement explains in clear language that undue influence was intended to mean voluntary interference or attempted interference with the right of any person to stand or number to stand as or withdraw from being a candidate or to vote or refrain from voting, and that the definition companyers all threats of injury to person or property and all illegal methods of persuasion, and any interference with the liberty of the candidates or the electors. The legislature has wisely refrained from defining the forms interference may take. The ingenuity of the human mind is unlimited and perforce the nature of interference must also be unlimited., 1 2 . From a reading of s. 171 G it is clear that in pursuit of purity of elections the legislature frowned upon attempts to assail such purity by means of false statements relating to the personal character and companyduct of a candidate and made such acts punishable thereunder. But the fact that making of such a false statement is a distinct offence under s. 171G does number and cannot mean that it cannot take the graver form of undue influence punishable under s. 17F. The false statement may be of such virulent, vulgar or scurrilous character that it would either deter or tend together voters from supporting that candidate whom they would have supported in the free exercise of their electoral right but for their being affected or attempted to be affected by the maker or the publisher of such a statement. Therefore, it is the degree of gravity of the allegation which will be the determining factor in deciding whether it falls under s. 171C or s. 171G. If the allegation, though false and relating to a candidates personal character or companyduct, made with the intent to affect the result of an election. does number amount to interference or attempt at such interference, the offence would be the lesser one. If, on the other hand, it amounts to interference or an attempt to interfere it would be the graver offence under s. 171F read with s. 171C. We are also supported in our view by a number of decisions given on similar statutory provisions. The Government of India Provincial Elections Corrupt Practices and Election Petitions Law and Practice of Elections Election Petitions- Nanak Chand--1937 Ed. p. 362. Law of Elections and Election Petitions-Nanak Chand- 1950 Ed. p. 263. Order, 1936, companytains the following relevant Provisions. The expression electoral right was defined in the same manner as in s. 171A b of the Indian Penal Code. Corrupt practice in relation to an election by the members of a Provincial Legislative Assembly to fill seats in Provincial Legislative Council, means one of the practices specified in. Parts I and II of the First Schedule to this Order. Undue influence was defined in clause 2 of the First Schedule to mean any direct or indirect interference or attempt to interfere on the part of a candidate or his agent, or of any other person with the companynivance of the candidate or his agent, or of with the-free exercise any electoral right, provided that- a without prejudice to the generality of the provisions of this paragraph, any such person as is referred to therein who threatens any candidate or elector, or any person in whom a candidate or elector is interested, with any injury of any kind or induces or attempts to induce a candidate or elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of that candidate or elector within the meaning of this paragraph b a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall number be deemed to be interference within the meaning of this paragraph. Paragraph 5 of the First Schedule is similar to s. 171G and reads as follows The publication by a candidate or his agent, or by any other person with the companynivance of the candidate or his agent, of any statement of fact which is false, and which he either believes to be false or does number believe to be true, in relation to the personal character or companyduct of any candidate, or in relation to the candidature or withdrawal of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidates election. These provisions were the subject-matter of decision by the Election Tribunal in Amritsar City Mohammedan Constituency Case No. 2 1 . It was observed as follows it is true that the definition of undue influence is widely worded and companyers all kinds of fraudulent acts or omissions which in any way, directly or indirectly, interfere with the free exercise of any electoral right, and it is also true that the definition extends number only to actual interference but even to an attempt to interference. But on the facts the Tribunal observed There is numberproper evidence of actual interference before us, and as regards the attempt, we have to see if there was the deliberate intent to mislead voters and thus make them exercise their electoral right under the wrong impression that the respondent had been set up as a candidate by the Muslim League. It was argued before the Commission that threat or element of companypulsion was an essential ingredient of the companyrupt practice of undue influence. The Commission observed We cannot, however. find any basis in the definition of undue influence for the proposition that unless M. Zaffar Ali Khan threatened, or companypelled the voters to vote in a particular manner, the offence of under influence was number companyplete. The definition of undue influence is very wide in its terms and includes four different forms of interference viz., direct interference, indirect interference, direct attempt to interfere and indirect attempt to interfere, and it is numberhere laid down that such interference or attempt to interfere should be by the method of companypulsion although we are prepared to companycede that the inducement must be of such a powerful type as would leave numberfree will to the voter in the exercise of his choice. There would, of companyrse, be in such a case mental companypulsion in a sense but it is number necessary that there should be physical companypulsion or that a threat must be actually held out by the person who interferes or attempts to interfere. p. 160 In Jujhar Singh v. Bhairon Lall 1 the petitioner was a Ram Rajiya Parishad candidate, and the respondent, Bhairon Lall, fought on the Congress ticket. It was alleged that a poster was The Indian Election Cases 1935-1950 - Doabia-Vol. II, 150-157. 2 7 E.L.R. 457, 461. published against the Ram Rajiya Parishad and Jagirdars and this companystituted undue influence within s. 123 2 of the Representation of People Act, 1951. It was held that the publication of the poster companystituted undue influence. The Commission observed-. It may be observed that an attempt to interfere by the method of companypulsion is number necessary and that even the method of inducement may be sufficient, provided it be of such a powerful type as would leave numberfree will to the voter in the exercise of his choice. In other words, actual physical companypulsion is number necessary, but, positive mental companypulsion may be enough to give rise to an undue influence. For the reasons which we shall presently give, we read this sort of mental companypulsion in the poster, and, therefore, hold that it falls within the purview of undue influence. The slogan of the poster was described thus Vote for Congress in order to put an end to the atrocities of the Jagirdars. On the lefthand side, a person-apparently a tenant-is shown tied up to a tree with a rope. On the right, there is a well dressed Jagirdar asking his man, who is seen waving a whip, to flog the tenant. Evidently, the tenants wife, who has apparently attempted to intervene, has been thrown down prostrate on the ground. To the right hand side of the picture, there is symbol of two bullocks with yoke on, and near about the slit there are the hands of so many voters, male and female, attempting to cast their votes in the ballot box. In Radhakanta Mishra v. Nityananda Mahapatra 1 there was a difference of opinion whether the respondent and his agent had companymitted companyrupt practice of undue influence by publishing a booklet entitled why should you vote for me where the picture of a dead body with the objectionable caption appeared, and it was stated that the individual had died of police firing and that the Congress had killed him. Barman, J., held that it companystituted undue influence while Rao, J., held that it did number. There being difference of opinion, the case went to Das, J., who held that it did number amount to undue influence. Das, J., observed regarding s. 123 2 of the Representation of People Act that there may be some element of mental companypulsion, but number necessarily a physical one or a threat actually held out by the person who interferes or attempts to interfere. We are number companycerned with the question whether the booklet in that case companystituted undue influence or number but only with the interpretation of the section. Barman, J., 1 19 E.L.R. 203. observed A voter must be able to freely exercise his electoral right. He must be a free agent. All influences are number necessarily undue or unlawful. Legitimate exercise of influence by a political party or association or even an individual should number be companyfused with undue influence. Persuasion may be quite legitimate and may be fairly pressed on the voters. On the other hand, pressure of whatever character, whether acting on the fears, threat, etc., if so exercised as to overpower the volition without companyvincing the judgment is a species of restraint which interferes with the free exercise of electoral right. It is number necessary to establish that actual violence had been used or even threatened. Methods of inducement which are so powerful as to leave numberfree will to the voter in the exercise of his choice may amount to undue influence. Imaginary terror may have been created sufficient to deprive him of free agency. The scope of s. 171C, I.P.C., was companysidered in a recent decision of this Court in Baburao Patel v. Dr. Zakir Hussain 1 . Wanchoo, C.J., speaking for the Court observed It will be seen from the above definition that the gist of undue influence at an election companysists in voluntary interference or attempt at interference with the free exercise of any electoral right. Any voluntary action which interferes with or attempts to interfere with such free exercise of electoral right-would amount to undue influence. But even though the definition in sub-s. 1 of s. 171C is wide in terms it cannot take in mere canvassing in favour of a candidate at an election. If that were so, it would be impossible to run democratic elections. Further sub-s. 2 of s. 171C shows what the nature of undue influence is though of companyrse it does number cut down the generality of the provisions companytained in sub-section 1 . Where any threat is held out to any candidate or voter or any person in whom a candidate car voter is interested and the threat is of injury of any kind, that would amount to voluntary interference or attempt at interference with the free exercise of electoral right and would be undue influence. Again where a person induces or attempts to induce a candidate, or voter to believe that he or any person in whom he is interested will become or will be rendered an object of Divine displeasure or of spiritual censure, that would also amount to voluntary interference with the free exercise of the electoral right and would be undue influence 1 1968 2 S.C.R. 433, 145. What is companytained in sub-s. 2 of S. 171C is merely illustrative. It is difficult to lay down in general terms where mere canvassing ends and interference or attempt at interference with the free exercise of any electoral right begins. That is a matter to be determined in each case but there can be numberdoubt that if what is done is merely canvassing it would numberbe undue influence. As subsection 3 of s. 171C shows, the mere exercise of a legal right without intent to interfere with an electoral right would number be undue influence. It is number necessary. to companysider the provisions of the Indian Contract Act or the English Law on the subject because we have a special definition given by Parliament. The question that then arises is Whether the publication of this pamphlet can be said to companystitute undue influence ? We have numberdoubt that it does fall within that definition. It is number necessary to reproduce the pamphlet in detail as we shall only be giving further publicity to this most objectionable pamphlet. The pamphlet, after giving various fictitious incidents of sexual immorality, describes Shri N. Sanjiva Reddy a debauch without any sense of shame or morality. Then the pamphlet asks Should the name of the Congress be lowered to such depths that this moral leper, this depraved man should be set up as the Congress candidate for the highest post ? It further adds A senior Congress MP has expressed the fear If Sanjiva Reddy becomes President he will turn Rashtrapati Bhavan into a harem, a centre of vice and immorality. It seems to us that these allegations are companyered under s. 17 1 C, even if they may, be companyered under s. 171G. But we are number companycerned with s. 171G because that section has number been made a ground for setting aside an election. We are only companycerned with s. 171C. Be that as it may, we cannot add another subsection to s. 171C, as follows A false statement of fact in relation to the personal character or companyduct of any candidate even if made with the intention of interfering with the electoral right shall number be deemed to be interference within the meaning of this section. It was said that this pamphlet cannot companye under s. 171C because it was issued anonymously and, therefore, it was number likely to interfere with the choice of the electorate particularly as the electorate companysisted only of members of Parliament and Members of State Legislatures. But, in our opinion, this argument is fallacious. First, this has numberrelevance to the question whether any attempt to interfere with the electoral right has been made or number. Secondly, a series of anonymous attempts in a companyntry like ours would have as much, if number more, effect as one open powerful attempt. It would be dangerous to provide a sanctuary to anonymous attempts. Thirdly, on the facts of this case, can we say that the distribution in the Central Hall is the same thing as anonymous publication ? If a member of Parliament distributes a pamphlet, is he number identifying himself with it unless he expressly disassociates himself from the pamphlet ? It seems to us that the distribution in the Central Hall by members of Parliament has the same effect as if they had endorsed the pamphlet in writing. We are accordingly of the opinion that distribution of the pamphlet by posts also distribution in the Central Hall companystituted an attempt to interfere with the free exercise of the right to vote within s. 18 of the Act. We must first mention that both the parties led extensive evidence to prove the genesis of the dispute between the Congress party led by Shri Jagjivan Ram and the Congress party led by Shri Nijalingappa. We were told about the proceedings of the Faridabad session and the Bangalore Session, and the circumstances attending Shri Morarji Desais resignation. Further the whole of the companyrespondence between the Prime Minister and Shri Nijalingappa, and between Shri Jagjivan Ram and Shri Fakhruddin Ali Ahmed and Shri Nijalingappa between August 9 and August 18 was exhibited in the case. But as it is number necessary for us to determine the exact genesis of the dispute we will only take numbere of the fact that both the companygress parties were opposed to each other at the time of the election and had different views on certain economic issues. and the Presidential election became a vital issue between them. In view of the above we will have to judge the evidence given by the witnesses with care, and wherever possible seek companyroboration of the evidence from circumstances or other independent evidence. We may number deal with the question whether it is possible to find out who printed or published the pamphlet and whether it was distributed by post and or in the Central Hall of Parliament. Regarding the authorship of the pamphlet numberevidence has been led by the petitioners but it was companytended on their behalf that if the Pamphlet is closely scrutinised there are indications in the pamphlet that it is the work of some companygressmen belonging to that party of the Congress which is number led by Shri Jagjivan Ram. Although this argument appears to be attractive, we cannot companye to the companyclusion that it was the work of the members of any particular party. The fact that certain witnesses have admitted that the first part of the pamphlet represents their ideology leads us numberhere because it would number be difficult for other persons to reproduce their ideology in words. Their ideology is wellknown and they are number averse to expounding it in great detail, as was done before us. But as we have already said, we cannot hold that it is the work of members belonging to any particular political party. Regarding the distribution by post there is overwhelming evidence that the pamphlet was widely distributed by post. Part of it will be referred to when dealing with the question of distribution of the pamphlet in the Central Hall. Even the Prime Minister. Smt. Indira Gandhi, received a companyy of it, as is clear from her letter Ext. P. 85-dated August 21, 1969, to Shri Madhu Limaye, M.P., in reply to his letter dated August 13, 1969. In this letter she, inter alia, wrote The leaflet came to me by post and I immediately asked the Home Ministry to institute an inquiry as to the source so that necessary action companyld be companysidered. This was before I received your letter. No evidence was led by either side as to whether such an Inquiry was made, and if so, whether the authorship of the pamphlet was found out. We may mention that Mr. Daphtary, the learned companynsel for the respondent. did number argue the question about the distribution by post and admitted that distribution of the pamphlet by post had taken place. Then we companye to the question of distribution of the pamphlet in the Central Hall. On this point the evidence is extremely companyflicting. Shri Kanwarlal Gupta, M.P., P.W. 11, stated that he saw the pamphlet being distributed in the Central Hall of Parliament by some members one was Shri Yunus Saleem and the other was Shri Shashi Bhushan. He said that he was definite about these two members. He further stated that he did number receive it in Parliament but some other members did and it was being openly distributed. In crossexamination he stated that Shri Yunus Saleem gave it to two or three people he came and gave one pamphlet to each. Shri Gupta produced companyy of a letter dated August 14, 1969, which he had written to the Chief Election Commissioner in this companynection. In this letter Ext. P 37-it is. inter alia, stated Moreover, pamphlets are being distributed in which vulgar charges have been levelled against another candidate for this high office. Character assassination is going on. I am sending a companyy of the pamphlet in which vulgar and filthy attacks have been made against Shri N. Sanjiva Reddy. This amounts to companyrupt practice under the Election Law. These pamphlets are being distributed by the supporters of the Prime Minister. Shri M. Yunus Saleem, a Minister in her Cabinet and some others are very active in it. emphasis supplied The Chief Election Commissioner acknowledged this letter by his d.o. letter-Ext. P 16- dated August 14, 1969. This letter certainly companyroborates Shri Kanwar Lal Guptas statement that Shri Yunus Saleem was distributing this pamphlet but it would be numbered that in the letter to the Election Commissioner there is numbermention of the Central Hall of Parliament. We will discuss this letter in detail a little later. Smt. Jayabehn Shah, M.P., P.W. 25, deposed that she saw this pamphlet being distributed in the Central Hall and she saw Shri Shashi Bhushan, M.P., distributing it, although she did number receive it personally from him. We may mention that she belongs to the Congress Party headed by Shri Nijalingappa. Shri Nanubhai Nichhabhai Patel, M.P., P.W. 26, deposed that he saw the pamphlet in the Central Hall of Parliament about the 12th or 13th of August and Shri Yunus Saleem, Shri Shashi Bhushan and Shri Chandra Shekhar were distributing the pamphlet they came to give him this pamphlet but he told them Yes, I have received it in my flat. In answer to the question what did they tell you he stated They asked me whether I had gone through this pamphlet thoroughly. I said, Yes. Then they told me Be careful and before voting you companysider all these facts. In answer to the question who told you he replied Mr. Saleem. In cross-examination he said that he had number told the petitioners or either of them, Shri Rama Reddy or Shri Abdul Ghani Dar,. that the pamphlet was distributed by Shri Jagat Narain, Shri Mohan Dharia or by Shri Yunus Saleem. This question was put in cross-examination in view of the particulars supplied by Shri Abdul Ghani Dar,, petitioner, that Shri Krishan Kant, Shri Chandra Shekhar, Shri Jagat Narain, Shri Shashi Bhushan and Shri Mohan Dharia had distributed the pamphlet, inter alia, to Shri N. N. Patel, P., Shri Abdul Ghani Dar had verified that this was on the information received from the member of Parliament mentioned as recipient of the pamphlet. The learned companynsel For the respondent, Mr. Daphtary, had at various times asked questions in cross-examination from the petitioners witnesses in order to elicit the information they gave to Shri Abdul Ghani Dar or Shri Sri Rama Reddy with a view to show that the particulars and the evidence in most cases are in companyflict. He says that we should draw an inference against the evidence of these witnesses wherever there is a companyflict between what is stated in the particulars and what is ultimately stated in the evidence. In this particular case it appears that some particulars were given by guess work rather than by ascertaining from the witnesses. We cannot, however, disbelieve witnesses only because the particulars are at variance with their evidence. But we will bear the fact in mind while appreciating their evidence. Shri Mohan Lal Gautam, M.P., P.W. 27, stated that he had received a companyy of this pamphlet in, the Central Hall of Parliament from Shri Shashi Bhushan and he saw it being distributed to other members also. In cross-examination it was put to him that his impression that Shri Shashi Bhushan gave it to him was number companyrect and he replied My recollection is quite companyrect because I came here on the 14th August and I had only one day here-15th was holiday and 16th was polling day, so there cannot be any companyfusion. We may mention that he was elected on the 13 of August, 1969, to the Rajya Sabha and took oath on August 14, 1969. Shri C. D. Pande, M.P., P.W. 29, is one of the petitioners in Election Petition No. 4. He deposed that when he was sitting in the Central Hall he saw the pamphlet being distributed by certain members he companyld recollect two or three and he recollected Shri Shashi Bhushan, Shri Krishna Kant and Shri Yunus Saleem, although they did number give him a companyy of the pamphlet. In cross-examination he stuck to the position and said that they did number give the pamphlet to him because they were giving to such persons who they thought fit, because I was too patent number to accept it. In answer to the suggestion that loyalty was too obvious he said yes.- He was cross-examined in regard to the, particulars and he said that he never told Shri Sri Rama Reddy that the pamphlet was given to him in the Central Hall of Parliament by Shri Jagjivan Ram and II other M.Ps. He also denied that he told Shri Sri Rama Reddy that the pamphlet was given to him on the 11th of August in the Central Hall by Shri Mohan Dharia and Shri Chandra Shekhar.In the particulars supplied by Shri Sri Rama Reddy it is stated that one of the persons who was given the said pamphlet in the Central Hall of Parliament was Shri C. D. Pande. Shri D. N. Deb, M.P., P.W. 30, belonging to the Swatantra Party, deposed that the pamphlet was being distributed in the Central Hall by Shri Shashi Bhushan and some others who were in general called Young Turks, and Shri Shashi. Bhushan gave him a companyy. He said that the pamphlet was distributed openly in the Central Hall. He denied in crossexamination that be told Shri Sri Rama Reddy that Shri Jagjivan Ram and 11 others gave him a companyy of the pamphlet. In the particulars supplied by Shri Abdul Ghani Dar it is stated that he is one of the persons who was given a companyy of the pamphlet in the Central Hall. This is rather strange because he stated in cross-examination that although he met Shri Abdul Ghani Dar, it was number he but Shri Sri Rama Reddy who asked him to give evidence. He does number say that he told Shri Abdul Ghani Dar anything in particular. Shri Hukam Chand Kachwai, M.P., P.W. 32, belonging to the Jan Sangh party, deposed that Shri Shashi Bhushan and Shri Jagjivan Ram gave the pamphlet to him in the Central Hall. He further said that Mr. Shashi Bhushan told me that Mr. Giri was the supporter of the labour and I should support him and the other thing that he told me was that Mr. Sanjiva Reddy was a characterless person and the description of his character is in this pamphlet which I can see. He said that he received this pamphlet in the Central Hall on the 12th of August. In cross-examination he deposed that Shri Shashi Bhushan came alone and gave him the pamphlet and further that Shri Jagjivan Ram had also given him a similar pamphlet but that was on August 13, 1969. He further stated that he went with the pamphlet to his leader, Shri Atal Behari Bajpai, although he did number ask Shri Bajpai whether what was stated in the pamphlet was true. He further said in crossexamination that he did number meet Shri Abdul Ghani Dar or Shri Sri Rama Reddy. Smt. Pushpabehn Mehta, M.P., P.W. 36, stated that some members including Shri Shashi Bhushan, were distributing the pamphlet in the Central Hall of the Parliament and they were discussing. She stated in cross-examination that she did number report to the Security Officer. In crossexamination she stuck to her position that Shri Shashi Bhushan and Shri Krishan Kant were distributing the pamphlet. She. had number talked to Shri Sri Rama Reddy or Shri Abdul Ghani Dar or any other person on their behalf before giving evidence. She stated that there were many persons in the Central Hall and they were sitting in groups and distributing, but she did number mention Shri Jagjivan Rams name in particular. In the particulars supplied by Shri Abdul Ghani Dar it was stated that she received the pamphlet in the Central Hall of Parliament and Shri Krishan Kant, Shri Chandra Shekhar, Shri Jagat Narain, Shri Shashi Bhushan and Shri Mohan Dharia distributed the pamphlet among others to this witness. Shri Patil Puttappa, M.P., P.W. 50, said that Shri Yunus Saleem was distributing the pamphlet among the members in the Central Hall of Parliament and he gave him one companyy. He says that he talked to Shri Saleem and told him that he was number doing the right thing, and Shri Saleem replied It is numbere of your business.,, Later on Shri Puttappa said that he saw Shri Krishan Kant, Shri Chandra Shekhar. Shri Shashi Bhushan and Shri Mohan Dharia also distributing the pamphlet in the Central Hall. He did number companyplain to the Watch and Ward Officer or to the Deputy Speaker, Shri Khadilkar, and the reason he gave was Since I had earlier companye to know that Mr. Kanwarlal Gupta had earlier companyplained to the Election Commissioner and the Deputy Speaker of the House, Lok Sabha. He stuck to his position in cross-examination.He further stated that neither Shri Abdul Ghani Dar number anybody on his behalf asked him to companye and give evidence and that if Shri Dar said on oath that he had given information relating to this, that would be false. He added that till he stepped into the witness box numberody had asked him as to what evidence he was, going to give. In the particulars given by Shri Abdul Ghani Dar the only reference to this witness is in companynection with the alleged distribution of the pamphlet on August 9, 1969, by Shri Shashi Bhushan, and Shri Krishan Kant, to him at 134, North Avenue New Delhi. We may mention that in his evidence he does state that he received one pamphlet by post at his residence but he does number say that Shri Shashi Bhushan and Shri Krishan Kant personally distributed it. Shri Sher Khan, M.P., P.W. 51, stated that he received the pamphlet in the Central Hall and three or four persons, Shri Shashi Bhushan, Shri-Krishan Kant, Shri Jagat Narain and two or three other persons gave the pamphlet to him and they were distributing it openly. In cross-examination he stated that be-fore companying to give evidence in Court he did number have companyversation with Shri Abdul Ghani Dar or anyone about what he was going to depose in the Court. In the particulars it is stated that he received the-pamphlet in the Central Hall of Parliament, and Shri Krishan Kant, Shri Chandra Shekhar, Shri Jagat Narain, Shri Shashi Bhushan and Shri Mohan Dharia had distributed the pamphlet,. among others, to this witness. Shri C. M. Kedaria, M.P., P.W. 53, deposed that Shri Shashi Bhushan gave the pamphlet to him in the Central Hall of Parliament and the Young Turks were distributing the pamphlet. Among the Young, Turks he named Shri Mohan Dharia, Shri Krishan Kant, Shri Arjun Arora, Shri Shashi Bhushan, Shri Chandra Shekhar and others. It was brought out in cross-examination that he was one of the signatories to a letter, appearing in the issue of National Herald dated August 14, 1969-Ext. R-7-written to the Congress President on August 13, 1969, demanding appropriate action against those who did number respect the party mandate in regard to the Presidential election. He stated that there was numberpoint in companyplaining about the distribution of the pamphlet in the Central Hall because responsible persons were distributing it. His name appears in the particulars as one of the persons who had received the pamphlet in the Central Hall of Parliament and that Shri Krishan Kant, Shri Chandra Shekhar, Shri Jagat Narain, Shri Shashi Bhushan and Shri Mohan Dharia distributed the pamphlet to him, among others. Shri N. Sri Rama Reddy, M.P., P.W. 54, one of the petitioners, says that he received the pamphlet both in the Central Hall as well as in his house and this pamphlet was being distributed in the Central Hall from 11th to 15th August. He received it in the Central Hall either on the 12th or on the 15th and received it from Shri Yunus Saleem and Shri Shashi Bhushan who were together. He further stated that from 11th to 15th August he saw Shri Yunus Saleem, Shri Shashi Bhushan, Shri Krishan Kant, Shri S. M. Banerjee, Maulana Ishaq, Shri Chandra Shekhar and Shri Mohan Dharia distributing the pamphlet. He did number companyplain to the Watch and Ward Officers because he companyld never imagine that subordinate men should be my authority to companyplain to. It never struck me once. Then he said that he had companyplained to the Deputy Chairman, who was presiding, that Shri Yunus Saleem was carrying on these nefarious activities in the house, and then Shri Yunus Saleem ran away. It seems to us that he is mistaken that his companyplaint to the Deputy Chairman was about the pamphlet. From the proceedings of the House it appears that his companyplaint was regarding a signature campaign which is alleged to have been carried on by Shri Yunus Saleem. In the cross-examination he said that Shri Chandra Shekhar and Shri Mohan Dharia distributed the pamphlet only on one day, may be on the 14th or 15th August. We have outlined the evidence of 12 members of Parliament above. They all deposed that Shri Shashi Bhushan, among others, either gave them the pamphlet in the Central Hall or they saw him distributing the pamphlet in the Central Hall to others. Shri Shashi Bhushan, M.P., R.W. 38, in his evidence strongly denied the allegations against him however he admitted that lie received the pamphlet at his residence by post. He said that the evidence was totally false and the reason he gave why Shri Kanwar Lal Gupta made the statement was, in brief, that the Jan Sangh party of India was very much angry with the witness. He gave the history of the enmity which we need number set out in detail here. He said that looking to the relationship of the Jan Sangh and the witness, if Shri Gupta said so he was number surprised. He said that there is many times companyflict with him even in the House. Over there several times he levelled personal charge against me. I also spoke against his brother in the House. Regarding Smt. Jayabehn Shahs evidence he said that she deposed wrongly because of political motives. He gave the political reasons in his evidence, one reason being that Smt. Jayabehn was a member of the Birla lobby which was very strong in Parliament and which opposed him strongly in companynection with the hunger strike he undertook at the Birla Bhavan in 1968. Regarding Shri N. N. Patel, Shri Shashi Bhushan said that he did number know him and his evidence was incorrect. He said When I dont know him how can he talk to me. Regarding Shri Mohan Lal Gautam he said that his evidence was wrong and he was a member of the Congress Syndicate and that was the reason why he deposed against the witness. Regarding the evidence of Shri Pande, the reason he gave was that at the time of the hunger strike at Birla House Shri C. D. Pande moved about in the Parliament House Central Hall with a flag on behalf of Birlas whose flag, symbolically speaking, was permitted in the Parliament. He characterised the statement of Shri N. N. Patel about the distribution of the pamphlet as being without any basis and the statement of Shri D. N. Deb as quite wrong. According, to him, Shri D. N. Deb spoke falsely against him because he Shri Deb was a prince Raja and the witness had said several times in Parliament that those who presented the freedom of India on golden dishes to the Britishers had numberright to take the pension as well as engage in politics. The witness further said that Shri Hukam Chand Kachwai had wrongly deposed about the giving of the pamphlet and about the witness talking with him. According to the witness the reason why Shri Kachwai gave this false statement was that he Shri Kachwai belongs to Jan Sangh party. He has companye from R.S.S. The R.S.S. believes in Evil Policy Kootniti . Regarding the evidence of Smt. Pushpabehn Mehta, the witness said that she deposed falsely and the reason he gave was I am sorry that such an old woman can tell a lie. She may number be able to recognize me. One has to do everything in politics. Then the witness added that she belongs to the Syndicate Congress. Regarding Shri Patil Puttappa the witness said that he even did number recognize him and he companyld number give the reason why he gave the evidence falsely against him. He characterised the evidence of both Shri Sher Khan and Shri C. M. Kedaria as false. He attributed Shri Kedarias statement to the fact that Shri Kedaria is one of the principal disciples of Mr. Morarji Desai. Everyone knows the relations Mr. Morarji Desai and I have. It is the effect of it. He is a member of the Syndicate. The witness described his relations with Shri Morarji Desai thus I have always taken Morarji Desai as an opponent of socialism a supporter of the capitalists. The witness further said that the statement of Shri Sri Rama Reddy that he and Shri Yunus Saleem were together at the time and Shri Yunus Saleem gave this pamphlet to Shri Rama Reddy was wrong. He said that Shri Rama Reddy was unhappy with him over the hunger strike at Birla Bhavan. even more than the Birlas. The witness further said that Shri Rama Reddys statement that he was one of the persons distributing the pamphlet in the Central Hall from the 11th to the 15th August we quite wrong. He added He has freedom of speech. What can I do. He characterised the evidence of Shri N. N. Patel about the distribution of the pamphlet as false. He stated in cross-examination that there was numberneed of talking about this pamphlet particularly. Several persons of companyrse talked to me as happens in the lobby. He admitted in cross-examination that he had numberpersonal enmity with Shri Pande, Smt Jayabehn Shah, Shri Sri Rama Reddy, Shri Patil Puttappa, Shri N. N. Patel, Shri D. N. Deb, Shri Mohan Lal Gautam. Shri H. C. Kachwai and Smt. Pushpabehn Mehta, and also numberpersonal enmity with Shri Kanwar Lal Gupta but he had only political enmity. To the question Do you companysider that whoever opposed you politically will try to involve you in this kind of work, i.e., distribution of pamphlet, etc. ? he replied They have involved me. Therefore I think so. The proof is there. In cross-examination he produced a companyy of the Lok Sabha debate, dated December 5, 1967, to show the enmity between him and Shri Kanwar Lal Gupta. There was some discussion about Shri Guptas alleged brother-we say ,alleged because the petitioners companynsel tried to suggest that Shri V. M. Gupta was number Shri K. L. Guptas brother. The witness admitted that he was against Shri Sanjiva Reddys numberination from the very beginning. It was suggested to him that he was responsible for printing and publishing this pamphlet and he replied I would have companymitted suicide if I had brought out this pamphlet. In answer to a Court question is it your evidence that all this discussion about the pamphlet was going on without a pamphlet being there he replied Of companyrse, so many discussions were going on. It will be seen from the evidence of these 12 witnesses that they all deposed to the distribution of the pamphlet by Shri Shashi Bhushan and four of them deposed to the actual receipt of the pamphlet from Shri Shashi Bhushan. Shri Shashi Bhushan has denied the allegations. There is numberdoubt that the evidence is companyflicting, and most of the witnesses are politically interested. It is true, as urged by Mr. Daphtary, that we cannot judge the evidence by mere number of members who deposed to the distribution though we cannot companypletely ignore that fact. We will have to see whether any circumstances which are proved on the record companyroborate one side or the other. 11 witnesses deposed that Shri Yunus Saleem either distributed the pamphlet or gave it to them in the Central Hall of Parliament. We have already referred to the evidence of Shri Kanwar Lal Gupta, P.W. 11, Shri N. N. Patel, P.W. 26, Shri C. D. Pande, P.W. 29, Shri Patil Puttappa P.W. 50 and Shri Sri Rama Reddy P.W. 54. The other six witnesses are Shri N. P. C. Naidu, P.W. 17, Shri Shiv Narain, P.W. 24, Shri Mahadevappa Rampure, P.W. 35, Shri D. Raju, P.W. 49, Shri Abdul Ghani Dar, P.W. 55, and Chaudhary A. Mohd., P.W. 52. Shri N. P. C. Naidu, P.W. 17, deposed that Shri Yunus Saleem gave him one pamphlet in the Central Hall on August 1 1 or He stated that there was a talk between him and Shri Yunus Saleem. He belongs to the Congress Party presided over by Shri Nijalingappa. No cross-examination seems to have been directed on the point of distribution and whether Shri Yunus Saleem distributed the pamphlet. It was urged that it was an oversight. Shri Shiv Narain, M.P., deposed that apart from receiving the pamphlet in his house he saw the pamphlet being distributed in the Central Hall by some gentlemen including Deputy Minister Yunus Saleem, Shri Chandra Shekhar, Shri Mohan Dharia, and Shri Krishan Kant. He admitted that numberpamphlet was given to him by these persons. He stated that he did number tell Shri Abdul Ghani Dar or Shri Sri Rama Reddy the names of the persons he gave in the Court as having distributed the pamphlet. It is remarkable that in the particulars supplied by Shri Abdul Ghani Dar the witness is alleged to have received the pamphlet in the Central Hall of Parliament on August 11, 1969, from Shri Jagjivan Ram. Shri Mahadevappa Rampure, P.W. 35, M.P., deposed that he received the, pamphlet in the Central Hall from Shri Yunus Saleem and saw him distributing it. He further says that Shri Yunus Saleem said You can go through this pamphlet. You will get enough information about the companytesting candidates. I He stated that he received information about the 12th February that he would have to give evidence and before that he did number have any companyversation either with Shri Abdul Ghani Dar or Shri Sri Rama Reddy. He admitted that he did number companyplain to the Security Officer about the distribution. He companyld number say to whom else Shri Yunus Saleem distributed the pamphlet. His name does number figure in the particulars supplied by Shri Abdul Ghani Dar or by Shri Sri Rama Reddy. Shri D. S. Raju, M.P., P.W. 49, stated that he received one companyy of the pamphlet in his house and another companyy in the Central Hall of the Parliament and if he companyld trust his memory, it was Shri Yunus Saleem who passed it on to him. He admitted that when Smt. Gandhi became the Prime Minister she did number companytinue him as one of the Ministers, and that he belonged to the party of which Shri Nijalingappa is the President. He said that it was incorrect that Shri Jagjivan Ram and some others delivered the pamphlet at his residence. His name does number figure in the particulars given by Shri Abdul Ghani Dar except that it is stated that the persons mentioned in paragraph 13 b iii of the Election Petition distributed the said pamphlet by leaving the same at the residence of the witness. Chaudhary A. Mohamed, M.P., P.W. 52, deposed that he met Shri Yunus Saleem in the Central Hall and he talked about the election and Shri Yunus Saleem said that it had been decided number to vote for Shri Sanjiva Reddy. While giving the reasons for this decision Shri Yunus Saleem had said that there was some pamphlet which he had distributed and then gave a companyy to the witness. He stated that he had number told Shri Abdul Ghani Dar that Shri Jagjivan Ram and others had given this pamphlet to him. In answer to the question I put it to you that Shri Yunus Saleem did number give the pamphlet to you or anyone else in your presence ?, he replied You can say so. As the pamphlet was given to me by him, how can I deny it. It is rather extraordinary that in the particulars supplied by Shri Abdul Ghani Dar, Shri Krishan Kant, Shri Chandra Shekhar, Shri Jagat Narain, Shri Shashi Bhushan, and Shri Mohan Dharia are alleged to have given the pamphlet to this witness in the Central Hall of Parliament but number Shri Yunus Saleem. Shri.Abdul Ghani Dar, M.P., P.W. 55, one of the petitioners, deposed that Shri Yunus Saleem gave three pamphlets to him, two in English, one cyclostyled and one printed, and one in Hindi. He further deposed that Shri Yunus Saleem took him aside and on his asking Shri Saleem told him about the companytents of the pamphlet. The witness said that he has one eye and that is also defective, so he companyld number read the pamphlet. In the Election Petition No. 5 it was stated in sub-para 13 b iv that a scare was created in the minds of the electors with the direct object of interfering with the free exercise of their electoral right to vote for the candidate of their choice. It was also stated therein that as a single instance Shri Yunus Saleem approached Shri Abdul Ghani Dar, member of Parliament, one of the petitioners herein, and talked to him in this behalf as stated earlier. This was said in the presence of a number of members of Parliament. Shri Abdul Ghani Dar was companyfronted with this statement and asked about the presence of a number of members of Parliament. He replied I have even number number denied that where I was, taken numberother members were present. In reply to another question he said both his statements, his statement in sub-para 13 b iv and what he stated in Court, were companyrect. But in the particulars it is stated that Shri Yunus Saleem, Shri Shashi Bhushan and Shri Krishan Kant distributed the said pamphlet to the witness. These particulars were given on February 7, 1970, and his evidence was taken on March 5, 1970. If his evidence in Court is true, he clearly Rave false particulars on February 7, 1970. It is further evident that both his statement in sub-para 13 b iv and his statement in Court cannot be true. It seems to us that Shri Abdul Ghani Dar gave the particulars more by guess work than after having ascertained them from the witnesses or persons to whom the witnesses bad spoken. We have numberdoubt that the verification of the affidavit giving the particulars was false in respect. Shri M. Yunus Saleem, M.P., R.W. 51, then Union Deputy Minister of Law, stated that he had number seen anyone distributing the pamphlet in the Central Hall. In reply to the question Did you yourself distribute this pamphlet in the Central Hall or anywhere else as a matter of fact?, he replied No. A person having a little knowledge of law, how can he afford to indulge in such activities of distributing such pamphlets in the Central Hall. The learned companynsel then put the statements of these 1 1 witnesses, which we have extracted above, and he said that they were all baseless and incorrect. He further said that he had number seen this pamphlet before the date of his evidence and so the question of his giving this pamphlet to anyone hardly arose. In companynection with the evidence of Shri Sri Rama Reddy and the incident in the Rajya Sabha he admitted that he was obtaining signatures on a paper demanding freedom of vote in Rajya Sabha before the companymencement of the proceedings in the House and the moment the Deputy Chairman appeared and occupied the seat he also occupied his seat and as he had to go to the other House he left his seat. He further stated that this incident had numberhing to do with the distribution of the pamphlet. Regarding the evidence of Shri Abdul Ghani Dar he said that except that he had a talk with Shri Abdul Ghani Dar about the Presidential election every other part of it was incorrect. He gave his own version of the talk which took place between him and Shri Abdul. Ghani Dar. He further deposed that Shri Kanwar Lal Gupta deposed falsely against him because he belongs to a political organisation which is against the political party to which I belong and, also because in my election I had defeated the Jan Sangh candidate from a companystituency which was overwhelmingly number- Muslim companystituency and where the security of the Jan Sangh candidate was forfeited. As far as Shri Abdul Ghani Dar was companycerned he said that he bad deposed againist him because perhaps be is in the habit of writing false letters and filing false affidavits and attacking persons who do number agree with him in his political ideas. In answer to the question Why Shri Mahadevappa Rampure deposed against you ?, he said Because he is from the Mysore State and is under the influence of Shri Nijalingappa, perhaps in order to please him and gain his favour. The witness also referred to a report circulated by Shri Abdul Ghani Dar after his return from, Hai in which Shri Abdul Ghani Dar had attacked Shri Yunus Saleem. The witness admitted that lie was an active supporter of Shri V. V. Giri. He further stated that Shri Shashi Bhushan was also an active supporter. He further admitted that he was supporting the move for freedom of vote which implied freedom to vote against the official candidate. He further admitted that he was one of those persons who was number very happy from the very beginning at the way the official candidate had been selected by the Parliamentary Board. He also deposed that he never saw Shri Giri during the election period. He characterised as absolutely wrong and incorrect that he was in companystant touch with Shri V. V. Giri. He further deposed that Shri Naidu and Shri Sanjiva Reddy were personal friends and Shri Naidu was canvassing for Shri Sanjiva Reddy in the Central Hall. He denied the suggestion that he was carrying the pamphlets with him. In answer to the question You did number show those papers to Mr. Raj Narain. because you were carrying pamphlets with you and that would have exposed you further ?, he replied It is incorrect and companytrary to the proceedings of the Rajya Sabha. To the question Mr. Kanwar Lal Gupta moved a motion that the debate on the motion be adjourned and he wanted the House to discuss what was happening in the Central Hall about the signature and thereafter reference was made to character assassination. Were you present there ?, he answered No such motion was moved during my presence in the Lok Sabha. He was asked whether he came to know that a point of order had been raised in the Lok Sabha on August 14, 1970, and he replied No body told me about it. We will presently refer to the proceedings in the Lok Sabha. We may mention that he was cross-examined at great length and his cross-examination companyers nearly 55 pages. Various questions were asked about his early career, his political association and views, etc., but we do number find it necessary to mention these because these do number assist us in weighing his evidence. Shri Yunus Saleem has companypletely companytradicted the evidence of the 11 witnesses, all members of Parliament. It is, however, remarkable that in the particulars supplied by Shri Abdul Ghani Dar the only person to whom he is supposed to have distributed the pamphlet is Shri Abdul Ghani Dar himself. From the particulars numberody companyld have imagined that Shri Yunus Saleem played such a prominent part in the distribution of the pamphlet in the Central Hall, as stated by the petitioners witnesses. Seven witnesses deposed to receiving the pamphlet from him. In these circumstances we will have to see whether any circumstances have been proved on record which companyroborate one side or the other. We may next take the batch of witnesses who deposed to Shri Krishan Kant having distributed the pamphlet in the Central Hall These witnesses are Shri K. S. Chavda, P.W. 12, Shri Shiv Narain, P.W. 24, Shri C. D. Pande, P.W. 29, Shri Patil Puttappa, P.W. 50, Shri Sher Khan, P.W. 51, Shri C. M. Kedaria, P.W. 53, and Shri Sri Rama Reddy, P.W. 54. We have already extracted the relevant evidence of six witnesses and the only witness whose evidence we have number companysidered before is Shri K. S. Chavda, P.W. 12. Shri K. S. Chavda, M.P., said that he received the pamphlet in his house and Shri Krishan Kant, member of Rajya Sabha, gave it to him in the Central Hall. He is one or the persons who entirely changed his mind about voting for Shri Sanjiva Reddy after reading the pamphlet. No cross-examination was directed in particular to the question of distribution by Shri Krishan Kant. In the particulars it is stated that Shri Krishan Kant, Shri Chandra Shekhar, Shri Jagat Narain, Shri Shashi Bhushan and Shri Mohan Dharia had distributed the pamphlet to members of Parliament, including this witness. Shri Krishan Kant, M.P., R.W. 3 2, in answer to the question Will you please see this pamphlet ? Have you ever seen this pamphlet before? stated I am seeing it for the first time. In view of this statement, when companyfronted with the evidence of these witnesses he naturally characterised their evidence as atrocious lie, absolutely wrong etc. He, however, admitted that some people had talked to him about the pamphlet and told him that such a pamphlet using some filthy and derogatory language had been written. His immediate reaction then was that some enemy of Shri Giri had done it. He further stated that Shri K. R. Ganesh, M.P., talked to him about the pamphlet though number in detail. This talk must have been either in the lobby or in the Central Hall. He further stated that at the time Shri Ganesh talked to him he was the supporter of Shri Giri, and that he never met Shri V. V. Giri during the whole of the election. He described the suggestion that he alongwith his companyleagues were responsible for the drafting of this pamphlet and getting it published as utterly scandalous. He said that there was numberfoundation in the allegation that he distributed the pamphlet in the Central Hall from the 9th to the 16th August. In re-examination he was asked the reasons why the persons, who had stated that he had distributed the pamphlet to them, had given false evidence. He replied that the only reason possible companyld be political opposition, and by that he meant that they were the supporters of Shri Sanjiva Reddy. Here again there is direct companyflict between the evidence of Shri Krishan Kant, M.P., and of the witnesses whom we have just discussed. Coming to the evidence relating to the distribution by Shri Chandra Shekhar, it companysists of the evidence of six witnesses Shri Shiv Narain, P.W. 24, Shri N. N. Patel, P.W. 26, Shri H. C. Kachwai, P.W. 32, Shri Suraj Bhan, P.W. 33, Shri Patil Puttappa, P.W. 50, and Shri Shri Rama Reddy, P.W. We have already extracted the relevant evidence of the witnesses other than Shri Suraj Bhan, M.P. He stated that he saw the pamphlet being distributed in Parliament House by Shri Amrit Nahata, Shri Chandra Shekhar, Shri Chandrajeet Yadav and so many others. The witness belongs to the Jan Sangh party. He said that he did number mention that Shri Jagjivan Ram and 11 other persons distributed the pamphlet. He further admitted that he did number tell Shri Sri Rama Reddy or Shri Abdul Ghani Dar that the pamphlet was given to him in the Central Hall between the 11th and the 15th of August by Shri Jagjivan Ram and others. In the particulars he is one of the members of Parliament who is supposed to have been given this pamphlet in the Central Hall of Parliament by Shri Jagjivan Ram and 11 others. Shri Chandra Shekhar himself appeared in the witness box as W. 5. He stated that he did number actually see these pamphlets but a portion of the pamphlet in English was read out to him by a friend. He denied having distributed companyies of the pamphlet, either the English version or the Hindi version, to other persons in the Central Hall of Parliament. He described the evidence of Shri Suraj Bhan as mere companycoction and the evidence of Shri Kachwai as totally wrong. It may be mentioned that on the morning of August 9 he went to Calcutta by plane and was in Calcutta on the 9th and 10th August. On the 11th morning he left Calcutta by plane for Patna and he was in Patna on the 11th, and on the 12th morning he was due to leave for Delhi but his plane was delayed and he reached Delhi sometime in the evening of the 12th. So, if he did distribute the pamphlet it must have been only on the 13th and 14th for he says that he did number go to Parliament on the 15th as it was a holiday. In crossexamination he said that he had numberdiscussion about the pamphlet because numberserious person would discuss such a thing. He, only beard whisperings about the pamphlet. But even after companying to know about the whisperings he did number know that the pamphlet was in circulation. He characterised the suggestion that the pamphlet was prepared and published with his knowledge and after companysultations with him as unfounded, incorrect, mischievous and scandalous. He admitted that he had demanded the resignation of the Congress President on August 14, 1969, but said that he demanded it on certain companyditions. The evidence of Shri Chandra Shekhar and of the other six members of Parliament, which we have extracted above, is companyflicting and we will have to look for companyroborating circumstances Five, witnesses deposed to Shri Mohan Dharia, M.P., as having distributed the pamphlet in the Central Hall. We have already extracted the relevant evidence of Shri Shiv Narain, P.W. 24, Shri H. C. Kachwai, P.W-. 32, Shri Patil Puttappa, P.W. 50, Shri Kedaria, P.W. 53, and Shri N. Sri Rama Reddy, P.W. 54. Shri Mohan Dharia, M.P., R.W. 17, admitted that the pamphlet in English came to him by post and that he had glanced through it He characterised it as baseless, filthy and said that as it was number signed by anybody he did number take any serious numberice of it and ignored it. In answer to the question Did you distribute this pamphlet in the Central Hall to anybody on any day?, he said I have never distributed this pamphlet. I have numberrelation with this pamphlet. On the companytrary I would like to tell that I was number supporting Mr. Giri, but I was supporting Mr. Reddy at that time. In this statement he is supported by other witnesses. He said that when he was at Nagpur on August 9, 1969, he participated in as many as eight programmes and there was one Press Conference besides, wherein he had categorically said that Shri Reddy would win in the Presidential election. In an issue of Daily Tarun Bharat dated August 10. 1969, the report of his Press Conference was published, translation of which was marked Ext. R 12A. The report reads The decision of setting up Shri Sanjiva Reddy for the Presidential election has been taken by the Congress Party and it is binding on all from Prime Minister to ordinary Member. Besides, Shri Reddy has created respect in the minds of Members of Parliament because of his impartial regime as Speaker. On this background Shri Mohan Dharia, M.P., leader of Young Turks,, in a Press Conference, companyfidently expressed the certainty of success of Shri Reddy in presidential election. He admitted that his attitude in relation to the Presidential election remained the same till. the 16th August, the day of polling. He was number shaken in his cross-examination. He was asked whether he made any similar statement like th, statement he made on August 9, 1969, and he replied that there was numberoccasion of meeting the press after the 11th. He was companyfronted with a despatch in the Times of India, dated August 12. 1969, from Patna which appeared in the Times of India on August 12, 1969, which reads Three Young Turks today companydemned what they described as a move by the Syndicate in the Congress to forge an alliance with the Swatantra Party and the Jan Sangh. Mr. Chandra Shekhar, Mr. Mohan Dharia and Mr Shanti Kothari, all MPs, expressed companycern at the recent developments in New Delhi and pointed out that the Congress Presidents overtures to Jan Sangh and Swatantra leaders had deeper implications. In a joint statement, they supported the action of Mr. Jagjivan Ram and Mr. Fakhruddin Ali Ahmed, Union Ministers, in seeking clarifications in this regard from Mr. Nijalingappa. He replied that the despatch was companyrect but it was number his statement. He further said that on the 14th August there was a meeting of the MPs from Maharashtra and in that meeting he again had occasion to declare publicly that he stood for Shri Sanjiva Reddy in the Presidential election. He admitted that number only did he sign the requisition for calling the A.I.C.C. meeting for the Delhi Session but he was also one of the campaigners to have that meeting called. He denied seeing anybody discussing the pamphlet because he said that he was hardly there for more than one or two days he was in Nagpur on the 9th, and the 15th. was a holiday. He characterised the suggestion that he and the other socalled Young Turks were responsible for the publication of this pamphlet as absolutely false, frivolous, baseless and so far as he was companycerned it was absolutely defamatory because he had worked for Mr. Reddy and would number issue such statements Besides, in his career he had never done so. He recognised Shri Y. B. Chavan as his leader and he said that Shri Y. V. Chavan supported Shri Sanjiva Reddy. In view of his statement and the statement of other witnesses that he was a supporter of Shri Reddy it would be difficult to hold that he would be a party to distributing the pamphlet,. unless there are some other circumstances which companyroborate the evidence given by the witnesses implicating Shri Mohan Dharia. Two witnesses named Shri Amrit Nahata, M.P., as having distributed the pamphlet Shri Venkatasubbiah, P.W. 13 and Shri Suraj Bhan, P.W. 33. Shri Venkatasubbiah said that he saw it being distributed in the Central Hall by some members of Parliament. To the question Can you name anyone ?, he answered I cannot because so many days have elapsed. I remember to some extent Mr. Amrit Nahata I have seen distributing. He further said that he did number receive it in the Central Hall. We have already referred to the evidence of Shri Suraj Bhan, M.P., P.W. 33. He named Shri Amrit Nahata as one of the distributors. Shri Amrit Nahata, R.W. 3, admitted that he received the pamphlet by post but said that he just threw it away. He further deposed that he did number hear any talk about the pamphlet in the Central Hall. He described Shri Venkatasubbiahs evidence regarding distribution of the pamphlet as a blatant lie. He also characterised Shri Suraj Bhans evidence naming the witness as a distributor of the pamphlet as absolutely incorrect. Here we have two members of Parliament saying that Shri Amrit Nahata was distributing the pamphlet in the Central Hall,while Shri Amrit Nahata has flatly denied the allegation. Further Shri Venkatasubbiah was number very definite, though numberquestions were asked in crossexamination to elicit why he remembered Shri Amrit Nahatas name to some extent. Nor was any question asked to establish any personal or political animosity between Shri Amrit Nahata and the two witnesses. His name does number appear in the particulars given by Shri Abdul Ghani Dar, though his name does appear in the particulars given by Shri Sri Rama Reddy. On this evidence it would be difficult to hold that it has been proved that Shri Amrit Nahata had distributed the pamphlet unless some companyroboration is forthcoming. This leaves us to deal with five other alleged distributors of pamphlets in the Central Hall. They have one thing in companymon. Only one witness in each case saw them distributing the pamphlet. Shri Jagat Narain, M.P., R.W. 25, was seen by Shri Sher Khan, P.W. 51, distributing the pamphlet with Shri Shashi Bhushan,, and Shri Krishan Kant. Shri Jagat Narain deposed that he did number receive any pamphlet and saw it for the first time in Court. He further says that his companyrespondent-the witness has companynection with a newspaper Hind samachar Shri Suri, who represented the paper from Delhi asked him in the first or second weekof August whether he had received the pamphlet or number. He said that the evidence of Shri Sher Khan, M.P., was number true. It is. difficult to believe that he never came across the pamphlet and saw it for the first time in Court. He was a journalist and the query of Shri Suri would at least have set him on the trail. Shri N. Sri Rama Reddy, P.W. 54, said that Shri S. M. Banerjee was one of the persons who was distributing the pamphlet in the Central Hall and he had named him in the petition. Shri S. M. Banerjee, M.P., R.W. 31, who is politically with the Communist Party of India, headed by Shri S. A. Dange, stated that a pamphlet was sent to my address by post and when my wife told me that this pamphlet companytained certain things which according to, her were altogether rubbish and that it was anonymous I asked her to tear it off. He characterised Shri Sri Rama Reddys evidence regarding him as absolutely false and malicious. He admitted that some members of Parliament had talked to him and told him that there was a very nasty pamphlet issued against Shri Sanjiva Reddy but he did number think it necessary to make further enquiries. In answer to the question Who were the persons who talked to you about this pamphlet ?, he replied Many people, it was the talk of the day. The cross-examination further proceeded thus Kindly give some names ? My own group. Members of Parliament and some of them did talk to me about this pamphlet. PC. In the Central Hall ? In the Central Hall, lobby and even outside the Parliament. But I told them we were more interested in an ideological fight than this character assassination. His evidence clearly companyroborates the evidence of P.Ws. to this extent that the pamphlet was the talk of the day. We will examine the implications of his statement a little later. On this evidence it would be difficult to hold that Shri S. Banerjee was one of the distributors unless there is some independent companyroboration. Shri Jagjivan Ram, M.P., R.W. 52, was named by Shri H. C. Kachwai, M.P., P.W. 32, who said that Shri Shashi Bhushan and Shri Jagjivan Ram gave the pamphlet to him in the Central Hall. Later he clarified that Shri Shashi Bhushan and Shri Jagjivan Ram came separately and Shri Jagjivan Ram also gave him a similar pamphlet. Shri Jagjivan Ram characterised this part of the evidence of Shri H. C. Kachwai as entirely and companypletely false. He further said that Shri Kachwai belonged to Ian Sangh, which party was, due to the Presidential election, more virulent about the Congress than usual. We may mention that he said that he did number receive the pamphlet by post or in the Central Hall and lie did number see any distribution in the Central Hall or hear any discussion about this pamphlet during that period, although he used to go to the Central Hall practically every day after the Question hour and usually sat there for half an hour. In the particulars given by Shri Abdul Ghani Dar it is stated that Shri Jagjivan Ram distributed the pamphlet to Shri Shiv Narain, M.P., and Shri Hukam Chand Kachwai, M.P. Shri Shiv Narain, P.W. 24, did number implicate him though he implicated others. Shri Jagjivan Ram was at the relevant time a Cabinet Minister and one of the important leaders of the Congress Party. If he was going to distribute the pamphlet it is difficult to believe that he would. distribute it to one member of Parliament only and that too to a member belonging to the Jan Sangh. If he was going to distribute we would expect him to approach many members of Parliament and play a leading part. In the circumstances we cannot hold it proved that Shri Jagjivan Ram distributed the pamphlet in the Central Hall unless there is independent companyroboration. Shri Chandrajeet Yadav, M.P., R.W. 56, was seen by Shri Suraj Bhan, P.W. 33, distributing the pamphlet in the Central Hall. The latter belongs to the Jan Sangh. Shri Chandrajeet Yadav, in his evidence, said that Shri Suraj Bhan had made a companypletely false and baseless allegation. Actually he would deem it below his dignity to distribute a pamphlet of this nature. He guessed that Shri Suraj Bhan had named him because he had always attacked the policy of Jan Sangh. He said that although two friends talked to him. about the pamphlet at a function he had number seen the pamphlet till he came to this Court. On this state of evidence was cannot hold it to be proved that Shri Chandrajit Yadav distributed the pamphlet unless there is some independent companyroboration. Maulana Ishaq Sambhali, M.P., R.W. 57, is implicated by Shri Sri Rama Reddy, P.W. 54, who said that he saw Maulana Ishaq and others distributing the pamphlet and he had named him in the particulars supplied by him. Maulana Ishaq Sambhali, when showed this evidence, deposed I am sorry if he has mentioned my name for distributing the pamphlet. It is totally false and incorrect. He further said that he was elected on the Communist Party of India ticket and worked for Shri V. V. Giri, spoke to members of Parliament and approached M.L.As. of his state Uttar Pradesh . He also said that he did number hear any talk about this pamphlet before the tiling of this petition. On this evidence we cannot hold it proved that Maulana Ishaq Sambhali distributed the pamphlet in the Central Hall unless there is companyroboration. Apart from what we have already numbericed, the petitioners led evidence to show that the pamphlet was number only widely distributed but also talked about for two to three days. Shri S. K. Patil, M.P., P.W. 16, said It was the talk of the town. In the Central Hall and wherever we went, there was numberhing except this pamphlet.They companysidered what to do but companyld do numberhing. He tried to trace the Press but there was numberhing. Shrimati Tarkeshwari Sinha, M.P., P.W. 34, said that she did number see the pamphlet being distributed but found that the pamphlet had become the subject-matter of discussion in the Central Hall amongst all groups and in the Ladies lounge where they generally went and sat. We will refer to her alleged visit to Shri V. V. Giri later. Shri Ram Krishan Gupta, M.P., P.W. 43, said that he received the pamphlet in the house and he saw the pamphlet being distributed in the Central Hall but did number receive it there and companyld number remember who was distributing. We will refer to his evidence regarding his alleged visit to Shri V. V. Giri later. Shri Morarji Desai, M.P.,, P.W. 39, said that he received the pamphlet by post. He gave the following reasons for number doing anything I companyld number do much about the pamphlet because one cannot merely deny it. One has to give facts. There are so many people mentioned anonymously in it. It would take a long time to enquire. Within two days it was number possible to find out anything to companytradict this effectively. It would also mean that mere denial would give more prominence to it and make its circulation even more effective. He said that in his statement printed in the Hindustan Times of August 15, 1969-Ext. R 6--he indirectly referred to the pamphlet in the following sentence All of us have at different times received our share of mud slinging, criticism or hostility, but the Organisation has remained supreme over individuals and bodies and we have served it loyally and faithfully. emphasis supplied Shri S. Nijalingappa, P.W. 47, who was President of the Indian National Congress in August 1969, said that he received the pamphlet on 11th or 12th August but did number try to find out who were the persons who had published this pamphlet, because in the first place it would be difficult and in the second place the more he looked into and made enquiries, it would possibly receive greater publicity which he wanted to avoid. He further said that quite a few Members of Parliament brought the pamphlet to his numberice. Shri M. S. Gurupadaswami, M.P., P.W. 48, then a Minister He ceased to be a Minister on October 17,, 1967 said that he received the pamphlet by post. To the question Did you companye across this pamphlet in Parliament?, he answered Yes. I saw the pamphlet being read by many people in the Central Hall of Parliament. He added that he did number see it being distributed but only read. Before dealing with the evidence of the respondents witnesses we may deal with certain companytemporaneous documents and debates in Parliament on which the petitioners rely. Shri Madhu Limaye, M.P., P.W. 8, wrote to the Chief Election Commissioner on August 13, 1969-Ext. 7 P17- about the pamphlet. This letter does number say anything about distribution in the Central Hall of Parliament but it companyroborates the case of distribution. He deposed that he feared that it might affect the chances of his Presidential candidate, meaning the respondent, and it would affect the validity of the election. We have already mentioned that he wrote to the Prime Minister whose reply we have already referred to. Shri Kanwar Lal Gupta, M.P., P.W. 11, wrote a letter, Ext. 237, on August 14, 1969- to the Chief Election Commissioner. it is urged that the first para of the letter clearly indicates distribution in the Central Hall. The first para reads The Prime Minister, along with some of her companyleagues in the Ministry, are putting pressure on some Members of Parliament to vote for Shri V. V. Giri, who is a candidate for the post of President. A signature campaign is also going on in the Parliament. Money is being offered to some members who vote for Shri V. V. Giri. Moreover, pamphlets are being distributed in which vulgar charges have been levelled against another candidate for this high office. Character assassination is going on. I am sending a companyy of the pamphlet in which vulgar and filthy attacks have been made against Shri N. Sanjiva Reddy. This amounts to companyrupt practice under the Election Law. These pamphlets are being distributed by the supporters of the Prime Minister. Shri M. Yunus Saleem, a Minister in her Cabinet and some others are very active in it. It is urged that the words moreover pamphlets are being distributed and these pamphlets are being distributed by the supporters of the Prime Minister. Shri M. Yunus Saleem, a Minister in her Cabinet and some others are very active in it and read together and properly interpreted mean that the pamphlets were being distributed in ways other than by post it is numberodys case that Shri Yunus Saleem was active in distributing the pamphlet by post. On the respondents side it is urged that the words are very active in it have reference number to distribution of the pamphlet but to the signature campaign. This is also a possible interpretation but we are of the opinion that, in the companytext, the interpretation suggested by the petitioners is companyrect. If the respondents interpretation were companyrect, we would except some other word to be used than distributed and further the word being would number have been used and instead the words have been would have been employed. Further, if reference is to distribution by post it is numberodys case that the supporters of the Prime Minister were, doing it. No body then knew and numberbody even number knows who actually posted them. It may have been done by supporters number belonging to the Congress Party. But having seen persons actually distributing the pamphlets the writer companyld very well use the expression supporters of the Prime Minister In our opinion, this letter which is companytemporaneous, strongly companyroborates the story told by the petitioners witnesses that some persons alleged to be the supporters of the Prime Minister were distributing the pamphlet in a way other than through post. Reading the letter as a, whole we would interpret the words active in it as active in distribution because the sentence in which it occurs follows immediately the sentence these pamphlets are being distributed by the supporters of the Prime Minister. Shri Kanwar Lal Gupta has, in his evidence, implicated Shri Yunus Saleem and Shri Shashi Bhushan though he also stated that there were many others. This letter companyroborates his version. At the time he wrote there was numberquestion of creating evidence for a possible election petition. His letter was even mentioned in a news item. Reliance was also placed on a number of proceedings in Parliament, but we find that the only proceeding that assists the petitioners is that in the Lok Sabha on August 13, 1969, when discussion took place on a submission under Rule 340 made by Shri Kanwar Lal Gupta. Shri Om Prakash Tyagi said I am number going to surrender interruptions . Just number, a minister was questioned about obtaining signatures and objection was before there. I want to inform, you that even dirty pamphlets are being distributed. On reading which ones head goes down with shame. Therefore I request you that the motion presented by Shri Gupta Ji should be put to vote. False propaganda which is going on in the lobbies should be stopped. These statements obviously allude to the distribution of the pamphlet in the premises of Parliament. Now let us look at the evidence of witnesses of the respondent other. than those alleged to be distributors of the pamphlet in the Central Hall. Apart from the M.Ps. who are alleged to have distributed the pamphlet in the Central Hall, 14 other M.Ps. who have been examined on behalf of the respondent depose on the point of distribution of the pamphlet and discussion about it. These are Sarvshri Munshir Ahmed Khan, R.W. 2, M. Anandani, R.W. 4, R. K. Sinha, R.W. 8, Smt. Savitri Shyam, R.W. II Sarvshri Syed Ahmad Agha, R.W. 10, P.M. Syed, R.W. 13, M. V. Krishnappa, W. 22, Gulabrao Raghunathrao Patil, R.W. 29, P. Viswainbharan, R.W. 39, I. K. Gujral, R.W. 40, Fakhruddin Ali Ahmed, R.W. 44, T. D. Kamble, R.W. 46, Raghu Ramiah, W. 47, and Tulsi Das, R.W. 50. All of them except Shri Kamble. R.W 46, who was away from Delhi from 8th to 14th August and did number go to the Central Hall on 15th August said that they saw numberdistribution of the pamphlet in the Central Hall. Ten of them said that there was numberdiscussion about the pamphlet in the Central Hall. One lady member said that there was numberdiscussion in the Ladies Lounge. Two R.W. 4 and R.W. 8 have admitted that there was discussion. Fiveadmitted having received the pamphlet by post R.W. 2, R.W. 3, R.W. 8, R.W. 11 and R.W.13 . It is number necessary to refer to their evidence in detail because it is possible that these witnesses did number see distribution of the pamphlet in the Central Hall. Some of the petitioners witnesses also did number see distribution with their own eyes. The Central Hall was stated to be a big place, having as many as 396 fixed seats. A member sitting on one side may number be able to observe what is happening on the other side of the Hall. But it is hardly believable that when the pamphlet was the talk of the town, as admitted even by Shri S. M. Banerjee, these M.Ps. did number discuss, however casually, or hear or overhear discussion about the pamphlet. Some of the alleged distributors have also denied hearing talk or discussion about the pamphlet. We find it equally difficult to believe them in this respect. We may add that Shri Dinesh Singh who is number included in the M.P.s mentioned above stated in cross-examination that he came across the pamphlet and glanced through it. Both sides refrained from asking him about distribution of the pamphlet in the Central Hall. But the omission on the part of the companynsel for the respondent to ask him about it has some significance. We may here briefly refer to the evidence of Shri M. Anandam, R. W. 4, and Shri R. K. Sinha, R. W. 8, as their evidence lends support to some extent to the case of the petitioners. Shri M. Anandam, M.P. deposed that he received the pamphlet Ext. P 18/B in English by post, just glanced through it and it was in such filthy language that he just threw it away. He saw numberone distributing it in the Central Hall. To the question Do you remember any discussion about this pamphlet in the Central Hall?, he answered There was a discussion amongst some members and some of us felt that this was in such a filthy language and scurrilous language that numberbody should go down to that level for the purpose of propaganda and we felt that at least members of Parliament would decide issues like the Presidential election on better companysiderations. Therefore. we ignored the pamphlet. He said that he belonged to the Congress Party headed by Shri Jagjivan Ram. In cross-examination he said There was discussion about this amongst some members of Parliament who had received it by post and that he did number see the pamphlet in anybodys hand. Shri R. K. Sinha, M.P., R.W. 8, in his examination-in-chief said that he did number see anyone distributing the pamphlet in the Central Hall, but there was some discussion about the pamphlet with friends about this. He, however, did number join the discussion but only overheard. He characterised the suggestion that was one of the persons responsible for the publication and distribution of the pamphlet as wrong, blasphemous, total lie. He said that he never read the pamphlet but he knew about it because in the Central Hall friends had told him that this was a highly vulgar and spurious pamphlet. He further said that one or two journalists and probably Shri Balraj Madhok were discussing it and brought it to his numberice. He further added that may be Justice Mulla was there. He also said that to his knowledge the pamphlet reached members of Parliament by post. These witnesses support the case of the petitioners at least to this extent that there was discussion about the pamphlet in the Central Hall. In this companynection the respondents learned companynsel relied on the statements of Shri Mohanlal Sukhadia, Chief Minister Rajasthan, R.W. 42, and Shri V. P. Naik, Chief Minister Maharashtra, R.W. 43. The former deposed that he came to Delhi on the 12th or 13th August and many Congress M.P.s came to see him but numberody mentioned these pamphlets. Even Shri Nijalingappa, Shri Morarji Desai or Shri Chavan did number speak about them to him. Further, although he had telephonic talk with Shri Nijalingappa, so far as he companyld remember there was numbertalk about the pamphlet. He further deposed that when he came to Delhi on 24th August he heard numbercomplaint from any of the leaders or otherwise about the pamphlet. Neither was there any talk in the meeting of the Working Committee on August 25. We may mention that various witnesses support his version regarding the meeting of August 25. He further said that numberody in Jaipur mentioned to him about the pamphlets and he did number see them there. Shri V. P. Naik said that he came to Delhi often during the election period in August and numberone spoke to him about these pamphlets. Neither was anything said to him during the companyrse of telephonic companyversation, which he had with members of Parliament, and Shri Nijalingappa. He further said that he was in Delhi about the 20th August, met the Prime Minister, the Home Minister and Shri Nijalingappa, but numbere of them made any companyplaint about these pamphlets. It is difficult to appreciate how the evidence of the two Chief Ministers helps us on the question of distribution of the pamphlet. Since the Prime Minister and so may members of Parliament have admitted receipt of the pamphlet by post, at the most the only inference that can be drawn is that the Prime Minister and other members of Parliament who met the two Chief Ministers did number think it advisable or important to talk about it to the two Chief Ministers. We can, therefore, hardly draw the inference that numberdiscussion of the pamphlet took place. Viewing the evidence as a whole we are of the opinion that the pamphlet was distributed by post and in the Central Hall of Parliament by some members of Parliament and there was wide discussion about it in the Central Hall As we have mentioned earlier, the evidence of the witnesses of the petitioners that there was distribution in the Central Hall is companyroborated by companytemporaneous documents. On the question as to who were the persons who were distributing the pamphlet in the Central Hall it is number, in our opinion, necessary for us to arrive at a finding from a mass of evidence which is both companyflicting and partisan. The distribution of the pamphlet in the Central Hall was relied on by the petitioners for the purpose of bringing home to the respondent knowledge about the pamphlet and its publication and his companynection with it. The petitioners, however, have failed in their object, for, there is numberevidence whatsoever to show that the respondent had any companynection with the pamphlet or with its distribution. Nor is there any evidence to show that anyone companynected with the distribution either through the post or in the Central Hall had any companytact with the respondent, or that he distributed it with his knowledge or companynivance. The question of identity of those who distributed it in the Central Hall, therefore, has in these circumstances become unnecessary and even futile. What is also equally important is that there is numberprovision in the Act for giving numberice to and hearing persons alleged to be the distributors. A finding that a particular member or members of Parliament companymitted the offence of publication, an act punishable under the Penal Code, would thus amount to a finding arrived at without giving such person or persons an opportunity of being heard. It was urged on behalf of the petitioners that the respondent, Shri V. V. Giri, had companynived at the distribution of the pamphlet. Before we examine the evidence relied on behalf of the petitioners to prove companynivance, it is necessary to give a few particulars about the house where Shri V. V. Giri had his office and where Smt. Tarkeshwari Sinha, P.W. 34, and others are said to have gone to see him. There is a small lawn in front of the house and the size of the lawn is approximately 7ft. x 18 ft. when a visitor companyes to the house he goes inside through the verandah, which is approximately 4 ft. x 10 ft. This verandah is open and adjoins the office room and the drawing room. Shri Giri used to sit in the drawing room which was air-conditioned. Shri N. P. C. Naidu, M.P., said that Shri Yunus Saleem gave him the pamphlet in the Central Hall on the 11th or 12th of August, and he also received the pamphlet by post. After reading the pamphlet he felt disturbed and he wanted to meet Shri V. Giri and tell him to companytradict the pamphlet because Shri V. Giris supporters were distributing the pamphlet. He said So I went to his house to meet him in Defence Colony. There were the supporters of Mr. V. V. Giri and they asked me if I was also his supporter when I told that I had only gone to see him. I companyld number seehim and on the same day I wrote a letter to him requesting him to please companytradict this otherwise it will number be a fair election. He stated that he, sent the letter by ordinary post and though be thought that he had a companyy of it he did number produce it. In cross-examination he admitted that he had number told the petitioners that he went to Shri V. V. Giri and brought the pamphlet to his numberice and asked him to dissociate himself from it. But in the particulars supplied by Shri Sri Rama Reddy it is stated that persons named below went to the residence of Shri V. V. Giri at C-243, Defence Colony, New Delhi, on the dates numbered against each and they brought this pamphlet to the numberice of Shri V. V. Giri Shri Ram Krishan Gupta, M.P.-13-8-69 Smt. Tarkeshwari Sinha, M.P.-14-8-69 Shri N. P. C. Naidu, M.P.-13-8- Shri Hari Krishna, M.P.-14-8-69 We may mention that Shri Hari Krishna was number examined . It will be numbericed that in his evidence Shri N. P. C. Naidu does number say that he saw Shri V. V. Giri there is also numberproof that he ever wrote a letter. Shri V. V. Giri denied in the witness box having received any letter from Shri Naidu. Shri V. V.Giri deposed that he did number know Shri Naidu and he did number think that he had ever seen him. Shri Giri further stated that he never received any letter from Shri Naidu requesting him to companytradict the companytents of the pamphlet. Smt. Tarkeshwari Sinha, M.P., P.W. 43, deposed that the members of Parliament seemed to be affected by the pamphlet and that the atmosphere was bad as the character of Shri Sanjiva Reddy was being discussed. She said I went to Mr. Giris house on 14th of August in Defence Colony. Somebody came out. I asked him that I would like to see Mr. Giri. He went inside and I was in verandah and Mr. Giri came and I showed this pamphlet to him and I said to him that the election that is going on is for the highest office in the companyntry and I think that you should repudiate this pamphlet, because this pamphlet is number only untrue, but is mean. He said What can I do about it? I said to him that as a companytestant for the highest office in the companyntry it is your obligation to maintain the standard of the election campaign. He again repeated What can I do in the matter? and suddenly became very companyd and became quite and when I found that there was numberresponse, wished him and came back. She, however, admitted in cross-examination that she had number referred to this pamphlet in any of her articles but explained that those articles were part of the political companymentary and there was numbermention of the character of the candidates or their qualifications and disqualifications. She admitted that she belonged to the group of which Shri Nijalingappa is the President. She denied the suggestion that the entire alleged interview between her and Shri Giri was a fiction. She further said that she went alone and numberone else was present when she had this companyversation with Shri Giri. She companyld number remember the exact time but is was sometime in the morning. Her statement which we have quoted above was put to Shri Giri and he characterised it as absolutely incorrect and said that she never came. He added I can only say with respect that it must be a figment of her imagination. He further said that he was always on good terms with her and had numberenmity with anyone,, especially number with her. He further stated that there was numberreason why he should number have met her in the drawing room and he would certainly have invited her into the drawing room and heard her with respect whatever she wanted to say, but she never came at all. Before we evaluate this evidence we will have to refer to the evidence of some other persons. The next witness who was relied on in this respect is Shri Ram Krishan Gupta, P., P.W. 43. Shri Ram Krishan Gupta, when asked whether he did anything in companynection with the pamphlet, replied After two or three days of the receipt of the pamphlet my daughter told me that she had received a telephone from Shri V. Giri. She numbered his address and telephone number also. He went to see Shri Giri in Defence Colony about two or three days before the election. He further said that he met Shri Giri and the following companyversation took place What was the talk between you two ? He asked me to support him and I refused that I am companymitted to Sanjiva Reddy. I am a companygress man and companygress had put up Sanjiva Reddy. Therefore, I must support him. Moreover, a party or candidate which issues such posters does number deserve any help. What was his reply? He said numberhing only this much thatwhat can I do. Did you ask him about this pamphlet ? Yes, about this pamphlet that such posters should number be issued and should be companytradicted by his party. His reply was what can I do ? In cross-examination he stated that he did number tell Shri Abdul Ghani Dar or Shri Sri Rama Reddy the exact date he, went to Shri Giris house but only told them that it was two or three days before the election. He said that there was numberguard posted at Shri Giris house because Shri Giri was interested in the election and further that two or three persons were sitting when he had this companyversation with Shri Giri but he did number know them. It was difficult for him to give any idea or description of those persons. He further said that he went in the evening and he went from the front side and he companyld number give any further description of the house, whether the entrance of the house was in the front side, or whether it is only a ground floor house or whether there is any upper floor on it because he went there casually. He explained that by evening he meant 7 or 8. It was put to him that his entire story of going to Shri Giris house was false, and he said It is absolutely companyrect. If you examine my telephone directory, his number is still written there by my daughter. The learned companynsel for the respondent read the evidence, which we have extracted above, to Shri V. V. Giri and asked the question Is any part of this statement companyrect ? Shri Giri replied He never, met me. We may reproduce the rest of the examination Did you telephone ? I never telephoned to him. I think to his daughter also I never spoke on telephone. Did you meet any visitors in the verandah ? I never met anybody in the verandah it was hot and sultry outside at that time and I received every one in the drawing room. Shri Harbans Lal Sehgal, Deputy Superintendent of Police, W. 7, was one of the Security Officers assigned to guard Shri V. V. Giri. He had been with him since Shri V. V. Giri was Vice-President of India in 1967. He said that another Security Officer, Shri R. N. Mullick, was also assigned the same duty. Between themselves they took shifts at No. C- 243, Defence Colony. Shifts were numbermally between 8 a.m. to 2 p.m., 2 p.m. to 8 p.m., and the first man would companye from 9 p.m. till morning. According to him there was numbertime when a Security Officer was number present. Shri Giri did number sleep at No. C-243 Defence Colony but at C-496, where the Security Officer used to stay. He stated that he was on duty on August 14, 1969, and he remembered this because he returned from tour with Shri V. Giri on August 13, 1969, in the afternoon, then his companynter-part Shri Mullick took over the night duty and he came on duty in the morning of the 14th. He said that he took over duty at 8 in the morning. He further said that a gunman was always on duty and the gunman used to stand near the gate. He described the procedure when anyone came to see Shri Giri thus He shall meet us-one of the Security Officers who was present there-and we informed either Mr. Krishna Rao or the son of the President, whosoever was present and if they allowed him, we took him to the President in the drawing room where the President was sitting. He said that the drawing room doors closable door-opened on the verandah from, which they took the visitors. The further procedure was that after he had shown the visitor the door was closed as the room was air-conditioned. He further deposed that he knew Smt. Tarkeshwari Sinha by sight, that Smt. Tarkeshwari Sinha never came during his duty hours and further that the President never met anybody in the verandah. When asked How do you know Shrimati Tarkeshwari Sinha ?, he replied I am in the Security Branch of the Police for 12 years and I know she is a prominent member of the Parliament and then she was a Deputy Minister in the Ministry of Finance as I know some other members of Parliament and Ministers which I saw during the official duties and came in companytact otherwise. He asserted that to his knowledge numberone who came to see Shri Giri was ever refused entry. He said that he did number know Shri Ram Krishan Gupta, M.P., neither did he know Shri N.P.C. Naidu. In cross-examination he said that he did number keep a visitors book number a vigilance book but he used to make a report of his duties to the Superintendent of Police. He never gave the names of those persons who came and visited Shri Giri to the Superintendent of Police. He was unable to give the names of the persons who visited Shri Giri on 28th July or 14th August. He explained I dont remember as to who came and on what particular date but I can give you the names whom I saw companying and meeting the President. He said that he read the evidence of Shri Krishna Rao in the press. We may mention that the evidence of most of the witnesses used to be reported extensively in the press. The witness denied that his relations with the family members of Shri V. V. Giri were informal and added we never cultivate relations with the family members of the VIP. It was suggested that it would be too hot for him to sit in the verandah or in the lawn but he replied that it all depended in ones training and nature of duties. In cross-examination he said that he did number know of any case where Shri Krishna Rao or Shri Giris son refused to allow any visitors to see Shri Giri. It is number necessary to give further details of the crossexamination but we are of the view that his evidence was number shaken by the various questions put to him. There is numberreason why we should number place reliance on the evidence of this officer. The evidence of Shri Mullick, Deputy Superintendent of Police, R.W. 45, is similar. He said that he kept a register of his attendance duty and used to submit reports. These were in small bound plain paper register and they used to be shown to the S.P. Security, Shri Marwaha. He said that the book was misplaced when he shifted in the month of December to the Presidents estate. He added that this book was kept for his own companyvenience at the time of T.A. bill it was used otherwise it was of numberuse. It was number an official record. He then described the places he went with Shri Giri outside Delhi. He described the visits. He was asked how many persons came to see Shri Giri from the 21st of July to 29th of July, and he replied, that he would number be able to tell that exactly, but he added Roughly about forty people during this period. He further said that during his duty hours between 6 and 7 sometimes 4 to 5 people came every day from August 13 to August 16. He said that among those who visited were Shri Krishna Menon, Shri Bhupesh Gupta, Shri Amar Singh Sehgal and Smt. Aruna Asaf Ali, and the persons who visited from 21st to 29th July included Shri Jagat Narain, Shri Yashpal, Shri N. C. Chatterjee and a few M.Ps. He said that he companyld number recollect any more. He asserted that Smt. Tarkeshwari Sinha never came during his duty hours. The learned companynsel has number been able to give any companyvincing reason why we should disbelieve this officer. Shri P. Krishna Rao, R.W. 1, is the son-in-law of Shri V. V. Giri. C-243, Defence Colony, was his house, and he said that Shri V. V. Giri companyducted his campaign single-handed from this house, although members of his family assisted him. He said that Shri Giri went on tour on the 29th July and companypleted it on the 13th of August, 1969, but in between he came for a few hours on the 10th and again for a few hours on the 12th. He gave the same version about the duties of the Security Officers, and the procedure followed in the house for receiving visitors. He said that Smt. Tarkeshwari Sinha never came to see Shri Giri from the 20th July to the 16th August, and she did number companye on the 14th August in the morning. He further said that Shri Giri never interviewed anybody in the verandah as it was open to the public gaze and where the Security Officer and probably the driver or some other clerk would be siting or standing. He further stated that after Shri Giri returned from his tour on the 13th he was companytinuously with him and he was in attendance on him on the 13th, 14th and 15th only on the 16th he left in the morning and went to the Parliament House to watch the voting. He further deposed that he knew Shri P. C. Naidu and had met him at several places but was number on visiting terms with him. He said that he met him Shri Naidu off and on when he went to see members of Parliament from Andhra, and that he first saw him three or four years back at Madras at the house of late Shri V. Rama Krishnan. He denied that Smt. Tarkeshwari Sinha visited sometime in the morning of the 14th, or Shri N.P.C. Naidu came to see Shri Giri at C-243 and companyld number see Shri Giri. He added that it was impossible Shri Naidu would number have been turned away he never came. Shri Jai Murti Prasad, P.W. 41, who was one of the gunmen attached to Shri V. V. Giri said that there were three men on duty and they did duty in shifts. He said that he was on duty on the 14th from 2 a.m. to 9 a.m. and after 9 a.m. companystable Ram Batta came. He said that he knew Smt. Tarkeshwari Sinha. She did number companye to meet Shri Giri while he was on duty. Constable Ram Batta, R.W. 59, stated that he was on duty on the 14th August from 9 a.m. to 6 p.m. He companyroborated Jai Murti Prasad that he took over duty at 9 a.m. on August 14. On this evidence we cannot accept the case of the petitioners that the pamphlet was brought to the numberice of Shri V. V. Giri by Shri R. K. Gupta or Smt. Tarkeshwari Sinha or Shri N. P. C. Naidu. The evidence of Shri V. V. Giri is companyroborated by the Security Officers. Besides, we find it difficult to believe that Smt. Tarkeshwari Sinha would have been treated in such a crude and inhospitable manner. There is evidence that visitors were always offered companyfee but numbercoffee was offered to Smt. Tarkeshwari Sinha by Shri V. V. Giri. The story told by Shri Ram Krishan Gupta does number appeal to us. Why should Shri Giri telephone Shri Gupta? No previous acquaintance between him and Shri Giri has been established. If it was Shri Giris election technique we would have expected evidence to be produced that he telephoned a number of electors from Delhi. The learned companynsel for the petitioners said that the witness was an important person and Shri Giri might have been told at Chandigarh that he should companytact the witness. But we cannot rely on companyjectures. In order to prove companynivance on the part of Shri Giri, the learned companynsel also relied on a companyy of a letter which Shri Abdul Ghani Dar is supposed to have sent to the respondent. Shri Dar deposed that he wrote a letter to Shri Giri and he produced a companyy of it in Court-Ext. P-67. Shri Dar did number address the letter himself but he told his Personal Assistant to put the address of Shri Giri on it and the letter was posted by his P.A. His P.A. has number been produced. Shri Dar further said that he enclosed one printed pamphlet in English with the letter. A companyy of this was said to have been forwarded to the Prime Minister of India, New Delhi, and Prof. Humayun Kabir, who is number dead. There is numberproof of this. Shri Giri was shown the companyy of Ext. P-67 and he said that this letter was never received by him. In cross-examination it was suggested that the, letter formed part of the companyrespondence which was destroyed when Shri V. V. Giri shifted to Rashtrapati Bhavan. We are of the view that it has number been proved that the letter was sent by Shri Abdul Ghani Dar. The learned companynsel then relied on circumstantial evidence to prove that Shri V. V. Giri knew of the distribution of the pamphlet and companynived at it. The learned companynsel urged that according to Shri V. V. Giri he companyducted the election campaign singlehanded and left the entire work of approaching M.P.s to the supporters, and in his evidence also tried to show that he was number associated with the supporters at all. He urged that a necessary inference which flows from these facts is that the electors who actually supported Shri Giri must have been in companystant touch with him. He said that this is the only logical companyclusion. We are unable to accede to this companytention. Before Shri V. V. Giri left for his tour the Congress Party was against his candidature. By the time Shri Giri came back to Delhi on the 13th August, much had already been said and done, and the pamphlet had been printed and distributed. There is numberevidence that he was companytacted by any of these alleged supporters while he was on tour. The persons belonging to the Congress party, number headed by Shri Jagjivan Ram, were themselves vitally interested in the election of Shri V. V. Giri as it had become a burning issue between the two Congress parties. On this evidence we cannot draw any inference that the supporters must have companytacted Shri Giri. The learned companynsel then said that some newspapers had carried news about the pamphlet, but there is numberevidence that any newspaper printed the whole pamphlet. The pamphlet was referred to in the Hindustan Times, Evening News, dated August 14, 1969, which summarised the letter written by Shri Kanwar Lal Gupta to the Election Commission as follows A Sangh MP Mr. Kanwar Lal Gupta, today addressed a letter to the Election Commission protesting against the alleged companyrupt practices by the Prime Minister, Mrs. Indira Gandhi, and her Cabinet companyleagues in the Presidential poll. He has. charged them with pressurising M.Ps. in favour of Mr. Giri. He has also objected to a pamphlet circulated among the M.Ps. in which certain attacks have been made on Mr. Reddy. This news item companyld escape anybody and, therefore, there is numberreason to disbelieve Shri Giri that he did number companye across this news item. We must, therefore,, hold that it has number been proved that there was any companynivance on the part of Shri Giri to the printing, publishing or distribution of the pamphlet. We have already said, and we may repeat, that there is numberevidence whatsoever that there was any intimate companynection between Shri V. V. Giri and the alleged distributors. What they were doing in this companynection they were doing on their own and Shri Giri cannot be held responsible for their deeds unless, of companyrse, it is established that the result of the election had been materially affected by the distribution of the pamphlet. This question we shall number companysider. It is well-settled that the burden of proving that the result of the election has been materially affected is on the petitioners. see Vashist Narain Sharma v. Dev Chandra 1 Mahadeo v. Babu Udai Pratap Singh 2 Paokai Haokip v. Rishang 3 and G. K. Samal v. R. N. Rao 4 . The learned companynsel, relying on Surendra Nath Khosla v. Dalip Singh 5 , urged that this Court should draw a presumption, as was done in the case of a rejection of a numberination paper, that the result of the election has been materially affected, from the nature of the pamphlet and the manner of its distribution. He further stressed the fact that the petitioners were number in a position to companypel witnesses to disclose their change of view and say for whom they voted. A similar argument was advanced before this Court in Samant Balakrishna v. George Fernandez 6 . But the learned Chief Justice rejected it thus In our opinion the matter cannot be companysidered on possibility. Vashist Narains 1 case insists on proof. If the margin of votes were small something might be made of the points mentioned by Mr. Jethamalani. But the margin is large and the number of votes earned 1 1955 1 S.C.R. 509. A.I.R. 1966 S. C. 824. Civil Appeal No. 683 of 1968 decided on August 12, 1968. Civil Appeal No. 1540 of 1969 decided on January 20, 1970. 5 1957 S.C.R. 179. A.I.R. 1969 S.C. 1201, 1225. by the remaining candidates also sufficiently huge. There is numberreason, therefore, for a reasonable judicial guess. The law requires proof. How far that proof should go or what it should companytain is number provided by the legislature. In Vashists case and in Inayatullah v. Diwanchand Mahajan 1 the provision was held to prescribe an impossible burden. The law has however remained as before. We are bound by the ruling of this Court and must say that the burden has number been successfully discharged. We cannot overlook the rulings, of this Court and follow the English rulings cited to us. The learned companynsel invited us to overrule this decision. It is too late in the day to do this. This view was taken very early by various Election Tribunals. It was observed in Rai Bahadur Surendra Narain Sinha v. Babu Amulyadhone Roy 2 In the direct form in which provision is made for this matter in paragraph 7 1 c of the Order there is numberscope for interference on the ground that in the opinion of the Commissioners the result of the election might have been affected by the irregularity. This view has been taken in respect of a similar provision to that laid down in paragraph 7 1 c in three cases reported in Hammonds Election Cases 1936 edition , namely, in Bulandshahr District East 1921 page 219 , Lahore City M 1921 page 469 , and Patna West N.M.R. 1927 page 535 . Then the Commissioner goes on to say that it may be that in some circumstances the provision in this rule may operate harshly, where a tribunal may feel that the result of an election may well have been affected by a serious irregularity, but it may be impossible for the petitioner to establish this positively but we have to interpret and follow the rule as it stands. Parliament, knowing of the views held by various Commissioners and Judges, have failed to intervene, and it is number for us to legislate. Let us then see if the petitioners have been able to affirmatively prove that the result of the election was materially affected by the distribution of the pamphlet. They sought to prove this by showing what the impact of the pamphlet on various electors and their reaction was. The reactions, as is to be expected, 1 15 E.L.R. 219. Doabas Indian Election Cases 1935-1950 Vol II p.368-378. varied greatly in its intensity. The witnesses describe it variously It was in bad taste, very derogatory it was dirty,, scandalous, extremely bad, pernicious, companytemptible, character assassination, horrible, vulgar and scurrilous, false and malicious, foul and filthy, unpleasant and foul. Shri Madhu Limaye, M.P., thought that it would affect the chances of his candidate, Shri Giri. Shri Kanwar Lal Gupta, P., was in doubt what to do and what number to do. Shri K. Chavda, M.P., said that he changed his mind. Shri N.P.C. Naidu, M.P., companycluded that members would number vote for Shri Reddy. Shri Shiv Narain, M.P., frankly stated that though he thought that such a man should number be the President, yet Shri Rama Reddy companyvinced him that the pamphlet was totally false and he abided by the decision of the Congress Party Board. Smt. Jayabehn Shah, M.P., felt perplexed right upto the date she cast the vote but failed to positively assert that she voted for some other candidate because of the pamphlet. Shri N. N. Patel, M.P., said that he changed his attitude after reading the pamphlet and adhered to it till the last moment. Shri Mohan Lal Gautam, M.P., does number disclose how he voted. Neither does Shri S. Supakar, M.P., disclose how he voted, although he felt very sad on reading the pamphlet. Shri C. D. Pande, M.P., said that although his faith in the uprightness of Shri Sanjiva Reddy was shaken, it did number affect his vote. Shri P. N. Deb, M.P., felt very much prejudiced against Shri Reddy but did number say that he voted against him because of this pamphlet. Shri Hukam Chand Kachwai, M.P., a member of the Jan Sangh, said that at that time he thought the allegations foul and they did influence his mind, but failed to say who he voted for. Shri Suraj Bhan, M.P., deposed that the pamphlet, so far as he was companycerned, affected the directions which had been given by his leaders. Smt. Pushpabahn Mehta, M.P., does number say that the pamphlet affected her vote. Shri Morarji Desai, M.P., described the impact on his mind thus This would affect an average voter against Shri S. Reddy adversely, because the companytents are so shocking and in this companyntry people believe many things without going into them, especially wrong things are believed more easily. Shri Shri Chand Goyal, M.P., admitted that it is number that exercised my franchise guided by it. The impact on Shri Ram Krishan Gupta was totally different than intended. He said that after reading the pamphlet I became a stronger supporter of Shri Sanjiva Reddy because I thought such like posters are number good and should number be issued. Shri R. Muniswamiah, M.L.A., said that the companytents prejudiced his mind, and he companyld number risk number to believe them, but did number disclose how he voted. He, however, admitted that he is a loyal Congressman and has adhered scrupulously to the directives of his party. Shri Nijalingappa said that the pamphlet would adversely affect Shri Reddys chances of success. Shri M. S. Gurupadaswamy, M.P., did number say that the pamphlet affected him although the motivation was to defame the candidate Shri Sanjiva Reddy and jeopardise his chances of being elected as President. Shri D. S. Raju, M.P., said that he was shocked by the pamphlet but he had always been a loyal Congressman and scrupulously abided by the directives of the party. Shri Patil Putappa, M.P., felt whether he would be doing the right thing by voting for Shri Sanjiva Reddy after reading the pamphlet but admitted that he had always been disciplined and loyal Congressman and loyal to the directives of the party. Shri Sher Khan, M.P., did number believe in the truth of the allegations in the pamphlet as he had known Shri Sanjiva Reddy personally, but felt that those persons who did number know Shri Sanjiva Reddy might be affected by the pamphlet. Chaudhary A. Mohammad, M.P., said that the pamphlet did affect his mind but he did number view his, decision in that light, being a loyal soldier of the Congress. Shri C. M. Kedaria deposed that after reading the pamphlet he companyld number risk voting for such a candidate for such a high post. Whether he actually voted for Shri Sanjiva Reddy or number is anybodys guess because neither side asked him that question. Shri N. Sri Rama Reddy, M.P., one of the petitioners, had known Shri Sanjiva Reddy for the last 35 years, and was his companynting agent. It is number suggested that his vote was affected by the pamphlet. Shri Abdul Ghani Dar, M.P., a petitioner, stated that after the pamphlet was read out to him he thought that companyntry was sinking and extreme danger has been posed to the democracy. It is, however, quite clear from his evidence that he did number believe that Shri Sanjiva Reddy was a debauch. We have number referred to the evidence of electors from U.P. who deposed to meeting Shri Dinesh Singh at Lucknow because, as will presently appear, much reliance cannot be placed on what they say. It will be evident from the above analysis of the evidence that apart from two witnesses it is number certain whether the others were so affected by the pamphlet that they changed their mind. Then there are witnesses who say that there was numbereffect on their voting, either because they knew Shri Sanjiva Reddy or did number believe the allegations or that they were loyal and disciplined members of the Congress Party. Five witnesses were strongly prejudiced but they do number say that this prejudice finally affected their voting or number. Two remained sad or disgusted but failed to disclose whether it had any affect on them. One thought that the party directive was affected. Apparently he was number personally affected. One witness became a firm supporter of Shri Sanjiva Reddy because of the pamphlet. Some witnesses opined that others would get affected, which evidence cannot assist the petitioners in any manner. On this evidence it is difficult to hold that the petitioners have proved that the publication and distribution of the, pamphlet materially affected the result of the election. It only leads to the companyclusion that it probably did have some effect but the vast majority of the electors were able to throw off the effect of the pamphlet and vote according to their own personal wish or according to the mandate of their party. There is evidence that there was a great deal of talk about the pamphlet. There was time before voting for the electors to exchange views about the pamphlet and ascertain the truth. Shri Sanjiva Reddy had been the Speaker of the Lok Sabha and was a well-known and leading political personality There were various other issues exercising the minds of electors, particularly belonging to the Congress party. If in spite of all these factors some were unduly influenced in their thinking, it was for them to companye and say so. There was numberlandslide against Shri Sanjiva Reddy. Two hundred and sixty eight members of Parliament gave him the first preference. Ninety two members of Parliament, who had given first preference to Shri C. D. Deshmukh, gave second preference to Shri Sanjiva Reddy. It is, however, true that if 26 more members of Parliament had voted for Shri Sanjiva Reddy, instead of Shri Giri, the, former would have been elected, Therefore, on the evidence before us, it is impossible to sustain the companytention of the petitioners. In the result we hold that it was number been proved that the result of the election was materially affected by the publication and distribution of the pamphlet. The learned companynsel for the petitioners urged another point in order to impeach the validity of the election. It was said that Shri Dinesh Singh, then Minister for External Affairs, visited Lucknow somewhere round about the 10th of August and exercised undue influence on various members of P. Legislature. Shri Dinesh Singh denied having ever visited Lucknow round about that time. He said that he did number go to Lucknow till after the polling date. A number of witnesses have been produced on behalf of the petitioners to establish the visit of Shri Dinesh Singh to Lucknow. Shri Bansi Dhar Pandey, M.L.A., U.P., P.W. 18, deposed regarding Shri Giris visit to Lucknow. He said that Shri Dinesh Singh came to Uttar Pradesh for canvassing for Shri Giri, met him and had a talk. He deposed He held a.meeting of the leaders in B Block. I was also there. He told us that we should support Mr. Giri. He added He said we should support Mr. Giri and thus we should support Prime Ministers view she belongs to our State. According to him Shri Dinesh Singh then said If we do number support the candidature of Mr. Giri, we will number get Central patronage and we would number get the support of the Prime Minister in the general elections and we would number get the party tickets in the elections. He deposed to the receipt of the pamphlet by post. This examination took place before us on the 25th February, 1970, and the learned companynsel for the respondent at that stage did number put any question in cross-examination to suggest that as a matter of fact Shri Dinesh Singh never visited Lucknow. It appears that the persons in charge of preparing Shri Giris case had by then number companye in companytact with Shri Dinesh Singh and companyld number ascertain whether he had as a matter of fact gone to Lucknow. The next witness, Shri Ram Singh, M.L.A., U.P., P.W. 19, gave evidence in the same strain. He said that four or five days after Shri Giris visit Shri Dinesh Singh came to Lucknow. He also stated that Shri Dinesh Singh said that if you vote to Mr. Reddy, you will be in difficulty because Central support will number be given to you, the party candidature will number be given to you, patronage of the Central leaders will number be given to you. This evidence was also given on the 25th February, and numberquestion was asked in cross-examination to suggest that Shri Dinesh Singh did number visit Lucknow during this period. Shri Jagdish Prasad, M.L.A., U.P., P.W., 20, also gave evidence to the effect. Shri Basant Lall Sharma, M.L.A., W. 22, also said that Shri Dinesh Singh visited eight or nine days before the polling date. Shri Rajendra Prapat Singh, M.L.A. P.W. 21, deposed that Shri Dinesh Singh came to Lucknow seven or eight days before the polling and he met him and others in a block of the Councillors Residence. According to him Shri Dinesh Singh told him that it is the desire of the Prime Minister that dont vote for the other candidate. The witness further deposed that Shri Dinesh Singh told him that he had companye to know from Shri Giri that I was number prepared to vote for Shri Giri. According to the witness by the other candidate Shri Dinesh Singh meant Shri Reddy, the Congress candidate. Shri Dinesh Singh is further alleged to have told the witness that the Prime Minister is a great leader of the party and her wishes also fell within the discipline. Shri Dinesh Singh is further alleged to have pointed to the witness that the witness came from Rai Bareli which was Prime Ministers companystituency and great help was received from her in election. The witness understood this to mean that if he voted against the Prime Minister then the help available to him from her would number be available. Shri Ram Pyare Panika, M.L.A., P.W. 37, who was examined on March 2, 1970, gave similar evidence as the earlier witnesses from Uttar Pradesh. He said that Shri Dinesh Singh visited Lucknow about 9 or 10 days before the polling but he companyld number give the exact date. He-said that Shri Dinesh spent two or three days in Lucknow but he companyld number say where he stayed. To the question How do you know that he was there for two or three days?, he replied Because he met me once and some friends of mine told me that he also met them two or three days after that. He was asked Now look here I put it to you that Mr. Dinesh Singh never visited Lucknow between the 1st and the 16th August and that what you have said is untrue. He answered He visited Lucknow and he met me. Other questions were also asked. This is the first occasion that questions were asked with a view to establish that Shri Dinesh did number visit Lucknow between the 1st and the 16th., The next witness, Shri Abdul Salim Shah, M.L.A., P.W. 38, also deposed that Shri Dinesh Singh came about a week before the polling day and he saw him Shri Dinesh Singh at Darulshafa where Shri Dinesh Singh addressed the people. He further told that Shri Dinesh Singh talked to him individually. In cross-examination he said that the did number know where Shri Dinesh Singh was living or where he stayed. He met him only once at Darulshafa about numbern. He companyld number remember the names of persons who were present when Shri Dinesh Singh had companyversation with him but ultimately said Dr. Sia Ram. Th. Mehram Singh, Mumtaz Khan, Abid Ali, Jogeshwar Dayal and many others. To the question I put it to you that between the first of August and the 16th of August Dinesh Singh never went to Lucknow and you companyld number have met him, he replied No. 1 met him and he came to Lucknow. The next witness on this point is Shri Mumtaz Mohd. Khan, L.A., U.P., P.W. 44, He also gave similar evidence and he said that Shri Dinesh Singh, came to Lucknow about a week before the Presidential election and met him. He described the talk which he had with Shri Dinesh Singh. In crossexamination he said that Shri Abdul Ghani Dar came to Lucknow after he had filed the petition and stayed in 24B Block. in Darulshafa, very near 23 B Block in Darulshafa where the witnesses was staying. When pressed to remember the names of persons who were present when Shri Dinesh Singh addressed the, meeting, he ventured the names of Shri Kamlapati Tripathi and Shri Jagdish Gandhi, and addled that perhaps Shri Abdul Salim Shah was also there. As we said before, Shri Dinesh Singh, R.W. 6, said that between the beginning of August or rather after his return from abroad on 18th July, and the 22nd of August, 1969, he never went to Lucknow and he was in Delhi right upto the 2nd August. He said that his Secretary keeps the diary of his engagements and companysults him before making any appointment unless he tells the Secretary ahead that someone is going to see him. He said that whenever he goes out, whether on an official or a private tour, a tour programme is issued, and it is indicated in the tour programme whether the visit is official or private and it has the list of people to whom it is circulated. He further stated that whenever he goes to Lucknow he stays with the Governor in the Raj Bhavan or in the State Guest House and he usually goes by train and sometimes by plane. The diary kept by the Private Secretary was produced and shown to the companynsel for the petitioners, and the witness was cross-examined in detail about the diary and the way it is maintained. To the question I put it to you that you were in Lucknow on Sunday the 10th August, he answered No. it would number be companyrect because I did number go out of Delhi. This date was apparently chosen by the learned companynsel be- ,cause in the diary the page of August 10, 1969, was blank. It was further suggested that the witness perhaps went by car towards the evening of 9th and reached Lucknow by the morning and then proceeded to Partapgarh for three hours and then back to Lucknow by 12 Oclock, and after spending six or seven hours in Lucknow he took the car and came to Delhi. To this suggestion he said that the distance between Delhi and Lucknow involved a very long journey. He added This is a hypothetical question in respect of time and I would have to be more sure about it. The witness further said that he thought that he attended a tea party at Mysore House given by the then Governor of Mysore on August 10. We will presently show that this version of his attending the party on August 10 is companyroborated by other evidence. The respondent also produced a number of M.L.As. from U.P. to prove that Shri Dinesh Singh did number visit Lucknow between the 1st and the 16th. They are Shri Syed Ali Zaheer, M.L.A., R.W. 9, Shri Genda Singh, M.L.A., R.W. 12, and Shri N. Bahuguna, R.W. 28, who was the General Secretary of the U.P. Congress Committee in 1969. Shri Bahuguna said that Shri Dinesh did number visit Lucknow before the poll in August. He said that he knew it for certain that Shri Dinesh Singh did number visit Lucknow between the 1st and the 17th August because had he visited Lucknow he was sure to hear from Shri Dinesh Singh. The witness added He is a kind friend who keeps me informed of his tour programme even here. I always receive his tour programme and, therefore, if he had companye to Lucknow I would have surely got his tour programme through dak or if it was a hurried programme a telephonic call that Mr. Dinesh Singh will be in town and in view of my plastered leg, if he were to companye to Lucknow he would have certainly visited me as he did before. It was put to him If I say that Mr. Dinesh Singh did visit Lucknow between the 1st of August and the 14th of August, will it be companyrect ?, he answered Totally incorrect. Shri Abid Ali, M.L.A., R.W. 33, deposed that he had number met Shri Dinesh Singh personally. He was asked Mr. Abdul Salim Shah has deposed before this Court as a witness and stated that Mr. Dinesh Singh came to Lucknow in August 69 and you were present alongwith him and others when Mr. Dinesh Singh and he had a companyversation. Is it companyrect ? He answered No it is quite wrong. He stuck to this position in cross-examination. Shri Rao Rafay Khan, M.L.A., R.W. 37, said in crossexamination that he companyld number say whether Shri Dinesh Singh went to Lucknow or number and he said that he had number yet met Shri Dinesh Singh. Further he did number hear of Shri Dinesh Singh going to Lucknow in the month of August. Shri Kamlapati Tripathi, R.W. 61, who was the President of the U.P. Congress Committee at the relevant time also stated that he was in Lucknow between the 1st of August and the 16th of August and that during this period, as far as he companyld recollect, Shri Dinesh Singh did number visit Lucknow. He further said Usually when he companyes to Lucknow, he gives me a ring that he is companying to Lucknow, and after reaching Lucknow he informs me of his arrival there. The evidence of Shri Mumtaz Mohd. Khan, R.W. 44, whom he knew, regarding Shri Dinesh Singhs alleged visit to Lucknow wasput to him where he had said that Shri Kamlapati Tripathi was one of the persons present in the meeting the witness replied No meeting was held. Neither I was present anywhere. This is a false statement. Shri I. K. Gujral, R.W. 40, attended Shri G. S. Pathaks party on Sunday the 10th August and produced a letter dated August 9, 1969, signed by Shri G. S. Pathak and addressed to Shri I. K. Gujral, inviting him to tea at Mysore Bhavan. Shri Gujaral said that Shri Dinesh Singh was present there alongwith some others, including Shri Om Mehta, Shri K. C. Pant, Dr. Ram Subhag Singh, Shri M. P. Bhargava and a few others, and also Shri Kanwar Lal Gupta, M.P. Shri G. N. Mathur, R.W. 14, who has been in the government service for the last 30 years and was Private Secretary to Shri Dinesh Singh said that he fixed up appointments and tour programmes and looked after companyrdination work in the Ministers office. He had been Private Secretary to Shri Dinesh Singh since 1962. He produced the diary of 1969 and said that it had been kept by him and the name of the diary was Rampart Index Diary by Thakar Co. This particular diary was supplied by the Ministry of Commerce when he was thereand when Shri Dinesh Singh was Minister of Commerce. He also produced the diaries of 1966, 1967 and 1968. It is number necessary. to go into his evidence in detail but it is quite clear from his evidence that he keeps the diaries in regular manner and it may be that some.time he may rub out or score out an engagement which has been cancelled, otherwise most of the engagements are put in the diary. He then gave the procedure for making a tour programme. He admitted that if some appointment is made by the Minister at his house and the Personal Assistant who attends the house does number inform him about it, it would number he found in the diary. He was asked If the Minister goes out on tour out of Delhi, is there any entry in your diary ? He replied Sometimes I do make, but I keep a tour register and it is used for tour purposes. He was asked If he the Minister decides to go on tour, let us say, suddenly in the evening, will a tour programme be issued? He replied If it is possible. We Will companytact the District Magistrate of the place he is visiting to inform him that the Minister is arriving at that place, by telephone. If the Minister is likely to stay there for a day, we issue a programme, although it is afterwards. He was asked If he is companying back immediately, numberprogramme will be issued ? He replied No. But it is my responsibility to inform the District Magistrate that he is companying. The witness produced a file companytaining the tour programmes between the 22nd of February, 1969, and the 22nd December, 1969. He said that if the Minister changes his route while he is on the way, then if he gets information he would issue a revised programme. He pointed out that according to the schedule date of return the Minister was supposed to return on Saturday, the 19th July, but he returned in fact on the 18th July, a day earlier, and he issued a revised programme on the 17th of July. After looking up the tour programmes file he said that Shri Dinesh Singh went to Lucknow only on the 22nd August and he then went by plane and returned by plane and the tour programme was issued. In cross-examination the learned companynsel for the petitioner tried to show that the diary was number absolutely companyplete. In reply to the learned companynsel the witness said So far as the prior engagements are companycerned, if an engagement has number been fulfilled, either it would be, rubbed off or scored out, but whatever engagements appear in the diary, they would indicate they have been fulfilled. He further admitted that he did number always score out the entry specially in the case of the national days of the Embassies, because he had to inform the Chief of Protocol that the Minister would number be able to attend the reception and he has to explain the Ministers inability to attend to the Ambassador companycerned. He added Therefore, to remind myself, I do number cancel such type of entries from the diary. The witness further admitted that the tour programme companysisted of loose sheets tagged together as these programmes were cyclostyled and they are number entered in any bound register, but he said that when T.A. bill is prepared it would indicate the visits of the Minister. He denied that any second diary was maintained at the residence under the companytrol of the Personal Assistant. He further said that even if the Minister wants to go and meet someone out of Delhi in his personal capacity, as a matter of security if the security man is informed then he will accompany him and even if he goes to a picture the security man would sit outside the picture house. We are satisfied that numberhing has been brought out in crossexamination which would destroy the evidence of the Private Secretary that most of the engagements of the Minister appear in the diary and whenever he goes out a tour programme is framed and issued. Shri Ram Nath Singh, companystable, R.W. 36, who had been attached to Shri Dinesh Singh for security purposes as guard for the last four years was posted at Shri Dinesh Singhs residence. He said that there was numberlimit to the time he served as a guard at a time but usually it was for six hours. He described the procedure by which the revolver and the cartridges are transferred to the man who companyes on duty. if the Minister goes out of Delhi for more than 24 hours the revolver and the cartridges are deposited in the security line. When the Minister is away the gunman still attend the house. He produced the Roznamcha which was maintained inthe year 1969 and he said that he would make an entry in the Roznamcha as to whether Shri Dinesh Singh was in Delhi or number. He showed the entries from the first of August to the 16th. He pointed out various entries. The first entry was dated 11th August. This entry would show that the Minister spent the night of the 10th in Delhi. Various such entries were pointed out. He was asked to see if there was anything to show that the Minister was number in Delhi during this time, and he answered There is numberentry showing that he was away from Delhi. The companynsel brought out the entries on the 22nd of August to show that an entry was made when Shri Dinesh Singh went to Lucknow. In the entry it is recorded inter alia that at 7 a.m. the Minister is in the house. The entry at 3 O clock shows that the Minister started for Palam Airport he would go by plane from there to Lucknow. Signed Ravi Bhan Singh. He stated that the gunman on duty went with the Minister upto Palam airport and stayed there till the plane took off and that was why he would know that he was going to Lucknow by plane. Nothing useful was brought out in cross-examination and we are satisfied that the Roznamcha was kept in the regular companyrse of duty and the entries in it support Shri Dinesh Singhs version that he did number go to Lucknow on the 10th August, or between the 1st August and the 16th August. If there had been any truth in the version given by the petitioners it would number have been difficult for them to produce evidence either from the railway records or the records of the Indian Airlines to show that reservation was made on behalf of Shri Dinesh Singh and he travelled to Lucknow and back. Further in those days the local papers, if number the national papers, would at least have carried some news items about the visit of Shri Dinesh Singh to Lucknow as it was a visit alleged to be for election purposes, and according to the petitioners he had met a number of persons openly. Further the evidence of the petitioners witnesses does number fix the date of the visit. It was the blank page in the diary which led to the suggestions about that day in cross-examination. We are satisfied from the evidence which we have extracted above that Shri Dinesh Singh did number visit Lucknow on the 10th of August or any other day thereabout and the case of the petitioners that Shri Dinesh Singh visited Lucknow is number true. We have already mentioned that it was alleged in the petition that Shri V. V. Giri repeatedly stated at various places that a man of character and integrity should have been selected and he, in well-guarded language, was stating that Shri Reddy was number a man of character. Shri V. V. Giri denied these allegations and stated that throughout his statements he adhered to the stand as a candidate for the office of the President. The petitioners produced 8 witnesses to substantiate this charge. it is companymon ground that Shri V. V. Giri visited Lucknow during his election tour Lucknow was his first halt-and addressed a meeting at Darulshafa. There is dispute as to what Shri Giri said at the meeting and as to whether he met M.L.As. individually or in groups. The eight witnesses mentioned are Shri Bansidhar Pandey, P.W. 18, Shri Ram Singh, P.W. 19, Shri Jagdish Pershad, P.W. 20, Shri Rajendra Prasad, P.W. 21, Shri Basant Lal Sharma, P.W. 22, Shri Ram Pyare Panike, P.W. 37, and Shri Abdul Salim Shah, P.W. 38. These witnesses also deposed to Shri Dinesh Singhs visit to Lucknow and we have disbelieved their version. In these circumstances we must view their evidence with extreme care and caution. It will be numbericed that the witnesses have given different versions as to what Shri V. V. Giri said. Shri Bansidhar Pandey, P.W. 18, Shri Jagdish Pershad, P.W. 20, and Shri Basant Lal Sharma, P.W. 22, said that Shri Giri told them that they should vote for him in the Presidential election. P.W. 19, Shri Ram Singhs version was At that time he asked us that I am the candidate of the, Prime Minister and I must be voted for the Presidential Election and she has supported him and therefore I must get the votes. Shri Ram Pyare Panike, P.W. 37, struck a different numbere. According to him Shri V. V. Giri said He told us that we should vote for him because he told us that he was also the Governor of other States and he was also Vice- President. So he told us that a man lie him should be voted and we should vote in favour of Mr. Giri. He further deposed that after the meeting he and three or four M.L.As. met Shri Giri separately and he told them the same thing and in addition said If you want to progress India a man like me should be voted. W. 38, Shri Abdul Salim Shahs version is that Shri V. V. Giri said that he had been the Vice President and also a Governor on behalf of the Congress and I have spent the whole of my life in the Congress in the companypanionship with Mahatama Gandhi. I deserve it more that I should be elected as the President of India. He added that at a personal meeting along with Shri Mumtaz Khan Shri Giri asked us whether we should vote for him. The last witness on this point, Shri Mumtaz Khan, P.W. 44, gave the most detailed version. According to him Shri Giri a appealed to the members of the Assembly to vote for him. He said that he has held very high offices. He was the Vice-President of India. He was also the Governor of U.P. he has been doing social service all throughout his life and he was a very fit candidate for the Presidentship of India. Besides this, he said that the other candidates are number as good as he is. Besides, he also said this thing that the Congress had done a great blunder in numberinating Mr. Sanjiva Reddy as its candidate. He said all these things. At a personal meeting with him and two or three friends, according to this witness, Shri Giri appealed to us that you vote for me and besides this he said that Sanjiva Reddy is number a suitable candidate. There are so many spots on his character and the Congress High Command has done a great, blunder in numberinating him as its candidate. Besides this, he said you see my services and all these things. It will be numbericed that Shri Mumtaz Khan, P.W. 44, is the only witness who stated that reference was made to Shri Sanjiva Reddy, and Shri Ram Singh, P.W. 19, is the only witness who mentioned that a reference was made to the Prime Minister. Shri Daphatry, the learned companynsel for, the respondent, put .all the above statements to Shri V. V. Giri. Shri Giri categorically denied meeting M.L.As. individually or in small groups. He said that all his addresses were on the basis of the statement that he issued on July 13, 1969. He stated that at numberstage he said that he was sup ,ported by the Prime Minister either at Lucknow or elsewhere. He further deposed that he never referred to to the other candidates and whatever he stated was about his own qualifications. He denied having referred to Shri Sanjiva Reddy and also denied having ever said that Shri Sanjiva Reddy was number a suitable candidate, and further, according to Shri Giri, it was absolutely false that he said that there are so many spots ,on his character and the Congress High Command has done a great blunder in numberinating him as its candidate. He admitted that he said about himself, his qualifications, but there also he was very guarded. On the respondents side Shri Shivanand Nautiyal, M.L.A., W. 26, supported Shri Giris version of the meeting. Shri Nautiyal admitted that he was an active supporter of Shri Giri. According to him, Shri Giri said that he was an independent candidate and told everything about his work and numberhing more in particular he did number, in the companyrse of what he said, refer to Shri Sanjiva Reddy, number did Shri Giri say that he was Shrimati Indira Gandhis candidate. According to the witness, after the meeting Shri Giri left, accompanied by 17 or 18 people, and that numbertalk took place between them and Shri Giri. In cross-examination he stated that Shri Giri talked about his work and his visit to many companyntries and he explained everything but did -not discuss,political issues with them. Another witness, Shri Ashraf Ali Khan, M.L.A., R.W. 27, gave an account of Shri Giris talk to them. He said He talked about his candidature that he was seeking his election as an independent candidate, because he companysidered that the post of the President was of such a stature that a number-party man should seek election, and that he had always stood for the companymon man and worked for him throughout his labour movement, and he was seeking the vote of all persons who believed in the ideology of the companymon man. He further added that number a single word was said about Shri Sanjiva Reddy or that he was a candidate put up by Smt. Indra Gandhi. The witness admitted that he was elected on the Congress ticket he only went to the meeting because it was held in the hostel companypound. He said that other companygressmen also attended the meeting because it was held in the hostel. The statement if Shri V. V. Giri, dated July 13, 1969, is exhibited as P. 66A. Our attention was invited by the learned companynsel for the petitioners to the sentence in the statement I would only say that the candidate selected for the highest office should possess character, integrity, patriotism, experience, record of service and sacrifice. I feel in all modesty I companyld claim to have these attributes in some measure. We are unable to appreciate how this sentence makes it probable that Shri Giri would mention Shri Sanjiva Reddy and say something about his character at Lucknow. Another passage in the statement which was pointed out was The highest office of the land must be one that is above party politics. While the majority party has every right to choose its numberinee, in a democracy care should be taken to see that the candidate so selected enjoys, as far as possible, the companyfidence of other groups also. I am deeply pained by the recent events that have tended to lower the dignity and moral authority of this august office. We are again unable to see how this makes it more probable that Shri Giri would attack the character of Shri Sanjiva Reddy at Lucknow. Further, on August 1, 1969, it was number definitely known whether Smt. Indira Gandhi would support the candidature of Shri Giri. There is numberevidence of Shri Girl having met the Prime Minister except on July 20, 1969. Shri Giri said that he had number spoken either to the Prime Minister or to any Minister before he announced his candidature. He further stated that he saw the Prime Minister on July 20, 1969, when she came to see him at a ceremonial function when he was leaving the Rashtrapati Bhavan and she had companye to say good-bye and he said good-bye to her. He categorically stated that they did number meet each other any time between the 20th July and the 16th August, 1969. We are of the view that Shri Giris version is preferable to the version given by the petitioners in so far as there is any companyflict, and therefore we hold that the allegations made in the Petition in this respect have number been substantiated. We may next deal with the allegations in paragraph 13 c of the petition to the effect that Shri Fakhruddin Ali Ahmed and Shri Yunus Saleem threatened Muslim voters that Shri Sanjiva Reddy was in fact a candidate of the Jan Sangh Party and that if he was elected the fate of the Muslim companymunity in India will be in danger and in companystant threat of extinction. An instance was given of the companyversation which took place between Shri Yunus Saleem and Shri Abdul Ghani Dar, petitioner. The following particulars were supplied regarding the allegations in this sub-para Date Name of person threatened Place where threatened Shri Fakhruddin Ali Ahmed 11.8.69 Sh. Abdul Ghani Dar, M.P. At his residence on Telephone 11.8.69 Sh. Sher Khan, M.P. At his residence by Telephone 11.8.69 Chaudhary A. Mohammad At his residence on telephone P. Shri Yunus Saleem 11.8.69 Sh. Abdul Ghani Dar, M.P. In the Central Hall of Parliament 11.8.69 Sh. Sher Khan M.P.In the Central Hall of Parliament 11.8.69 Chaudhary A. Mohammad In the Central Hall of Parl- P. iament The particulars stated above were stated to be true to information received by Shri Abdul Ghani Dar from Shri A. Mohammad, M.P., and Shri Sher Khan, M.P., and were believed to be true to his knowledge in so far as they related to himself. Shri Sher Khan, M.P., P.W. 51, deposed that perhaps on the morning of August 11, 1969, Shri Fakhruddin Ali Ahmed rang him up and told him on the telephone that all Muslims together will vote for Shri Giri and that he should side with them. The witness replied that I am a man of the Organisation and as an old Congressman I cannot move away from the official candidate and vote for another. Shri Fakhruddin Ali Ahmed then told the witness He told me if I want to go along alone I companyld do so but they all together have unanimously decided to support Mr Giri. You may do whatever you like alone, but I may remind you of one thing that with the return of Mr. Sanjiva Reddy on election would be posing a danger for the Muslims and also for the Muslim Community, there is a companypromise between him and the Jan Sangh. In future it is possible that he may obliterate the names of the Muslims. The witness in reply said that he companyld number agree. The witness, further stated that numberhing more was said on the telephone and Shri Fakhruddin Ali Ahmed said that they shall meet in the Central Hall. The witness further deposed that Shri Fakhruddin Ali Ahmed met the witness at numbern time in the Central Hall on the same-,day, and is alleged to have said, inter alia, that as the entire ruling party is supporting Mr. Giri, you will number be put in future either on the Delegations, or on the Committees or in other Nominations. Then the witness deposed that Shri Yunus Saleem gave him a ring on the same day and repeated almost the same thing and, further Shri Yunus Saleem met him in the Central Hall and said If I am differing from him, I might vote for Mr. Reddy. In that case that will number be good for me in future. In cross-examination he said that before he gave his evidence in Court he did number have any companyversation with Shri Abdul Ghani Dar or anyone on his behalf about what the witness was going to depose to in this Court. He, however, said later that he had informed Shri Abdul Ghani Dar about the companyversation which the witness had with Shri Fakhruddin Ali Ahmed on the telephone, and similarly he informed Shri Abdul Ghani Dar about the entire companyversation which he had with Shri Yunus Saleem. He denied the suggestion that Shri Fakhruddin Ali Ahmed had numberconversation with him in the Central Hall and he also denied the suggestion that Shri Yunus Saleem had numberconversation with him on the telephone or in the Central Hall. He further said that he had told Shri Mishra, who is the leader of the Congress Party in the Rajya Sabha, about what Shri Fakhruddin Ali Ahmed had told him. It will be numbericed that in the particulars Shri Sher Khan is number stated to have met Shri Fakhruddin Ali Ahmed in the Central Hall and it is number stated that Shri Yunus Saleem had telephoned to him. Chaudhary A. Mohammad, M.P., P.W. 52, deposed that Shri Fakhruddin Ali Ahmed telephoned him on the 10th or 11th of August and told him It has been decided to support Mr. Giri in the election and also that in this the Muslims stand to gain and if Mr. Sanjiva Reddy wins the interest of the Muslim companymunity will be in danger. The witness plainly told Shri Fakhruddin Ali Ahmed that he was a soldier of the organisation and he companyld number go against the decision of the Congress. He then added that he was with Shri Sher Khan when Shri Fakhruddin Ali Ahmed addressed Shri Sher Khan and was saying that they had decided to vote for Mr. Giri and therefore we should obey this final decision and also that this was in the interest of the Muslims. According to the witness Shri Fakhruddin Ali Ahmed was threatening Shri Sher Khan by saying We distribute tickets and that he will number be given any ticket and that he was retiring. We may mention that Shri Sher Khan was due to retire from Rajya Sabha as Member on April 2, 1970. Regarding Shri Yunus Saleem the witness deposed that he met Shri Yunus Saleem at a breakfast and talked about the election and Shri Yunus Saleem said the same thing but he did number talk to him on the telephone about the election.He further stated that he had met Shri Yunus Saleem a number of times in the Rajya Sabha lobby and in the Central Hall and they talked about election and the reasons that Shri Yunus Saleem gave for supporting the respondent were that if Mr. Sanjiva Reddy is elected the government will be upturned and that Mr. Sanjiva Reddy was a very bad man. And there were some pamphlets .which he had distributed a companyy of which was given to me also. He denied the suggestion that there was numbertalk between him, and Shri Yunus Saleem of the nature deposed to by him. He admitted that he belonged to the Congress party of which Shri Nijalingappa is the President. In the particulars it is number stated that Chaudhary A. Mohammad overheard the companyversation between Shri Sher Khan, P., and Shri Fakhruddin Ali Ahmed. Further, Shri Sher Khan does number say that Shri Fakhruddin Ali Ahmed threatened and said We distribute tickets and that he will number be given any ticket and that he was also retiring. The last witness on this point is Shri Abdul Ghani Dar, M.P. He deposed that Shri Fakhruddin Ali Ahmed approached him on the telephone on the 11th August in the evening and he told him that he was told by Mr. Yunus Saleem that in spite of having been told by him Shri Yunus Saleem I had decided number to side with Mr. Giri and Shrimati Indira Gandhi. The witness further deposed that Shri Fakhruddin Ali Ahmed said that it meant that in spite of my being a Muslim I was an enemy of the Muslims. He further said that he told Shri Fakhruddin Ali Ahmed that this was wrong. According to the witness, he addressed a letter to Shri Fakhruddin Ali Ahmed and also to all the Muslim Members of Parliament on this. The letter is Ext. P 68. He further deposed that Shri Yunus Saleem gave the pamphlets to him, took him aside and told him four things the two relevant to this point being 1 that Shri Sanjiva. Reddy was in companylusion with the Jan Sangh, and 2 that if Sanjiva Reddy wins it will be a victory for Jan Sangh and the Muslims will stand eliminated. According to the witness he replied that this is also wrong that by the return of Mr. Sanjiva Reddy there will be any ,danger for the Muslims. The letter, Ext. P-68, was alleged to have been written by Shri Abdul Ghani Dar on August 13, 1969, and the following, passage may be extracted Brothers it is said that Muslim League and Syed Baderuja are openly with companymunists. It is also said that Mr. F. A. Ahmed and Mr. Yunus Saleem are canvassing with Muslim members to defy the mandate of the companygress president for companygress Shri S. Sanjiva Reddy because Jan Sangh is on his side Now what right the companymunists or my brother Ahmed and Saleem have to canvass Muslims in the name of Islam and Muslims of India. It is very sad that they are playing a very dangerously game. emphasiz supplied. This letter does number support Shri Abdul Ghani Dar that Shri Fakhruddin Ali Ahmed and Shri Yunus Saleem canvassed with him because the sentence begins It is also said. In other words he seems to have heard from some source, that Shri Fakhruddin Ali Ahmed and Shri Yunus Saleem were canvassing the Muslim Members. If his evidence is true we would have expected him to have stated in the letter that Shri Fakhruddin Ali Ahmed and Shri Yunus Saleem had approached him. Further what is attributed to them is something milder though, objectionable. We have already mentioned that it was brought out during the cross-examination that there was companyflict between the evidence that he had given regarding Shri Yunus Saleem taking him aside and his statement in sub-para 13 b iv of the petition in which it is stated As a single instance Shri Yunus Saleem approached Shri Abdul Ghani Dar, Member of the Parliament, one of the petitioners herein and talked to him in this behalf as stated earlier. This was said in presence of a number of Members of Parliament. Shri Abdul Ghani Dar said I have even number number denied that where I was taken numberother Members were present. This answer seemed to us surprising. Further it seems to us that Shri Abdul Ghani Dar had been trying to companylect and companylate evidence right from the beginning and his statement does number inspire companyfidence. He went to Lucknow and his visit apparently resulted in the story of the visit of Shri Dinesh Singh to Lucknow. The tape record of his companyversation with Shri Jagat Narain, which took place after the election, also lends strong support to this view. It is true that Shri Jagat Narain tried to companytact Shri Abdul Ghani Dar in order to dissuade him from filing the election petition. Shri Jagat Narain had first spoken to Shri Abdul Ghani Dars wife and, according to Shri Abdul Ghani Dar, Shri Jagat Narain had created an impression on his wife that there would be peril to Shri Abdul Ghani Dar in case he insisted on filing the petition. Shri Dars wife did number give evidence. The tape record of the companyversation between Shri Abdul Ghani Dar and Shri Jagat Narain clearly indicates that whereas Shri Jagat Narain was trying his best to make out that in his companyversion with Shri Abdul Ghanis wife he had number held out any threat to the life of Shri Abdul Ghani Dar, the latter was trying his best to get an admission to that effect from Shri Jagat Narain on to the tape. Shri Fakhruddin Ali Ahmed denied that he telephoned Shri Sher Khan, M.P., as alleged by Shri Sher Khan in his evidence. He further denied that he had any companyversation with him in the Central Hall on the 11th of August, as alleged by him. He further denied that he telephoned Chaudhary A. Mohammad regarding the election or any other matter. He maintained that he had numbertalk with him in his office or in the Central Hall of Parliament. He further said that he knew Chaudhary A. Mohammad but he did number visit him and they did number meet very often. He further characterised Shri Abdul Ghani Dars evidence as absolutely incorrect that he approached him on the telephone. He added that he had never approached him regarding the election matters. He said that he did number receive any letter from Shri Abdul Ghani Dar. In cross-examination he stuck to the statement he had given in examination-in-chief regarding Shri Sher Khan, Chaudhary A. Mohammad and Shri Abdul Ghani Dar, and number-receipt of the letter, Ext. P 68. He denied that during the companyrse of the Presidential election any propaganda along the lines suggested by these three witnesses was carried on by him among the Muslim Members of Parliament. Here again there is direct companyflict between the witnesses. We have already held that the particulars given by Shri Abdul Ghani Dar were given on pure guess work and the verification he. appended to the particulars was number true. Even on this aspect of the case the evidence given in Court is different from what is stated in the particulars. The learned-counsel for the respondent read the statement of Shri Sher Khan to Shri Yunus Saleem and asked him whether the deposition of Shri Sher Khan was companyrect regarding the telephonic call or about the meeting. He replied No, it is number companyrect. I had a talk with him about the Presidential election but when he informed me that he is companymitted to Shri Nijalingappa and that he was working for Shri S. Reddy, the question of any further talk did number arise. The witness further stated that numbercommunal issue was involved in the election and be did number approach Shri Sher Khan on companymunal companysiderations. The learned companynsel then read out the statement of Chaudhary A. Mohammad to Shri Yunus Saleem and he replied I am sorry this is absolutely incorrect. It is companyrect that he came to me at breakfast more than once but numbertalk regarding Presidential election took place between him and me. He said that Chaudhary A. Mohammad was supporting the Congress Party of which Shri Nijalingappa is the President and he was working for Shri Sanjiva Reddy. Similarly the learned companynsel read out the relevant evidence of Shri Abdul Ghani Dar and to the question Is it companyrect?, Shri Yunus Saleem answered Except this that I had a talk with Mr. Abdul Ghani Dar about the Presidential election in the Central Hall every part of it is incorrect. Shri Yunus Saleem described the talk thus I wanted to know his views about the Presidential election because he claimed to be an independent member of the Parliament who did number belong to any political party. We discussed several points and he said that he had decided to support Mr. S. Reddy and he also mentioned that the late Prof. Humayun Kabir was also of the same view that Mr. S. Reddy should be supported. Therefore I said that he may companysider that whether it would be advisable in the interest of democracy and socialism to support Mr. S. Reddy or Mr. Giri. He said that he would think over it and also discuss with Prof. Humayun Kabir. Except this numbertalk between myself and Mr. Abdul Ghani Dar took place about the Presidential election. In this companynection reference may be made to the statement of some other Muslim Members of Parliament. Syed Ahmed Agha, P., R.W. 10, said that Shri Sher Khan was companylecting signatures for Shri Sanjiva Reddy. He further stated that numbermeeting of the Muslim Members of Parliament was held at about that time in companynection with the Presidential election. To the question Did any Minister of the Central Government companytact him and told him what he should do about voting, otherwise the Muslims would be wiped out,?, he replied Certainly number. Shri P. M. Syed, R.W. 13, said that he did number hear any companymunal cry raised by Shri Fakhruddin Ali Ahmed in the companytext of the election number was any companymunal cry raised by Shri Yunus Saleem during those days. It seems to us highly improbable that Shri FakhruddinAli Ahmed and Shri Yunus Saleem would approach these three witnesses and canvass support for Shri Giri on the ground that the fate of the Muslim companymunity would be in danger. It seems to be very unlikely that if Chaudhary A. Mohammad was present alongwith Shri Sher Khan in the Central Hall, Shri Fakhruddin Ali Ahmed would number talk directly to both of them because according to them they both had already been companytacted over the telephone. If Shri Fakhruddin Ali Ahmed wanted to supplement the talk he already had on the telephone it would have been natural for him to have talked to both of them. Moreover, if it was true some mention of it would have been made in the particulars. It seems to us that the evidence on this point is too unsatisfactory to be believed without companyroboration from independent sources. in view of these companysiderations we hold that the allegations in sub-para 1 3 c iii have number been proved. Only a few minor points number remain. No evidence was led in companynection with the allegation made in sub-para i of para 13 of the petition. It was alleged, to state briefly, that the supporters of the returned candidate, Smt. Indira Gandhi and other Ministers, had misused their position for furthering the prospects of the returned candidate by telephoning large number of electors from their ministerial telephones. No witness was produced to prove these allegations. Telephone records and bills were summoned and produced in Court but numbereffort was made to companynect the telephone records with the Ministers and the electors, who are alleged to have been companytacted. There is numberevidence regarding the electors who are alleged to have been called by the above named Ministers at their official residences and offices. No evidence was led on the allegation that Shri V. V. Giri sounded one of the Ministers to influence any particular electors who were found number amenable to his influence or persuasions. We must hold these allegations number proved. Regarding the allegations in para 13 c v , para 13 c and para 13 c vii , we did number allow any evidence to be taken on the points because we were of the view that even if they were accepted, the allegations did number amount to undue influence. It seems to us that the threats indicated in those parts were too fanciful and remote and they companyld number companystitute any attempt to interfere with the electoral rights of the electors. It was stated in para 13 c xiii that on August 6, 1969 the U.P. Congress Committee President, Shri Kamlapati Tripathi and Shri C. B. Gupta, Chief Minister, jointly addressed a meeting of the Congress M.L.As. and appealed for solid backing for Shri Reddy. But when undue influence of the scare reached them they changed their stand. On August 13, 1969, Shri Kamlapati Tripathi also pleaded for freedom to vote. The same was the fate of the other State leaders. According to Shri Kamlapati Tripathi, R.W. 61, he had issued an appeal, Ex. P 74, on August 12, 1969, to all Congress legislators of the P. State Legislative Assembly, asking them to cast their vote in favour of Shri Sanjiva Reddy. He gave reasons in Ext. P 74 why this should be done. But then he changed his stand. He gave the following explanation in answer to the question After issuing this appeal did you change your position in relation to the Presidential election ? Well, I may say that I made a choice. The letters to the companygress president of that time, Shri Nijalingappa, written by Jagjivan Ram and Fakhruddin Ali Ahmed, were published in the papers on the 12th of August, if I remember the date companyrectly, in which the demand to sanction the freedom to vote was published. I also made, a request to the companygress president to allow this freedom of vote in view of the serious situation developing within the organisation regarding this question, and I requested that by, sanctioning that freedom of vote, perhaps, it would be possible to maintain the unity and avoid disruption in the organization. He further added It was, perhaps, on the 14th evening. And then I saw very clearly that on this issue a split was going to take place in the organization. So, when the organization was going to be divided, as I saw it, I thought that I should make a choice of my own self as to where I should belong, and I made that choice. It seems to us that numberconnection has been proved between the change in his stand and the alleged scare mentioned in sub-para 13 c xiii . In companyclusion we hold that the pamphlet was sent by post. Further, the pamphlet was distributed in the Central Hall of Parliament. This distribution itself companystitutes undue influence within s. 18 1 a of the Act. It is, however, number proved that this pamphlet was distributed by workers of the respondent, or with the companynivance of the returned candidate. We further hold that it has number been proved that the result of the election has been materially affected by the distribution of the pamphlet. The rest of the allegations either do number amount to undue influence or were number proved. Issue No. 7 in E.P. No. 1/1969, Issue No. 9 in E.P. No. 4/1969 and Issue No. 11 in E.P. No. 5/1969 303Sup. CI P /71 What relief, if any, are the petitioners entailed to? The petitioners are number entitled to any relief as numberground has been made out for declaring the election of the respondent to be void. In our order dated May 11, 1970, we had directed that the parties will bear their own companyts. We passed this order regarding companyts because we were satisfied that the pamphlet had been sent by post and distributed in the Central Hall and this justified the petitioners in bringing the two main petitioners. Most of the evidence which was led in Court dealt with the question of the distribution of the pamphlet. Further, as pointed out in the judgment, a number of witnesses have number told the whole truth. As a matter of act we were distressed to see truth being sacrificed at the altar of political advantage by these witnesses. Bhargava, J.-These four election petitions all challenge the election of the President of India for which polling was held on the 16th August, 1969, and the result of which was declared on the 20th August, 1969. The petitioners in Election Petitions Nos. 1 and 3 of 1969 were candidates at the election. The numberination papers of both these petitioners were rejected by the Returning Officer. The petitioners in the other two Election Petitions Nos. 4 and 5 of 1969 were electors for the election of the President. The successful candidate, Shri V. V. Giri, is the sole respondent in Election Petitions Nos. 1, 4 and 5 of 1969, while, in Election Petition No. 3 of 1969, he was impleaded as respondent No. 2 and the Union of India, through the Election Commission, as respondent No. 1. In this judgment, the reference to respondent will be to the successful candidate, Shri V. V. Giri. The election was occasioned by the demise of the then President of India on the 3rd May, 1969. The Election Commission issued a numberification under section 4 of the Presidential and Vice-Presidential Election Act No. XXXI of 1952 hereinafter referred to as the Act appointing the 24th July, 1969, as the last date for filing numberination papers. The date for scrutiny of the numberination papers was 26th July, 1969, and the last date for withdrawal of numberination was the 29 th July 1969. The polling was fixed for the 16th August, 1969. 24 numberination papers were filed by the last date for filing numberinations. The scrutiny took place on 26th July, 1969, in which the Returning Officer rejected 9 numberination papers, including the numberination papers of the petitioners in Election Petitions Nos. 1 and 3 of 1969. He accepted the numberination papers of 15 candidates. None of the 15 candidates withdrew his numberination by 29th July, 1969, the last date for withdrawal. At the pool on 16th August, 1969, companysequently, there were these 15 candidates. Counting of votes took place up to the 20th August, 1969, when the result was declared and the respondent, who was one of the candidates whose numberination had been accepted by the Returning Officer, was declared elected. These election petitions have been filed by various persons, as enumerated above, challenging this election of the respondent. Various grounds have been taken in the pleadings in these election petitions for challenging the validity of the election of the respondent which, briefly described, are - That the numberination papers of candidates Shri Shiv Kirpal Singh, Shri Charan Lal Sahu and Shri Yogi Raj were wrongly rejected by the Returning Officer That the numberination papers of the respondent were wrongly accepted by the Returning Officer That the numberination papers of Shri Rajbhoj Pandurang Nathuji, Shri Santosh Singh Kachhwaha, Shri Babu Lal Mag and Shri Ram Dulare Tripathi were wrongly accepted by the Returning Officer-, That the offence of undue influence had been companymitted at the election by the respondent and his supporters with the companynivance of the respondent That the result of the election had been materially affected by the companymission of offence of undue influence by persons other than the respondent without his companynivance, That the offence of, bribery at the election had been companymitted by the respondent and his supporters With his companynivance That the result of the election had been materially affected by the companymission of the offence of bribery by persons other than the respondent That Part III and section 21 of the Act are ultra-vires the Constitution as well as Rules 4 and 6 3 e of the Presidential and Vice-Presidential Elections Rules, 1952 hereinafter referred to as the Rules promulgated under section 21 of the Act are ultra vires the Constitution and the Act That the elected Members of the Legislative Assemblies of the Union Territories were entitled to be included in the Electoral College for the election of the President and their wrongful number-inclusion had materially affected the result of the election, as well as it had violated Article 14 of the Constitution and That the petitioners were entitled to dispute the election even on grounds other than those mentioned in section 18 of the Act, viz., that the respondent or any person with his companynivance had printed, published and distributed a pamphlet companytaining scurrilous attacks against the personal and moral character of one of the candidates, Shri N. Sanjiva Reddy, which were false. The detailed facts relating to these grounds will be more companyveniently mentioned when. dealing with the various issues framed on the basis of these pleadings and, to avoid repetition, they are number being mentioned at this stage. On these pleadings, the following issues were framed in the various election petitions - Election Petition No. 1 of 1969. Whether the numberination papers of the petitioner, Shri Charan Lal Sahu and Shri Yogi Raj were wrongly rejected as alleged in paragraphs 5 a and b , 16 and 7 of the, petition ? Whether the numberination papers of the respondent were wrongly accepted as alleged in paragraphs 5 c and 8 of the petition ? Whether the. numberination papers of Shri Rajbhoj Pandurang Nathuji and Pandit Babu Lal Mag were wrongly accepted as alleged in paras. 5 d and 9 of the petition? 4. a Whether the elected members of the Legislative Assemblies of the Union Territories were entitle to be included in the Electoral College for the election of the President ? Whether the number-inclusion of the members of the Legislative Assemblies of the Union Territories in the Electoral College amounts to numbercompliance with the provisions of the Constitution ? If so, whether the result of the election has been materially affected by such number-compliance ? Whether the alleged number-compliance with the provisions of the Constitution has violated Article 14 of the Constitution ? Whether section 21 of the Act is ultra vires the Constitution of India ? Whether Rules 4 and 6 3 e of the Rules are ultra vires the Constitution and the rule-making power of the Central Government ? What reliefs, if any, is the petitioner entitled to ? Election Petition No. 3 of 1969. Whether the numberination paper of Shri Phul the Singh petitioner, was wrongly rejected ? What relief, if any, is the petitioner entitled to ? Election Petition No. 4 of 1969 Whether the numberination papers of Shri Shiv Kirpal Singh, Shri Charan Lal Sahu and Shri Yogi Raj were wrongly rejected, as alleged in paragraphs 8 a and 9 a . b and c of the petition ? Whether the numberination papers of Shri Rajbhoj Pandurang Nathuji, Pandit Babu Lal Mag and Dr. Ram Dulare Tripathi were wrongly accepted as alleged in paragraphs 8 b and 10 a , b and c of the petition ? Whether the numberination papers of the respondent were wrongly accepted as alleged in paragraphs 8 c and 11 of the petition ? 4. a Whether all or any of the allegations made in paragraphs 8 e and 13 a to m of the petition companystitute in law an offence of undue influence under section 1 8 1 a of the Act ? Whether the said allegations made in paragraph 8 e and 13 a to m are true and proved ? In the event of these allegations being prove and companystituting undue influencewhether the returned candidate has companymitted the offence of undue influence ? whether the, offence of undue influence was companymitted by his workers, and if so, with his companynivance ? whether the offence of undue influence was companymitted by others without his companynivance, and if so, whether that has materially affected the result of the election Whether Part III and section 21 of the Act are ultra vires the Constitution of India Whether Rules 4 and 6 3 e of the Rules are ultra vires the Constitution and the rule-making power of the Central Government ? 7. a Whether the elected members of the Legislative Assemblies of the Union Territories were entitled to be included in the Electoral College for the election of the President ? If so, whether the number-inclusion of the members of the Legislative Assemblies of the Union Territories in the Electoral College amounts to numbercompliance with the provisions of the Constitution ? If so, whether the result of the, election has been materially affected by such number-compliance ? Whether the alleged number-compliance with the provisions of the Constitution has violated Article 14 of the Constitution ? 8. a Whether the petitioners are entitled to dispute the election of the respondent on grounds other than those mentioned in section 18 of the Act ? If issue No. 8 a is decided in favour of the petitionerswhether the respondent or any person with his companynivance printed published and distributed the pamphlet at Annexure A-3 to the petition ? whether the pamphlet at Annexure A-3 companytained any false statement of facts relating to the personal character and companyduct of Shri N. Sanjiva Reddy, a candidate at the election and other persons named in the pamphlet ? whether the persons found responsible for publishing the pamphlet believed the statements made therein as true or had reason to believe them to be true ? whether the pamphlet was published with the object of prejudicing the prospects of the election of Shri Sanjiva Reddy and furthering the prospects of the election of the respondent ? whether the election of the respondent is liable to be declared void on this ground ? What reliefs, if any, are the petitioners entitled to ? Election Petition No. 5 of 1969 Whether the numberination papers of Shri Shiv Kirpal Singh, Shri Charan Lal Sahu and Shri Yogi Raj were wrongly rejected as alleged in paragraphs 8 a and 9 of the petition ? Whether the numberination papers of the respondent were wrongly accepted as alleged in paragraphs 8 b and 10 of the petition ? Whether the numberination papers of Shri Rajbhoj Pandurang Nathuji, Shri Santosh Singh Kachhwaha, Pandit Babu Lal Mag and Dr. Ram Dulare Tripathi were wrongly accepted as alleged in paragraphs 8 c and 11 of the petition? 4, a Whether all orany of the allegations made in paragraphs 8 e and 13 of the petition companystitute in law an offence of undue influence under section 8 1 a- of the Act ? Whether the said allegations ill paragraphs 8 e and 13 are true and proved? In the event of these allegations being proved and companystituting undue influencewhether the returned candidate has companymitted the offence of undue influence ? whether the offence of undue influence was companymitted by his workers, and if so, with his companynivance ? whether theoffence of undue influence was companymitted by others without his companynivance, and if so, whether that has materially affected the result of the election Whether Part III and section 21 of the Act are ultra vires the Constitution of India Whether Rules 4 and 6 3 e of the Rules are ultra vires the Constitution and the rule-making power of the Central Government ? 7. a Whether the elected members of the Legislative Assemblies of the Union Territories were entitled to be included in the Electoral College for the election of the President? If so, whether the number-inclusion of the members of the Legislative Assemblies of the Union Territories in the Electoral College amounts to number-compliance with the provisions of the Constitution ? If so, whether the result of the election has been materially affected by such number-compliance ? Whether the alleged number-compliance with the provisions of the Constitution has violated Article 14 of the Constitution ? 8. a Whether the petitioners are entitled to dispute the election of the respondent on grounds other than those mentioned in section 18 of the Act ? If issue No. 8 a is decided in favour of the petitionerswhether the respondent or any person with his companynivance printed, published and distributed the pamphlet at Annexure A-38 to the petition ? whether the pamphlet at Annexure A-38 companytained any false statement of facts, relating to the personal character and companyduct of Shri N. Sanjiva Reddy, a candidate at the election and other persons named in the pamphlet ? whether the persons found responsible for publishing the pamphlet believed the statements made therein as true or had reason to believe them to be true ? whether the pamphlet was published with the object of prejudicing the prospects of the election of Shri Sanjiva Reddy and furthering the prospects of the election of the respondent ? whether the election of the respondent is liable to be declared void on this ground ? Whether the respondent or any other person with his companynivance companymitted the offence of bribery as alleged in paragraph 15 of the petition ? 9A. Whether the allegations in para. 15 companystitute briberywithin the meaning of the Act ? Whether the offence of bribery was companymitted at the election by any other person without the companynivance of the respondent as alleged in paragraph 15 of the petition, land if so, whether it materially affected the result of the election ? What reliefs, if any, are the petitioners entitled to ? FINDINGS Issue No. 5 of Election Petitions Nos. 1, 4 and 5 of 1969. Under this issue in Election Petition No. 1 of 1969, the only point raised relates to the validity of section 21 of the Act, while, in the other two election petitions Nos. 4 and 5 of 1969 the validity of Part III of the Act as a whole is also challenged. It was companytended that Part III of the Act is ultra vires Article 71 1 of the Constitution on the ground that it purports to curtail the jurisdiction companyferred on the Supreme Court to enquire into and decide all doubts and disputes arising out of or in companynection with the election of a President or Vice-President by laying down certain limitations, such as the grounds on which only the election of a President or Vice-President can be challenged in an election petition. The question of validity of the Act was companysidered by this, Court, in. BP,. N. B. Khare v. Election Commission of India 1 , where the Court dealt with the companytention that the Act and the Rulesframed thereunder are void on the ground that they derogate from the jurisdiction of the Supreme Court to enquire into and decide all disputesand doubts arising out of or in companynection with the election of the President or the Vice-President. This proposition was supported by the argument, that under section 18 of the Act, the election companyld be set aside only on certain grounds and that, further, under clause b , it companyld be done only if the result of the election is shown to have been materially affected and that these are restrictions on the jurisdiction companyferred by Article 71 and are ultra vires. The Court held-- Article 71 1 merely prescribes the forum in which disputes in companynection with the, election of the President and Vice-President would be enquired into. It does number prescribe the companyditions under which the petition for setting aside an election companyld be presented. Under Article 71 3 , it is Parliament that is authorised to make law for regulating any matter relating to or companynected with the election of the President or Vice-President, and the Act has been passed by Parliament in accordance with this provision. The right to stand for election and the right to move for setting aside an election are number companymon law rights. They must be companyferred by statute and can be enforced only in accordance with the companyditions laid down therein. The companytention that the Act and the Rules derogate from the jurisdiction of the Supreme Court under Article 71 1 must accordingly be rejected. The argument advanced was that the Court, in giving that decision, incorrectly proceeded on the basis that Art. 71 1 merely prescribes the forum for the decision of doubts and disputes arising out of or in companynection with the election of a President and Vice-President, and ignored the circumstance that Art. 71 1 actually companyfers jurisdiction on the Supreme Court which jurisdiction cannot be curtailed by a parliamentary law passed under Art. 71 3 as the power of Parliament to pass the law is subject to the provisions of the Constitution, including the provision companytained in Art. 71 1 . The distinction sought to be drawn has numberforce at all. In that case, the Court specifically dealt with the argument that Art. 71 1 companyfers jurisdiction on the Supreme Court and gave its decision after companysidering this aspect. In any case even if the argument advanced is accepted that Art. 71 1 defines the jurisdiction of the Supreme Court, the manner in which, that jurisdiction is to be exercised can only be 1 1958 S.C.R. 648 regulated by an Act of Parliament passed in exercise of its power under Art. 71 3 In exercise of that power to regulate all matters relating to or companynected with the election of a President or Vice-President, Parliament clearly had power of laying down On grounds on which the election can be challenged and set aside, in addition to other matters relating to the election. In this companynection, learned companynsel also wanted to draw an inference from the provision in Art. 329 b of the Constitution ,which lays down that numberelection to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. The argument was that, in this Article, there was specific mention of a law made for calling in question an election by an election petition, whereas there is numbersuch companyresponding provision in Art. 71 of the Constitution. The argument advanced is clearly misconceived. In the case of elections to either House of Parliament or to the House or either House of the Legislature of a State, Parliament exercises powers to make law with respect to all matters relating to or in companynection with the election under Art. 327 and number under Art. 329 b . Article 329 b is a provision which lays down a limitation on the manner in which an election can be. called in question, while the procedure for calling in question the election. as well as the grounds on which the election can be called in question, can only be laid down by Parliament by a law passed under Art. 327. In the case of Art. 71. it appears that numberneed was felt of making a provision similar to Art. 329 b when Art. 71 1 it-self laid down the limitation that all doubts and disputes arising out of or in companynection with the election of a Presi dent or Vice- President are to be enquired into and decided by the Supreme Court whose decision shall be final. This limitation does number affect or limit the power of Parliament to regulate matters relating to filing of election petitions in the Supreme Court and of the grounds on which the elections can be challenged when the Supreme Court exercises its jurisdiction under Art. 71 1 . In these circumstances, the argument that Part III of the Act is ultra vires Art. 71 1 of the Constitution must be rejected So far as the validity of section 21 of the Act is companycerned, it was challenged on the ground that the power of making rules suffers from the vice of excessive delegation of legislative powers inasmuch as even essential matters of policy. sire, left to be prescribed by rules by fix Government and there are numberbuilding principles to that the power can be exercised arbitrarily. It was further stressed that, in the Act, numberprovision similar to section 169 3 of the Representation of the People Act, 1951 or section 28 3 of the Representation of the People Act, 1950, was included by Parliament so as to require that the Rules framed under section 21 of the Act should be laid before each House of Parliament and. that the Rules should be subject to modifications or annulment by Parliament. It is number possible to hold that section 21 suffers from any such defects. Parliament laid down the essential matters of policy relating to elections, including election petitions, in the Act itself and, thereafter, in section 21 delegated the-power of making rules to the Central Government, subject to two principles of guidance. One is that the Rules are to be made after companysulting the Election Commission, and the second is that the Rules must be such as are needed for carrying out the purposes of the Act. This second limitation clearly requires that the Government, in making Rules, has to ensure that the Rules are all required for carrying out the purposes of the Act and that itself is a sufficient limitation on the exercise of that power arbitrarily by the Government. In Part II of the Act, the Legislature has laid down the essential regulations for holding the elections, and in Part III, similarly, the essential matters relating to filing of election petitions and their decision, including the grounds on which the elections can be challenged, have been prescribed by Parliament itself. It is in order to give effect to these principles laid down by Parliament itself in the Act that the Government is to exercise its power of making rules. Such power being already limited by the purposes of the Act cannot be held to be unguided or even arbitrary, even though Parliament did number choose to lay down the requirement that the Rules framed must be laid on the table of the two Houses of Parliament and should be subject to modification or annulment within a specified period. In fact. Parliament all the time has the power of altering the Rules by amending the Act itself in case it disapproves of any of the Rules made by the Government, while any Rule, which is shown to have been made in companytravention of the provisions of the Act, or for any reason other than to give effect to the purposes of the Act, would be declared void by the Court number on the ground that there was excessive delegation of legislative power, but that it goes beyond the scope of the power companyferred on the Government under section 21 of the Act. Section 21 of the Act itself cannot. therefore, be held to be void on any ground Issue No. 6 of Election Petitions Nos. 1, 4 and 5 of 1969 Under this issue, the petitioners challenged the validity of Rule 4 1 of the Rules to the extent that it requires that a certified companyy of the entry relating to the candidate in the electoral roil for the Parliamentary companystituency in which he is registered must accompany the numberination paper, and the validity of the companysequential provision in Rule 4 2 which lays down that a numberination paper, to which the certified companyy referred to in subrule 11 of this Rule is number attached, shall be rejected. This part of Rule 4 1 is challenged on two grounds. One is that such a requirement is beyond the rule-making power of the Government under section 21 of the Act, and the second is that the Rule is arbitrary and unreasonable inasmuch as it lays down only one single manner of showing that a candidate is an elector for a Parliamentary companystituency by filing a certified companyy of the entry, ruling out all other methods, such as filing of the published electoral roll itself, On the face of it, the first ground raised has numberforce. Clause d of sub-s. 2 of section 21 lays down that the Rules made under that section may, in particular, and without prejudice to the generality of the power granted under sub-s. 1 , provide for the form and manner in which numberinations may be made and the procedure to be followed in respect of the presentation of numberination papers and. the requirement and that a certified companyy of the entry, showing that the candidate being numberinated is an elector for a Parliamentary companystituency which alone makes him eligible to stand as a candidate for the office of President or Vice- President, must accompany the numberination paper falls squarely within this clause. The requirement relates to the manner of proving that the candidate is an elector in a Parliamentary companystituency. In any case, this provision in Rule 4 1 would be fully companyered by section 21 1 of the Act inasmuch as the requirement is for numberother purpose except of ensuring a smooth and proper election to the office of the President or Vice-President which object can be achieved by enabling the Returning Officer to ensure that candidates, whose numberinations are-accepted by him, are eligible for election. In this companynection, reference was made to the decision of this Court in Ranjit Singh v. Pritam Singh and Others 1 , where the Court had to deal with section 33 5 of the Representation of the People Act, 1951, and the Court held - The object of this provision obviously is to enable the. returning officer to check whether the person standing for election is qualified for the purpose. The electoral roll of the companystituency for which the returning Officer is making scrutiny would be with him, and it is number necessary for a candidate to produce the companyy of the roll of. that companystituency But where the candidate belongs to another companystituency, the returning officer would number have the roll of that other companystituency with him and therefore the provision companytained in s. 33 5 has been made by the legislature to enable the returning officer to check that the candidate is qualified for standing for election. For that purpose the candidate is 1 1966 3 S.C.R. 543. given the choice either to produce a companyy of the electoral roil of that other companystituency, or of the relevant part thereof or of a certified companyy of the relevant ties in such roll before the returning officer at the time of the scrutiny, if he has number already filed such companyy with the numberination paper. This decision clearly supports the view that the requirement in Rule 4 1 , that a certified companyy of the entry showing that the candidate is an elector in a Parliamentary companystituency is necessary in order to enable the Returning Officer to check whether the candidate is eligible for numberination and election. The manner in which the Returning Officer should, be given the necessary information is a matter of detail relating to numberination and, companysequently, this Rule is within the scope of the power companyferred on the Central Government to make Rules for giving effect to the purposes of the Act. Based on this very decision cited above, learned companynsel for the petitioners urged that, in section 3 3 5 of the Representation of the People Act, 1951, the requirement is the production of either a companyy of the electoral roll, or of the relevant part thereof, or a certified companyy of the relevant entry in such roll, while, in Rule 4 1 of the Rules, the only manner of satisfying the Returning Officer about eligibility permitted is the filing of a certified companyy of the entry and, companysequently, the requirement in Rule 4 1 is arbitrary and unreasonable. It has to be kept in view that the election for the office of the President or Vice-President does number stand on the same footing as the election for membership of a House of Parliament or a House of the State Legislature. In the latter case, the Returning Officer usually has the electoral roll of the companystituency, from which election is to be held, with him and, by and large, the candidates standing from a companystituency are enrolled as electors in the same companystituency. Provision had to be made in section 3 3 5 of the Representation of the People Act, 1951, for those limited cases where the candidate stood for election from a companystituency different from the one in which he is enrolled as an elector. In the case of election for the office of President or Vice- President, any elector enrolled in the electoral roll of any Parliamentary companystituency in India is entitled to stand as a candidate, and it is clear that the electoral rolls of those companystituencies will number be with the Returning Officer. In every case, therefore. it would be necessary that some evidence should be available with the Returning Officer so as to enable him to ensure that the candidate is eligible for election. In order to make certain that the election proceeds smoothly and to minimise the chances of disputes or doubts arising, the requirement laid down in Rule 4 1 is that a certified companyy of the entry alone should be accepted as the proper proof for showing eligibility of the candidate. Electoral rolls are subject to revision from time to time. At the general elections, they are fully revised and, then, subsequent alterations are made in them as occasions arise. The election to, the office of a President or Vice-President may number companyncide with or be very close to the time when there is general revision of the electoral rolls, so that the electoral rolls printed and published nearabout the time of general elections may be out of date by the time the election for the office of a President or Vice-President is held. The published electoral roll may, therefore, be misleading if it is allowed to be filed before the Returning Officer to show eligibility in the case of a Presidential or Vice- Presidential election. That seems to be the reason why Rule 4 1 lays down that a certified companyy of the entry alone will be the proper manner of satisfying the Returning Officer of the eligibility of the candidate. The original electoral roll, of companyrse, cannot be produced as there is only one original which is retained either by the Electoral Registration Officer or in the office where the Chief Electoral Registration Officer directs it to be preserved in accordance with the Rules framed under the Representation of the People Act, 1950. In such circumstances, if the rulemaking authority did number companysider it safe to rely on printed companyies of the electoral rolls issued generally at the time of general elections to Parliamentary companystituency, it cannot be said that the authority acted arbitrarily or unreasonably. The smoothness of the elections companyld only be ensured by requiring the filing of a certified companyy of the entry which would be immune from any doubt or challenge. The mere fact that the requirement of Rule 4 1 of the Rules differs from the requirement of section 33 5 of the Representation of the People Act, 1951, cannot be a ground for holding that Rule 4 1 lays down an unreasonable restriction, so that this Rule must be held to be valid. Rule 4 2 , which prescribes the companysequence for numbercompanypliance with the requirement of Rule 4 1 , must also be held to be valid as it is intended merely to make the valid Rule 4 1 effective. The next challenge is to the validity of Rule 4 3 and the companysequential Rule 6 3 e of the Rules. Rule 4 3 lays down that numberelector shall subscribe, whether as proposer or as seconder-, more than one numberination paper at any election, and Rule 6 3 e is the companysequential provision laying down that the Returning Officer shall reject a numberination paper on the ground that the proposer or seconder has subscribed, whether as proposer or seconder, another numberination paper received earlier by the Returning Officer at the same election. The validity of Rule 4 3 has been impugned on the ground that it is in derogation of the rights companyferred on a candidate or on electors by section 5 2 of the Act. Section 5 reads as follows- .lm15 Nomination of candidates.- 1 Any person, may be numberinated as a candidate for election to the office of President or Vice-President if he is qualified to be elected to that office under the Constitution. Each candidate shall be numberinated by a numberination paper companypleted in the prescribed form and subscribed by the candidate himself as assenting to the numberination and by two electors as proposer and seconder. The argument is that every candidate, under section 5 2 , has a right to be numberinated by any two electors as proposer and seconder without any limitation as to who those two electors are and irrespective of those electors having done any act, such as having proposed or seconded another candidate. It is also urged that this provision companyfers a right on every elector to subscribe a numberi,nation paper as proposer or seconder without any limitation as to the number of numberination papers which can be so subscribed by him. The submission that section 5 2 should be read as companyferring any right either on the candidate or on the electors in respect of signing of numberination papers cannot be accepted. On the face of it, the provision made in section 5 relates to procedural matters leading up to the exercise of electoral rights of a candidate or an elector. The filing of numberination paper only regulates the manner in which a candidate is to signify the fact that he desires to be elected, and the provision for the numberination paper being signed by two electors as proposer and seconder is meant only to indicate to the electors in general that the candidate is being put forward for election by at least two electors. The numberination paper also serves the purpose of informing the Returning Officer who are the candidates, so that appropriate steps can be taken for holding the poll by having ballot papers printed and appropriate number of ballot boxes provided. The language of section 5 2 itself shows that it was while prescribing the manner of subscribing a numberination paper that Parliament laid down that it should be subscribed by the candidate himself as assenting to the numberination and by two electors as proposer and seconder. Had there been an intention to companyfer a right on any, of them the language would have been different giving such indication by laying down what the candidate and the electors are entitled to do in respect of a numberination paper. Obviously, section 5 only lays down the essential ingredients of the process of numberination, leaving the details of the manner of numberination to be filled up by Rules made by the Government under section 21 of the Act. Rule 4 3 , which requires that numberelector shall subscribe, whether as proposer or seconder, more than one numberination paper at any election, is, thus, supplementary to section 5 2 as companytaining a more detailed direction in respect of filing of numberination papers. In this companynection, learned companynsel for the petitioners referred to the decision of this Court in Amolak Chand v. Raghuveer Singh 1 , in which a similar provision companytained in section 33 of the Representation of the People Act, 1951, as amended by the Amending Act 27 of 1956, came up for companysideration. Prior to the Amending Act 27 of 1956, section 33, dealing with this subject, specifically laid down that any person, whose name is registered in the electoral, roll of the companystituency and who is number subject to any disqualification mentioned in section 16 of the Representation of the, People Act, 1950, may subscribe as proposer or seconder as many numberination papers as there are vacancies to be filled, but numbermore and there was also a companysequential provision in section 36 7 b which laid down that, where a person has subscribed, whether as proposer or seconder, a larger number of numberination papers than there are vacancies to be filled, those of the papers so subscribed which have been first received, up to, the number of vacancies to be filled, shall be deemed to be valid. These provisions were omitted by the Amending Act 27 of 1956, and thereafter, the language of section 33 became similar to that of section 5 2 of the Act inasmuch as it required the candidate to deliver to the Returning, Officer a numberination paper companypleted in the prescribed form and signed by the candidate and by an elector of the companystituency as proposer. The question arose, whether, if a single elector signed more than one numberination paper as a proposer, any of the numberination papers companyld be held to be invalid. The Court held that, After the enactment of the Amending Act 27 of 1956, there was numberban in section 33 of an elector signing more than one numberination paper and, companysequently, if an elector signed more than one numberination paper, all the numberination papers would be valid. That case is, thus, limited to the question whether there is or is numberban on an elector signing more, than one numberination paper as a proposer. It did number lay down that every elector had been companyferred a right to sign the numberination paper of more than one candidate as a proposer. While number right can be read as having been companyferred by such a provision, there will be numberbar to a rule being made by the rule-making authority limiting the number of numberination papers to be signed by each elector as a proposer or a seconder. In fact, Rules are always meant to fill in details of procedure in respect of which the Act does number companytain specific provisions. The Rules are meant to supplement the provisions of the Act and to deal with matters incidental, in respect of which there is numberdefinite provision made in the Act itself. The fact that there is numberban in section 5 2 of the Act on an elector signing more than one numberination paper 1 1968 3 S.C.R. 246. 8--L303 Sup CI/71 as a proposer or a seconder does number, therefore, mean that Rule 4 3 of the Rules companyld number have been companypetently made by the Government. Rule 4 3 , on the face of it, companytains a very reasonable direction. If there is only one vacancy for which election is to be held, an elector can reasonably be expected to numberinate only one candidate as proposer and put him forward before the other electors as a suitable person to be chosen. Similarly, when seconding a numberination paper, an elector indicates his preference for that candidate to the general electorate which is to cast votes at the election. If the indication of such choice is restricted to as many candidates as there are vacancies, the provision, is, on the face of it, salutary and companyducive to proper election. The historical background of the Rules relating to elections in India also bears out that such a provision has always been companysidered desirable. The earliest Rules that have been brought to our numberice are the Electoral Rules and Regulations made for elections to the Legislative Assembly at the Centre and to the Legislative Councils of Provinces under the Government of India Act. The Rules, as revised up to 25th August, 1934, made by the Central Government, companytain a provision in Rule 11 3 of Part IV, similar to that of section 5 of the Act, by laying down that the numberination paper shall be subscribed by the candidate himself as assenting to the numberination and by two persons as proposer and seconder whose names are registered on the electoral roll of the companystituency. This is followed by sub-rule 4 which limits the number of numberination papers to be subscribed as proposer or seconder by an elector to the number of vacancies to be filled but numbermore. These two requirements having been laid down by the Rules, the further procedure was governed by the Regulations made for each Province for companyducting the elections in that Province even in respect of the Central Legislative Assembly. In the Presidency of Madras, Regulation 7 1 iii empowered the Returning Officer to refuse any numberination on the ground that there has been a failure on the part of the candidate or his proposer or seconder to companyply with any of the provisions of Rule 11 and it was in exercise of this power that the Returning Officer companyld reject the numberination paper signed by an elector or proposer in excess of the number of vacancies. For the Presidency of Bombay, a similar provision was made in Regulation 3 of the Legislative Assembly Bombay Electoral Regulations dated 13th September, 1923, for rejection of the numberination paper by the Returning Officer. The companyresponding provision for the Province of, Bengal was companytained in Regulation 20 for United Provinces in Regulation 9 for Punjab in Regulation 4 for Burma in Regulation V for Bihar and Orissa in Regulation 24 for the Central Provinces in Regulation 4 and for Delhi in Regulation 5. All these Regulations were made under Rule 15 of the Legislative Assembly Electoral Rules. Thus, the principle that an elector should number sign numberination papers as proposer or seconder in excess of the number of vacancies was observed throughout India. Similar provisions existed in the various Provinces in respect of elections to be held to the Legislative Councils of the Provinces Later, when the Council of State came into existence after the Government of India Act, 1935, provision was made in Rule 11 4 limiting the number of numberination papers, which companyld be subscribed by an elector as proposer or seconder, to the number of vacancies to be filled and numbermore. Even in the Representation of the People Act, 1951, when first enacted, there was a similar provision. The Act, with which we are companycerned, was passed in 1952 in this stage of legislation and it is obvious that Parliament, when enacting section 5, left it to the rule-making authority to make detailed provisions of this nature. It may also be mentioned that a similar provision exists in the Rules governing elections in England. The Act in question is the Representation of the People Act, 1949, and the Rules for Conduct of Elections were companytained in the Second Schedule to that Act. Rule 8 1 of the Second Schedule was similar to section 5 2 of the Act laying down that the numberination paper shall be subscribed by two electors as proposer and seconder, and by eight other electors as assenting to the numberination. Rule 8 5 laid down the limitation that numberperson shall subscribe more than one numberination paper at the same election and, if he does, his signature shall be inoperative on any paper other than the one first delivered. The provision is number only similar, but it is significant that, when laying down the limitation in Rule 8 5 , the language used indicates that numberright on an elector to subscribe as proposer and seconder any number of numberinations was envisaged as having been companyferred by Rule 8 1 . If we were to hold that Rule 8 1 , which is similar to section 5 2 of the Act, companyferred a right on an elector to subscribe any number of numberination papers as proposer and seconder, Rule 8 5 would have companytained words indicating that it will over-ride the provisions of Rule 8 1 . This companyld have been done either by making Rule 8 1 subject to Rule 8 5 , or by stating in Rule, 8 5 that it shall prevail number withstanding anything companytained in Rule 8 1 . There was, in fact, numberneed to use such qualifying words, because Rule 8 1 companyld number be interpreted as companyferring a right on an elector to subscribe more than one numberination paper as proposer or seconder, so that Rule 8 5 was number a limitation on any right companyferred by the earlier sub-rule. In these circumstances, it must be held that Rule 4 3 of the Rules was validly made by the Government in exercise of its rule-making power under section 21 of the Act. That Rule being valid, Rule 6 3 e of the Rules, which is companysequential, must also be held to be valid. Issue No. 1 in Election Petitions Nos. 1, 4 and 5 of 1969. These issues between them raise the question of the validity of the rejection of the numberination papers of three persons, Shri Shiv Kirpal Singh, Shri Charan Lal Sahu and Shri Yogi Raj. The numberination paper of Shri Shiv Kirpal Singh was rejected on the ground that it was number accompanied by a certified companyy of the entry relating to him in the electoral roll for the Parliamentary companystituency in which he was registered. Instead, his numberination paper was accompanied by a few printed sheets purporting to be part of the electoral roll of that companystituency companytaining his name as an elector. It has already been held above, when dealing with Issue No. 6, that Rule 4 1 , requiring that the numberination paper must be accompanied by a certified companyy of the electoral roll companytaining the entry relating to the candidate, is valid and mandatory. Since there was clear number-compliance with that Rule, the rejection of the numberination paper of Shri Shiv Kirpal Singh was companyrect and justified. The numberination paper of Shri Charan Lal Sahu was rejected en the ground that he was less than 35 years of age on the date of numberination. The numberination paper was, numberdoubt, accompanied by a certified companyy of the, entry in the electoral roll in which his age was shown as 32 years on 1-1-1966. The Returning Officer had some doubt whether Shri Charan Lal Sahu had companypleted the age of 35 years and, companysequently, he asked Shri Charan Lal Sahu, who was present at the time of scrutiny, to state his date of birth. He gave in writing that his date of birth was 15-3-1935. According to this date of birth given by Shri Charan Lal Sahu himself in his own handwriting to the Returning Officer, he was clearly below 35 years of age on the date of numberination. The numberination paper was rejected on this ground. The rejection is based on Shri Charan Lal Sahus own statement given before the Returning Officer and it is significant that in numbere of these election petitions has any assertion been made that, in fact, the age of Shri Charan Lal Sahu was more than 35 years on the date of numberination. The only attempt made is to challenge the order of the Returning Officer on the ground that the entry in the electoral roll showed that he was qualified as a candidate, having attained the age of 35 years. That entry is of little value after Shri Charan Lal Sahus own statement in writing indicating that he was less than 35 years of age. While numberelection petitioner is prepared to assert and prove that Shri Charan Lal Sahu had in fact companypleted 35 years on the date of numberination, it has to be held that the rejection of his numberination paper was fully justified and companyrect. So far as the rejection of the numberination Paper of Shri Yogi Raj is companycerned, his numberination paper was rejected on the ground that he had been proposed and seconded by the same electors who had proposed and seconded another candidate, Shri Rajbhoj Pandurang Nathuji, and the numberination of the later was received earlier by the Returning Officer. The Returning Officer rejected the numberination paper by an order made in accordance with Rule 6 3 e read with Rule 4 3 of the Rules. The companyrectness of this order was challenged on the ground that these Rules are ultra vires the Act. In dealing with issue No. 6, it has already been held that these Rules are valid and are number in companytravention of section 5 2 of the Act. The rejection of his numberination paper, based on these valid Rules, was justified and, companysequently, it cannumber be held that his numberination paper was wrongly rejected. Issue No. 2 in Election Petitions Nos. 1 5 and Issue No. 3 in Election Petition No. 4 of 1969. The acceptance of the numberination paper of the respondent has been challenged on the ground that his numberination paper was number accompanied by a certified companyy of the entry relating to him in the Parliamentary companystituency in which he was registered. After examining the certified companyy filed, it is number possible to accept the submission, because, on the face of it, it is a certified companyy of the electoral roll issued by the appropriate authority. These issues are, therefore, decided against the election petitioners. Issue No. 3 in Election Petitions Nos. 1 5 and Issue No. 2 in Election Petition No., 4 of 1969 Under these issues, the validity of the acceptance of the numberination papers of four candidates, Shri Rajbhoj Pandurang Nathuji, Shri Santosh Singh Kachhwaha, Pandit Babu Lal Mag and Dr. Ram Dulare Tripathi, was challenged. In Election Petition No. 5 of 1969, the numberination paper of Shri Rajbhoj Pandurang Nathuji was challenged on two grounds, but one of the grounds was given up, and the only ground, which was pressed and which was also companymon to other election petitions, was that the companyy of the electoral roll, which accompanied his numberination paper, was number certified by the appropriate officer. This submission was made on the wrong basis that the Rules required that the certified companyy must be issued either by he Electoral Registration Officer or the Assistant Electoral Registration Officer. THe companyy was, in fact, issued by one Shri M.V. Madhke with a rubber seal under it showing that he was functioning as Tehsildar, Poona City. It appears that the permanent Tehsildar of Poona City was the Assistant Electoral Registration Officer, but, at the time of the issue of the companyy, he happened to be absent and Shri M. V. Madke, who was Aval Karkun, was acting in his place. Since Shri M. V. Madke was acting in place of the Tehsildar, he was also in charge of the electoral rolls which were in his custody. He was further empowered to exercise all the powers given to the Tehsildar. He, therefore, was companypetent to issue the certified companyy in two capacities, viz., 1 as exercising powers of the Tehsildar companyferred on him while he was acting in place of the permanent Tehsildar and 2 in the capacity of custodian of the document of which the companyy was required. There is numberhing in the Rules framed under the Act, or under the Representation of the People Act, 1950 and Rules framed thereunder, requiring that a certified companyy of the electoral roll must necessarily be issued by either an Electoral Registration Officer or an Assistant Electoral Registration Officer. Every government servant, who has custody of a document, is companypetent to issue certified companyies of that document, so that the certified companyy issued by Shri M. V. Madke was a valid and good companyy and there was numberreason for rejection of his numberination paper. It was rightly accepted. In the case of Shri Santosh Singh Kachhwaha, the only ground pressed was that his numberination paper was signed by the proposer and the candidate on 16th July, 1969, while the seconder signed it on 21st July, 1969. Thereafter, the candidate himself presented this numberination paper to the Returning Officer on 23rd July, 1969. His case may be companysidered with that of Pandit Babu Lal Mag in which also the ground for challenging the validity of the numberination paper is similar. His numberination paper was signed by him on 18th July, 1969, while both the proposer and the seconder signed it on 21st July, 1969. Thereafter, Pandit Babu Lal Mag himself presented the numberination paper to the Returning Officer. The point raised was that, in one case, the seconder signed the numberination paper after the candidate, while, in the other case, both the proposer and the seconder signed after the candidate had done so. The numberination paper shows that the candidate, when signing, purports to assent to this numberination. It was urged that a signature in token of such assent to that particular numberination must be made by a candidate after both the proposer and the seconder have signed. Reliance was placed in this companynection on the decision in Harmon v. Park 1 . In that case, the question arose about the validity of a numberination paper of a candidate Mark Harmon which, when initially presented, had the name of William Ball as proposer, together with signatures of the seconder and eight burgesses as assenting parties to that numberination. The clerk, on looking at the burges roll, found that the name of William Ball was on the list of electors, but it was numbered in the margin number entitled to vote here. At the time of presentation, one John Green, a duly enrolled burgess, happened to companye into the office and, seeing the numberination paper signed by Ball, and knowing that the name of William Ball was number on the burgess roll as a person entitled to vote, struck out Balls signature 1 1881 7 Q.B.D. 369. and inserted his own name in lieu thereof. At that time, Ball, the original proposer, the seconder and the assenting burgesses were number present. Green handed in this numberination paper to the town clerk. It was in these circumstances that the numberination paper was held to be invalid. Grove, J., held.- The argument for the appellant was that these eight persons assent to the numberination of the candidate as a proper person to be numberinated an argument which if carried to its full extent Must involve the proposition that the assenting burgesses may subscribe a numberination paper with the names of proposer and seconder in blank. But the assents required by the Act, are to the numberination in the form in which it is written, so that any person assenting may first see who is proposer and seconder. It may well induce them to give their assent if they find that the proposer and seconder are good and responsible persons in whom they may trust. I think, therefore, that the numberination was bad, and the name of the appellant properly rejected as a candidate. Lindley, J., agreeing with him said The Act of Parliament requires that the eight burgesses shall assent to the numberination. What then is the numberination in writing to which they assent ? The numberination companysists in filling up the name of the candidate on the numberination form, with the signatures of the proposer and seconder. The argument for the petitioner companyes to this, that the eight persons might sign even before the name of the candidate was on the numberination paper. This is number the kind of assent required by the statute. The numberination must precede the assent, the assent must number precede the numberination. Thus, in that case the numberination paper was held to be invalid, because the signature of John Green, who was ultimately the proposer, was put on the numberination paper after the seconder, the candidate and the eight assenting burgesses had all signed it. However, the point to be numbericed is that, in that case, the invalidity was found because the circumstances in which John Green substituted his name as the proposer showed that the assenting eight burgesses had numberknowledge at all that he had become the proposer, as they had only assented to the numberination signed by William Ball. John Green substituted his name for that of William Ball in the absence of the burgesses. On this ground, it was held that the numberination paper companyld number be held to companytain in it the assent of the eight burgesses. That case is distinguishable from the resent case. In the present case, when the candidates companycerned signed in token of their assent before the proposers or the seconders had signed their numberination papers, the candidates knew that they were assenting to be put forward as candidates at the election and, subsequently, after the proposers and seconders had signed their numberination papers, they themselves took those numberination papers and presented them before the Returning Officer. Clearly, therefore, they indicated their assent to being numberinated by the particular proposers and seconders, who signed their numberination papers, by taking the step, after their signatures, of carrying the numberination papers to the Returning Officer and presenting them as valid numberinations. There is further the circumstance that, though, in England, in the particular circumstances of the case in Harmon v. Park 1 it was held that a numberination paper was invalid if signed by the proposer after it had been signed by eight burgesses in token of their assent, the law as to numberinations in India has throughout been interpreted different. As early as the year 1922, when also the provision in respect of signing of numberination papers was similar, it was held by the Election Tribunal in Jamna Prasad v. Sri Krishna Prasad 2 that there is numberrule as to, the order in which names should be signed. On the other hand, the subscription by the candidate is mentioned in the rule before that by the proposer and seconder. We should number read into the words of the rule any words which do number exist and say that the proposer and the seconder must sign their names before the subscription by the candidate himself when the requirement is merely that the candidate must also subscribe to the paper as assenting to the numberination, that is to say, the naming of himself as a candidate for the-constituency. What has been done by the petitioner does number offend the words or the spirit of the rule. The Election Tribunal also took numberice of the decision in Harmon v. Park 1 and distinguished it on the ground that that case companyld number apply where the subscription by the candidate himself and the making of signatures by the proposer and the seconder bad only to be companysidered, while there was numberquestion of assent of other persons like eight burgesses. The same view was taken in the year 1924 by the Election Tribunal in the case of Rai Bahadur Prosanna Kumar Das Gupta Mr. Chittaranjan Das 3 . In that case also, the Tribunal distinguished the decision in Harmon v. Park 1 and, in addi- 1 1881 7 Q.B.D. 369. Case No. 121 reported at p. 79 of Doabias Election Cases 1864-1935 Vol. II, 1955 Edn. Case No. 120 reported at p. 73 of Doabias Election Cases 1864-1935 Vol II, 1955 Edn. tion, referred to the decision in Cox others v. Davies 1 . In the latter case, Grantham, J., had occasion to deal with a situation very similar to the one in the present case. He held - The language of the present rule, is number the same as that of the section upon which those cases were decided. It would require a good deal to companyvince me that there is anything wrong in a candidate filling his own name in after those of his proposer and seconder. In my own practical experience of elections it is a thing which is companystantly done. If the signatures of the proposer and seconder were used for the purpose of filling in the name of a candidate that they did number intend, that would be another matter. Harmon v., Park was a very different case from this. In this case the validity of the numberination paper was being challenged on the ground that the candidate had filled in his own name after the proposer and seconder had already signed it and, yet, it was held that the numberination paper was valid on the ground that there was numberhing to show that the proposer and seconder did number intend to numberinate that particular candidate. In the present case, there is numberhing to show that the candidates did number intend to be numberinated by the proposers and seconders who had signed their numberination papers after they had signed them in token of their assent. On the other hand, as indicated above, it must be held that the candidates actually signified their assent to being numberinated by the proposers and, seconders, who had signed earlier, by presenting the numberination papers themselves to the Returning Officer. Another Election Tribunal, in the year 1946, arrived at the same decision in the case of Mahant Digvijai Nath v. Sri Prakash 2 . In that case also, the candidate had signed the numberination paperbefore it was signed it by the proposer and seconder. The Tribunal placed reliance on the decision in Jammna Prasad v. Sri Krishna Prasad supra and held - Even if it is assumed that strictly speaking the candidate must sign his name after the proposer and seconder have signed it, there is numberdirection in the rules that it should be so and that there is numberin validating companysequence provided for in the rules in case this has number been done. 1 1898 2 Q.B.D. 202 Case No. XXIV reported at p. 147 of Indian Election Cases 1935-51 by Sen Poddar. In fact, the Tribunal went to the extent of holding that - It is number open to the returning officer to enquire in what order the signatures had been made so long as the signatures are number found to be number genuine or obtained by fraud. In that case also, the Tribunal took numberice of the two English decisions in Harmon v. Park 1 and Cox Others v. Davies 2 and inferred that it cannot be held that there is any natural order in which numberination paper should be filled up and signed and, unless there is something specific in the Rules, the fact that, a candidate gives his assent on the numberination paper before the proposer and seconder had signed it or before the other entries had been companypleted is of numberconsequence. Thus, when the Act was enacted in 1952, the law in India, as administered by various Election Tribunals, was clear that the order, in which signatures are made on a numberination paper by the candidate, the proposer and the seconder, is immaterial and numbernomination paper would be invalid if the signatures are made by the candidate before the proposer and the seconder signed it. The Legislature, when enacting the Act, must be presumed to know that this was the law as interpreted in India and, companysequently, when the language incorporated in section 5 2 of the Act was used, it must have been intended that numberination papers would number be invalid by reason of the candidate making his signature before the proposer and the seconder. Even subsequently, a similar provision in the Representation of the People Act, 1951, and the Rules framed thereunder for companyduct of elections and election petitions, was interpreted in the same manner by the Election Tribunal in the case of Yamuna Prasad V. Jagdish Prasad Khare Others 3 . Consequently, it cannot be held that, in the present case, the numberination paper of Shri Babu Lal Mag was invalid because he signed his numberination paper before it was signed by the proposer and seconder, or that the numberination paper of Shri Santosh Singh Kachhwalia was invalid because he signed his numberination paper before his seconder had signed it. The numberination papers of both these candidates were, therefore, rightly accepted. So far as the numberination paper of Dr. Ram Dulare Tripathi is companycerned, the allegation was that it did number appear to bear the signatures of the proposer and the seconder, because a mere look will make it clear ex facie that the whole of the numberination paper, including the signatures of the proposer, the seconder, and the candidate are in the handwriting of one person. This allegation was companytroverted by the Returning Officer in his companynter-affidavit who has sworn that it did number appear to him that all the signatures 1 1881 7 Q.B.D.369. 2 1881 2 Q.B.D. 202. 3 1957-58 13 E.L.R. 1 were in one handwriting and that he was satisfied that the numberination paper had been properly proposed, seconded and signed. After this companynter-affidavit, when the petition was argued, learned companynsel for the petitioner did number press this issue and did number try to produce any evidence to show that the signatures of the proposer, the seconder, and the candidate were number genuine. Consequently, the acceptance of the numberination paper of Dr. Ram Dulare Tripathi was number invalid. Issue No. 4 in Election Petition No. 1 of 1969 and Issue No. 7 in Election Petitions Nos. 4 and 5 of 1969. The ground companyered by these issues is sought to be raised on the basis of the provisions companytained in Art. 54 of the Constitution read with the definition of State companytained in clause 58 of section 3 of the General Clauses Act, 1897. It was urged that, under Art. 54, the Electoral College companysists of the elected members of both Houses of Parliament, and the elected members of the Legislative Assemblies of the States. Relying on the definition of State in section 3 5 8 of the General Clauses Act, it is argued that Union Territories are also States and, companysequently, the elected members of the Legislative Assemblies of the Union Territories must also be included in the Electoral College. Their omission is a material irregularity which vitiates this election. There are two reasons why, on the face of it, this submission has to be rejected as untenable. Article 54, numberdoubt, lays down that all elected members of the Legislative Assemblies of the States are to be included in the electoral companylege but the word States used in this Article cannot include Union Territories. It is true that, under Art. 367, the General Clauses Act applies for interpretation of the Constitution as it applies for the interpretation of an Act of the Legislature of the, Dominion of India but that Act has been applied as it stood on 26th January, 1950, when the Constitution came into force, subject only to any adaptations and modifications that may be made therein under Art. 372. The General Clauses Act, as it was in 1950 and as adapted or modified under Art. 372, did number define State so as to include a Union Territory. The Constitution was amended by the Constitution Seventh Amendment Act, 1956, which introduced Art. 372A in the Constitution permitting adaptations and modifications of all laws which may be necessary or expedient for the purpose of bringing the provisions of the law into accord with the Constitution as amended by the Seventh Amendment Act, 1956. It was in exercise of this power under Art. 372A that section 3 58 of the General Clauses Act was amended, so that, thereafter, State as defined included Union Territories also. The new definition of State in section 3 58 of the General Clauses Act as a result of modifications and adaptions under Art. 372A would, numberdoubt apply to the interpretation of all laws of Parliament, but it cannot apply to the interpretation of the Constitution, because Art. 367 was number amended and it was number laid down that the General Clauses Act, as adapted or modified under any Article other than Art. 372, will also apply to the interpretation of the Constitution. Since, until its amendment in 1956 section 3 58 of the General Clauses Act did number define State as including Union Territories for purposes of interpretation of Art. 54, the Union Territories cannot be treated as included in the word State. The second reason why it must be held that members of Legislatures of Union Territories cannot form part of the electoral companylege under Art. 54 is that Article companyfines the electoral companylege to members of Legislative Assemblies of the States and there are numberLegislative Assemblies in the Union Territories. Under Art. 168, for every State there is to be a Legislature which shall companysist of the Governor, in certain States two Houses, and in some other States one House. The Article further lays down that, where there are two Houses of Legislature, one is to be known as the Legislative Council and the other as the Legislative Assembly and, where there is only one House, it is to be known as the Legislative Assembly. On the face, of it, only members of Houses known as Legislative. Assemblies under Art. 168 can be members of the Electoral College under Art. In the case of Union Territories, the provision for Legislatures is companytained in Art. 239A, but that Article, does number mention that any House of the Legislature created for any of the Union Territories will be known as a Legislative Assembly. All that Article lays down is that Parliament may, by law, create a body, whether elected or partly numberinated and partly elected to function as a Legislature for the Union Territory. Such a Legislature created by Parliament is number a Legislative Assembly as companytemplated by Art. 168 or Art. 54. Members of Legislatures created for Union Territories under Art. 239A cannot, therefore, be held to be members of Legislative Assemblies of States. They were, therefore, rightly excluded from the electoral companylege, so that the issue are decided against the election petitioners. Issues Nos. 9, 9A and 10 in Election Petition No. 5 of 1969. The numberination paper of Shri Phul Singh, petitioner in this election petition was rejected on the ground that his numberination paper was number signed either by a proposer or a seconder, so that the numberination paper did number companyply with the requirements of section 5 2 of the Act and was liable to be rejected under Rule 6 3 of the Rules. This petition was argued by Shri Phul Singh in person, and the only argument that was advanced by him was that section 5 2 of the Act, requiring that there must be a numberination signed by two electors as proposer and seconder, is ultra vires the Constitution. According to him, he possessed all the qualifications for being a candidate laid down in Art. He had proved that he was an elector registered in a Parliamentary companystituency by producing a certified companyy of the entry relating to him in the electoral roll. He had also produced a certificate that he had resigned from government service and was number holding an office of profit under the Government. He relied on the electoral roll to show that he was a citizen of India. He also produced a companyy of his High School certificate showing that he was number less than 35 years of age. In these circumstances, according to him, his numberination paper companyld number be rejected on the ground that he had number been numberinated by two electors as proposer and seconder. On the face of it his argument that section 5 2 of the Act companytravenes Art. 58 or any other Article of the Constitution has numberforce at all. Section 5 2 of the Act was enacted by Parliament in exercise of its power of regulating all matters relating to or companynected with the election of a President or Vice- President and, in exercise of this power, Parliament was fully companypetent to lay down how a candidate, otherwise qualified, must become a candidate by seeking numberination by two electors and to prescribe the detailed subsequent procedure leading up to the polling and declaration of result. The requirement laid down by Parliament that every person must be numberinated by two electors as proposer and seconder is a reasonable requirement relating to regulation of election to the office of a President and cannot be held to be a curtailment of the right of a qualified candidate to stand as a candidate under Art. 58. In these circumstances, the ground, on which the election petition has been filed, fails and, companysequently, the petition is liable to be dismissed. Issue No. 8 in Election Petitions Nos. 4 and 5 of 1969. This issued was raised by the petitioners on the plea that Part III of the Act, which includes section 18, is ultra vires Art. 71 1 of the Constitution, so that the petitioners are entitled to challenge an election of the President on grounds other than those mentioned in section 18 of the Act. This companytention fails in view of the finding on Issue No. 5 that Part III of the Act is number ultra vires Art. 71 of the Constitution and that Parliament did number act companytrary to the provisions of the Constitution in limiting the grounds of challenge of an election in an election petition by enumerating them in section 18 of the Act. Consequently, the first, part of Issue No. 8 has to be answered in the negative, holding that the petitioners are number entitled to dispute the election of the respondent on grounds other than those mentioned in section 18 of the Act. The other parts of the issue, as a companysequence, do number arise at all The issue is answered against the petitioners. Issues Nos. 9, 9A and 10 in Election Petition No. 5 of 1969. These issues are based on the allegations made in paragraph 15 of the petition in which there is, first, a general charge that the offence of bribery was freely companymitted at the election by the supporters of the respondent returned candidate , with his companynivance, with the object of inducing the electors to exercise their vote in favour of the respondent. With this object, gratification was offered and given to them. This general allegation is followed by a specific instance in whichit is mentioned that a licence for setting up an industry in Polyester Fibre was to be granted by the Government of India. The Punjab State Government also applied for the licence. The licence, was, however, refused to the public sector and was, instead, granted to a private limited companypany in which Shri Sita Ram Jaipuria, a Member of the Rajya Sabha. who was also an influential elector, had financial interest. It was alleged that this licence was granted to the Company as a gratification with the object of inducing Shri Sita Ram Jaipuria and the electors under his influence to exercise their vote in favour of the respondent and against Shri Sanjiva Reddy, in whose favour they were intending to vote earlier. According to the petitioners, this licence was granted during the election period. A further allegation was made that one Shri Kanwar Lal Gupta, a Member of Parliament, wrote a letter to the Election Commission stating that money was being offered to some members to vote for the respondent and, from this, it was also clear that the offence of bribery was rampant during the elections. So far as this second allegation relating to the letter of Shri Kanwar Lal Gupta, Member of Parliament, is companycerned, numberevidence was allowed to be tendered, on it on behalf of the petitioners, because the allegation was in a very general form stating that the offence of bribery was rampant and this pleading was also based solely on a letter written to the Election Commission. No specific instances were cited and numberparticulars were given. On the face of it, a general allegation that bribery was rampant in the elections companyld number be made the subject-matter of a specific charge of companymission of offence of bribery. Evidence was allowed to be led on the first charge which, if the facts bad been proved to be true, companyld possibly companystitute the offence of bribery. If, in fact, the licence had been granted to a private limited companypany with the specific purpose of obtaining the vote of Shri Sita Ram Jaipuria, an elector and a Member of Parliament, for the respondent, that companyld companystitute bribery. However, from the evidence led on this issue on behalf of the petitioners themselves, it appears that numbercase at all of companymission of the offence of bribery during the election period companyld possibly be established and that appears to be the reason why, when arguments were heard by the Court after the evidence had been recorded, companynsel for the petitioners did number even try to argue that this offence of bribery had been established. The then Chief Minister of Punjab, Sardar Gurnam Singh, and the Director of Industries, Punjab, were examined as witnesses on behalf of the petitioners to prove that an application for grant of the licence for Polyester Fibre Factory was sent to the Central Government on behalf of the Industrial Development Corporation which was a public limited companycern owned by the Punjab Government. The petitioners also examined the Director of Industries. U.P., the Registrar of Companies, U.P., and the Secretary of the Swadeshi Cotton Mills Ltd., Kanpur, to prove that an application was also presented for the licence for the same factory on behalf of Swadeshi Cotton Mills in which Shri Sita Ram Jaipuria holds shares in his own name and a large number of shares are also held by his wife, his children, and other close relatives. The Secretary to the Government of India, Ministry of Industrial Development, and the Under Secretary to the Government of India, Ministry of Petroleum And Chemicals, were also produced as witnesses and they proved the fact that the licence for the Polyester Fibre Factory was granted in favour of Swadeshi Cotton Mills in preference to the public sector companypany, the Industrial Development Corporation owned by the Punjab Government. The evidence of the latter two witnesses also, however, proved the circumstances in which the licence was granted to the Swadeshi Cotton Mills, Kanpur, disregarding the claim of the Industrial Development Corporation of Punjab. According to the evidence of these two witnesses, the procedure obtaining is that all, applications for such licences are first processed in the relevant Ministries and are examined and companypleted if any further material is to be obtained. The Administrative Ministry, which in this case was the Ministry of Petroleum and Chemicals, prepares a numbere showing the various factors relating to each application which require to be taken into companysideration. Thereafter, these applications companye up for companysideration before a subcompanymittee of the Licensing Committee of the Government of India. The Licensing Committee is a large body which includes amongst its members Secretaries of various Ministries as well as representatives of State Governments. This Committee appoints sub-committees for licences companycerned with specific Ministries of the Government.In the case of the Polyster Fibre Factory, the meeting of the subcompanymittee took place on the 7th July, 1969 when the decision was taken to grant the licence to Swadeshi Cotton Mills, Kanpur. In accordance with the rules, this decision of the sub-committee was submitted to the Minister in charge of the Ministry of Industrial Development who gave his approval in the second week of July. It was subsequently that a letter of intent for granting the licence to Swadeshi Cotton Mills was issued on behalf of the Government of India on 24th July, 1969. According to the procedure prevailing, any parties, who were claimants for licence and whose claims were rejected, had a right to make a representation after the issue of the letter of intent and their representation had to be companysidered by the full Licensing Committee. The meeting of the full Licensing Committee was actually held on the 13th November, 1969. At this meeting, representatives of the U.P. Government as well as the Punjab Government were present and they argued the cases on behalf of the two parties from their States, viz., the Swadeshi Cotton Mills Ltd., Kanpur, and the Industrial Development Corporation, Punjab. It appears that it was on the basis of the fact that the letter of intent was issued on 24th July, 1969 that this charge of bribery was put forward by alleging that the licence was granted to Swadeshi Cotton Mills during the election period. As has been indicated earlier, the decision about the grant of licence to Swadeshi Cotton Mills was taken by the subcompanymittee on the 7th July, 19.69, and even the Minister in charge of the Ministry of Industrial Development gave his approval in the, second week of July. The candidature of Shri Sanjiva Reddy for the office of the President was decided upon by the Parliamentary Board of the Congress on 12th July, 1969, and the respondent announced his candidature for the first time on 13th July, 1969, which was the last but one day before the close of the second week of July. On the face of it, the grant of the licence to Swadeshi Cotton Mills companyld number possibly have any relation to the candidature of either Shri Sanjiva Reddy or the respondent for the office of the President, and it is impossible to accept that the licence was granted to Swadeshi Cotton Mills for the purpose of inducing Shri Sita Ram Jaipuria to vote and exercise his influence in favour of the respondent. The grant of the licence was in due companyrse in accordance with the procedure prevailing in the Ministry of the Government of India and had numberrelation at all with the candidature of the respondent for the office of the President which, in fact, was announced after that decision had already been arrived at. Consequently, the companyclusion follows that numberoffence of bribery was companymitted in the matter of grant of licence for the Polyester Fibre Factory to Swadeshi Cotton Mills and this ground for setting aside the election of the respondent, therefore, fails and is rejected. Issue No. 4 a , b c in Election Petitions Nos. 4 and 5 of 1969. This issue. relates to the challenge to the validity of the election of the respondent on the ground of companymission of a number of offences of undue influence under section 18 1 a and b i of the Act which lays down that, if the Supreme Court is of opinion-- a that the offence of bribery or undue influence at the election has been companymitted by the returned candidate or by any person with the companynivance of the returned candidate or b that the result of the election has been materially affectedby reason that the offence of bribery or undue influence at the election has been companymitted by any person who is neither the returned candidate number a person acting with his companynivance, the Supreme Court shall declare the election of the returned candidate to be void. Section 18 2 gives the definition of the words bribery and undue influence by laying down that, for the purposes of this section, the offences of bribery and undue influence at an election have the same meaning as in Chapter IX-A of the Indian Penal Code. In the Indian Penal Code, section 171C which defines undue influence is as follows 171C. 1 Whoever voluntarily interferes or attempts to interfere with the free exercise of any electoral right companymits the offence of undue influence at an election. Without prejudice to the generality of the provisions of sub-section 1 , whoever- a threatens any candidate or voter, or any person in whom a candidate or voter is interested, with injury of any kind, or b induces or attempts to induce a candidate or voter to believe that he or any person in whom he is interested will become or will be rendered an object of Divine displeasure or of spiritual censure. shall be deemed to interfere with the free exercise of the electoral right of such candidate or voter, within the meaning of subsection 1 . A declaration of public policy or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall number be deemed to be interference within the meaning of this section. To appreciate the significance of this definition, reference may also be made to clause b of section 171A which defines electoral right as meaning the right of a person to stand, or number to stand as, or to withdraw from being, a candidate or to vote or refrain from voting at an election. The definition of undue influence also uses the word injury in section 171C 2 a , and this word has also been given a special meaning under the Indian Penal Code, having been defined in section44 as denoting any harm whatever illegally caused to any person in body, mind, reputation or property. In order to decide whether the various allegations made in the two election petitions do companystitute the companymission of the offence of undue influence, it is necessary to understand properly what acts companystitute undue influence as defined in section 171C of the Indian Penal Code. Subsection 1 of section 171C, in general terms, makes any act an undue influence it interferes or attempts to interfere with the free exercise of any electoral Tight, and if it is companymitted voluntarily. The question has arisen what acts can be held to interfere with the free exercise of an electoral right. We are here companycerned with the electoral right of a voter which, according to the definition in s. 171A b , is the right to vote or refrain from voting. Undue influence can be held to be companymitted if the person charged with the offence interferes or attempts to interfere with the free exercise of this right of voting or refraining from voting. When an elector exercises the right of vote, it can be envisaged that he goes through the mental process of first taking a decision that he will vote in favour of a particular candidate and, thereafter, having made up his mind, he has to go and exercise that electoral right by casting the vote in favour of the candidate chosen by him. The language used in section 171C indicates that the offence of undue influence companyes in at the second stage when the offender interferes or attempts to interfere with the free exercise of that choice of voting in accordance with the decision already taken by the voter. It therefore, follows that, if Any acts are done which merely influence the voter in making his choice between one candidate or another, they will number amount to interference with the free exercise of the electoral right. In fact, all canvassing that is carried on and which is companysidered legitimate is intended to influence the choice of a voter at the first stage and that is quite permissible. Once the choice ha,, been made by a voter, there should be numberinterference with the free exercise by him of that choice by actually casting the vote, or, in the alternative, there may be a case where a voter may decide that he will number vote for any candidate at all, but some acts are done which companypel him to cast his vote. It is in such cases that the offence of undue influence will be held to have been companymitted. The language used in the definition of undue influence implies that an offence of undue influence will be held to have been companymitted if the elector, having made up his mind to cast a vote for a particular candidate, does number do so because of the act of the, offender and this can only be if he is under a threat or fear of some adverse companysequence. Whenever any threat of adverse companysequence is given, it will tend to divert the elector from freely exercising his electoral right by voting for the candidate chosen by him for the purpose. In a case where the voter is threatened with an injury as defined in the Indian Penal Code, it has to be deemed under section 171C 2 a that it interferes with the free exercise of the electoral right of the voter and the same applies if the elector is induced or attempt is made to induce him to believe that he or any person in whom he is interested will become or will be rendered an object of Divine displeasure or A spiritual censure. In the first case, under clause a , it is a temporal harm illegally caused to the person, in body, mind, reputation or property, while, in the second case. under clause b , the interference is because of the fear of becoming an object of Divine displeasure or of spiritual censure. There can, however, be cases where the threat may number be of an injury as defined in section 44, .P.C., where the harm caused must be illegal. Cases can arise where there may be numberillegality in the threatened companysequence to the voter and, yet, it may interfere with the free exercise of his right to vote. An instance that can be cited is where a father may threaten to disinherit his son in respect of property solely owned by the father unless his son voted for a particular candidate or refrained from voting for some other candidate. The companysequence of number-compliance with the wishes of the father would be the loss of inheritance to the son which is number an injury as defined in section 44, I.P.C. Such an attempt by the father would clearly amount to exercise of undue influence by him on his son. But, in cases where the only act done is for the purpose of companyvincing the voter that a particular candidate is number the proper candidate to whom the vote should be given, that act cannot be held to be one which interferes with the free exercise of the electoral, right. It has, however, been argued that there may be a case where such virulent propaganda may be carried on against a candidate as may cloud the mind and judgment of the voters and almost companypel them to companye to a decision that they should number vote for that particular candidate. It was urged that, in such a case, it should be held that undue influence was exercised on the voters. In companysidering this proposition, various aspects have to be kept in view. The first is that, if it is held that propaganda adverse to a candidate can amount to undue influence, it wilt be almost impossible to draw a line and differentiate between legitimate propaganda which will amount to undue influence, and that which will number. Then companyes the question of the reverse type of propaganda where a particular candidate is so highly praised that voters are influenced to the extent of companysidering him an excellent person well above all other candidates and the question will be whether such an influence on the mind of a voter can be held to be undue influence. More important than all these aspects is the scheme of the law and the language used in it which, in my opinion, very clearly show that mere propaganda against a candidate cannot be held to be exercise of undue influence. The word free is used in section 171C I.P.C., as qualifying exercise and number as qualifying the word vote. If undue influence had been defined as interference with the exercise of free vote, possibly the definition companyld have been companystrued as indicating that influence brought on the mind of a voter so as to change the manner of his voting by affecting his choice and judgment in selecting the candidate for whom he is going to cast his vote, would be companyprised within undue influence. The word free having been used as qualifying the word exercise gives the indication that the freedom envisaged is to cast the vote in accordance with the choice already arrived at and, if such freedom of casting the vote in that manner is interfered with, the offence of undue influence will be held to have been companymitted. In Words and Phrases, Permanent Edition, Vol. 17A by West Publishing Company, the meaning of the word free in various companytexts accepted in America has been given, and the relevant meaning which can assist is in the following words Within the companystitutional provision, elections are free when the voters are subjected to numberintimidation or improper influence, and whenever every voter is allowed to vote as his own judgment and companyscience dictate. This meaning clearly indicates that the question of freedom actually arises at the stage when a voter has already exercised his judgment and companyscience, has decided which candidate he will vote for, and is then allowed to cast his vote freely without any interference in the form of intimidation or improper influence. A very important aspect in companysidering this argument is that whatever meaning is given to the expression undue influence in the Act will also apply when interpreting the provisions of the Indian Penal Code, because the Act imports the definition of undue influence from section 171-C of the Code. In the Indian Penal Code, a new Chapter IXA was introduced by the Indian Elections Offences and Inquiries Act 39 of 1920. The statement of objects and reasons attached to the Bill which culminated in that Act explained this provision by stating that undue influence at an election is defined as the voluntary interference or attempted interference with the right of any person to stand, or number to stand, or withdraw from being, a candidate, or to vote or refrain from voting. This companyers all threats of injury to person or property and all illegal methods of persuasion and any interference with the liberty-of the candidates or the electors. The language used in section 171C was, thus, intended to companyer only cases where the interference companyes at the stage when the elector must have liberty to cast his vote freely, having already made up his mind how that vote is going to be cast. It is interference at this stage that was envisaged as amounting to undue influence. The subject of influence at the stage of making a choice was dealt with in Chapter IXA of the Indian Penal Code under a separate and distinct provision which is companytained in section 17 1 G and is as follows Whoever with intent to affect the result of an election makes or publishes any statement purporting to be a statement of fact which is false and which he either knows or believes to be false or does number believe to be true, in relation to the personal character or companyduct of any candidate, shall be punished with fine. This section clearly recognises that, at elections there is bound to be propaganda in which candidates or their supporters may be issuing statements so as to influence the voters against their rival candidates, and it limits the prohibition by law to only those statements of fact which are false, or believed to be false, or believed number to be true, in relation to the personal character or companyduct of any candidate. Propaganda can be number only by attacking the personal character or companyduct of a candidate, but even his political or public character and activities. On the face of it, section 171G envisages that propaganda of the latter type will number be treated as an offence. Only when the propaganda is in the form of false statements of fact relating to the personal character or companyduct of the candidate that the law will punish the person indulging in it by making him liable to payment of fine. These false statements about the personal character or companyduct of the candidate may, of companyrse, be scurrilous and foul, but, even then, the offence companymitted would fall under section 171G, P.C., which makes the offence punishable with fine only. On the other hand, an offence of undue, influence as defined in section 171C, I.P.C., has been made punishable under section 171F, I.P.C., with imprisonment of either description for a term which may extend to one year or with fine. or with both. If it is held that false propaganda against personal character or companyduct of a candidate can amount to undue influence, the person indulging in that propaganda would become liable to punishment under section 171F, I.P.C., which has been companysidered a more serious offence by being made punishable with imprisonment in addition to, or, in the alternative, with fine. This interpretation would thus make section 171G, I.P.C., totally ineffective and otiose. If the false statements as to personal character or companyduct are held to be punishable under section 171F as companystituting offence of undue influence, there would be numberpoint in prosecuting the same person for the less serious offence under section 171G. In fact, section 171G would be fully companyered by section 171F and, companysequently, the interpretation sought to he urged in these petitions has to be rejected. It is true that, in the Act, there is numberprovision indicating that Publication by a candidate, or by any other person with his companynivance, of a statement of fact which is false in relation to the personal character or companyduct of another candidate will be deemed to be a companyrupt practice on the companymission of which an election can be declared void. Such omission in the Act cannot, however, be a good reason for enlarging the meaning of the offence of undue influence so as to hold that an election of a President or Vice- President must also be set aside on such a ground. It may be numbericed in this companynection that, in the Representation of the People Act, 1951, there is a specific provision companytained in section 123 4 laying down that a companyrupt practice is companystituted by the publication by a candidate or his agent or by any other person, with the companysent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or doe,. number believe to be true, in relation to the personal character or companyduct of any candidate, or in relation to the candidature, or withdrawal, or any candid-ate, being a statement reasonably calculated to prejudice, the prospects of that candidates election. In the Representation of the People Act, 1951 also, undue influence is defined in almost the same language as that companytained in section 17 IC. P.C. In that Act, therefore, an election can be declared void number only on the ground of companymission of the companyrupt practice of undue influence, but also on the ground of publication of false propaganda as to the personal character or companyduct of a candidate. Parliament, however, chose number to include any such provision in the Act which was passed when the Representation of the People Act. 1951 had already been enacted and enforced. The Court is number companycerned with the reasons which weighed with the Parliament in making such an omission in the Act when a.similar provision had been ept in the earlier enactment in respect of elections to the Central and State Legislatures. The omission may be deliberate or accidental, but, in either case, it is number for the companyrts to attempt to fill up this gap by enlarging the meaning to be given to the expression undue influence which is the companyrupt practice included in the Act as a ground for setting aside the election. It is clear from the scheme of Chapter IXA of the Indian Penal Code that false propaganda as to the personal character and companyduct of a candidate was created as a separate offence and the definition given in section 171C of undue influence was number intended to lay down that such propaganda will amount to interference with the free exercise of electoral right so as to companystitute undue influence. The only case of this Court dealing with the question of undue influence under the Act is reported in Shri Baburao Patel Others v. Dr. Zakir Husain Others 1 , where the, Court had to companysider the distinction between canvassing and exercise of undue influence and held It is difficult to lay down in general terms where mere canvassing ends and interference or attempt at interference with the free exercise of any electoral right beings. That is a matter to be determined in each case but there can be numberdoubt that, if what is done is merely canvassing, it would number be undue influence. As subsection 3 of s. 171-C shows, the mere exercise of a legal right without intent to interfere with an electoral right would number be undue influence. The Court, after reviewing the relevant case law under the Representation of the People Act, then proceeded to hold It will be seen from the above review of the cases relating to undue influence that it has been companysistently held in this companyntry that it is open to Ministers to canvass for candidates of their party standing for election. Such canvassing does number amount to undue influence but is proper use of the Ministers right to ask the public to support candidates belonging to the Ministers party. It is only where a Minister abuses his position as such and goes beyond merely asking for support for candidates belonging to his party that a question of undue influence may arise. But so long as the Minister only asks the electors to vote for a particular candidate belonging to his party and puts forward before the public the merits of his candidate it cannot be said that by merely making such request to the electorate the Minister exercises undue influence. The fact that the Ministers request was addressed in the form of what is called a whip is also immaterial so long as it is clear that there is numbercompulsion on the electorate to vote in the manner indicated. In that case, the Court thus envisaged that the question of undue influence will arise if there is some sort of companypulsion on the electorate to vote in the manner indicated by the person alleged to 1 1968 2 S.C.R. 133. have companymitted that companyrupt practice, and a question of such companypulsion can obviously arise only when a voter, having made his choice as to the person for whom he will cast his vote, is under some pressure to vote for another candid-ate owing to the undue influence exercised on him. The nature of interference, which would companystitute undue influence, was further clarified when dealing with the letters issued by the Chief Whip of the Congress Party requesting members number to cast their second preference vote, by stating - Such a request or advice does number, in our opinion, interfere with the free exercise of their electoral right for the electors still would be free to do what they desired in spite of the advice. The Court, thus, envisaged that undue influence is exercised when an elector is number free to do what he desires, while influencing his desire will number be exercise of undue influence. It has already been indicated above that the scheme of Chapter IXA of the Indian Penal Code and section 123 of the Representation of the People Act is quite similar inasmuch as, in both these enactments, undue influence is defined in almost identical language and the publication of false statements as to the personal character of a candidate has been separately made either a criminal offence or a companyrupt practice in practically the same language. Consequently, some assistance can be derived from the interpretation that has been given to the provisions companytained in section 123, subsection 2 and 4 of the Representation of the People Act, 1951. Dealing with this aspect in the case of Rain Dial v. Sant Lal and Others 1 , this Court first pointed out that the law in England relating to undue influence at elections is number the same as the law in India and, companysequently, proceeded to interpret the law here without taking into account the principles laid down in England. In that case, the question arose whether, what a religious leader had done by issuing a Hukam or Farman. amounted to undue influence or number. The Court held- There cannot be the least doubt that a religious leader has the right freely to express his opinion on the companyparative merits of the companytesting candidates and to canvass for such of them as he companysiders worthy of the companyfidence of the electors. In other words, the religious leader has a right to exercise his influence in favour of any particular candidate by voting for him and by canvassing votes of others for him. He has a right to express his opinion on the individual merits of the candidates. Such a companyrse of companyduct on his part will only be a use 1 1959 Supl. 2 S.C.R. 748. of his great influence amongst a particular section of the voters in the companystituency but it will amount to an abuse of his great influence if the words he uses in a document, or utters in his speeches, leave numberchoice to the persons addressed by him, in the exercise of their electoral rights. If the religious head had said that he preferred the appellant to the other candidate, because, in his opinion, he was more worthy of the companyfidence of the electors for certain reasons, good, bad or indifferent, and addressed words to that effect to persons who were amenable to his influence, he would be within his rights, and his influence,however great, companyld number be said to have been misused. But in the instant case, as it appears, according to the findings of the High Court, in agreement with the Tribunal, that the religious leader practically left numberchoice to the Namdhari electors, number only by issuing the hukam or farman, as companytained in Ext. P. 1, quoted above, but also by his speeches, to the effect that they must vote for the appellant, implying that disobedience of his mandate would carry divine displeasure or spiritual censure, the case is clearly brought within the purview of the second paragraph of the proviso to section 123 2 of the Act. In that case, thus, the Court envisaged. that the Hukam or Farman issued by the religious leader was a mandate, the disobedience of which would carry divine displeasure or spiritual censure, and it was for this reason that it was held that companyrupt practice of undue influence had been companymitted. In the case of Inder Lal v. Lal Singh 1 , this Court explained the scope and purpose of sub-s. 4 of section 123 of the Representation of the People Act by pointing out that. for the protection of the companystituency against acts which would be fatal to the freedom of election, the statute had provided for the inclusion of tile circulation of false statements companycerning the private character of a candidate amongst companyrupt practices, and dissemination of false statements about the personal character of a candidate had been companystituted into a companyrupt practice. This companyrupt practice was envisaged as separate and distinct from the companyrupt practice of undue influence mentioned in section 123 2 of that Act. In the case of Lalrouktung v. Haokholal Thangjom and Another 2 , this Court dealt with a case where there had been an assault close to the polling station after certain pamphlets had been issued, wherein threats were freely canvassed and exhorta- 1 1962 Supl. 3 S.C.R. 114. Civil Appeal No. 1315/68 decided on 9.1.69. tions made that those, who opposed the candidates supported by the two organisations which issued the pamphlets , would number be forgotten number spared. The Court then proceeded to hold - In the light of propaganda of this nature carried on before the polling days, it is, impossible to view the assault as an isolated incident number can it be legitimately argued that the companyclusion of the Judicial Commissioner that it was a culmination of those threats was either an unreasonable or an unwarranted companyclusion. There can be numberdoubt that such rowdyism at a polling station was bound to deter voters from companyning to the polling station to exercise freely their franchise. We have numberdoubt that the assault by the appellants polling agent attracted section 123 2 , proviso a , and that also rendered the election void. This was, again a case where the exercise of their electoral right by the voters was interfered by physical act of assault and threat on voters who intended to vote for the rival candidate. The last case of this Court which may be referred is the decision in Manubhai Nandlal Amersey v. Popatlal Manilal Joshi and Others 1 , in which the effect of a speech came up for companysideration and it was held The actual effect of the speech is number material Corrupt practice is companymitted if the, speech is calculated to interfere with the free exercise of electoral right and to leave numberchoice to the electors in the matter In companysidering the speeches, the status of the speaker and the character of the audience are relevant companysiderations. This case also, thus, envisaged that there must be some element of companypulsion on the voter to vote in a particular manner before the act said to be a companyrupt practice can be held to amount to undue influence. Coming to the decisions of the High Courts, the first case that may be cited is the decision of the Orissa High Court in Radhakanta Mishra v. Nityananda Mahapatra and Another 2 . Barman. J. explained undue influence in the following words - A voter must be able to freely exercise his electoral right. He must be a free agent. All influences are number necessarily undue or unlawful. Legitimate exercise of influence by a political party or association or even an A.I.R 1969 S.C. 734. 2 19 E.L.R. 203. individual should number be companyfused with undue influence. Persuasion may be, quite legitimate and may be fairly pressed on the voters. On the other hand, pressure of whatever character, whether acting on the fears, threat, etc., if so exercised as to over-power the volition without companyvincing the judgment is a specie of restraint which interferes with the free exercise of electoral right. In such an atmosphere, the free play of the electors judgment, discretion or wishes is overborne and this will companystitute undue influence, though numberforce is either used or threatened. It is number necessary to establish that actual violence had been used or even threatened. Methods of inducement which are so powerful as to leave numberfree will to the voter in the exercise of his choice may amount to undue influence. Imaginary terror may have been created sufficient to deprive him of free agency. He, thus, distinguished between influence which is exercised for companyvincing the judgment of a voter, and influence the result of which is that the free play of the electors judgment, discretion or wishes is overborne and the elector is left numberfree will to exercise his choice. In this decision, thus, the distinction, as indicated above, is clearly brought out. In that case, however, a picture with a caption had been published as a part of a companyer of booklet. and it was held that its publication amounted to exercise of undue influence. The reason is indicated when the learned Judge, dealing with this poster, held - The picture with the caption, as it stood, was intended to be made catchy with an ulterior motive and was deliberately published in that asked form in order to create a feeling of terror, fear and hatred and was such a companypelling appeal to the mind of the voters as to amount to interference with the free exercise of voters electoral right. The picture in question showed a dead boy with a caption in Oriya which, translated in English, was to the effect Do number vote for the Congress who killed Sahid Sunil. That picture, thus, did number companytain any false statement or representation as to the personal character of a candidate but Barman, J., held The picture of the dead boy with the caption was a direct charge against the Congress that it killed the deceased boy. This was a misrepresentating of fact. It was as a result of firing by the police that the boy unfortunately got involved. We do number know whether the Congress Party took a stern view of the firing, whether the Congress Party itself companydemned the firing, and whether ultimately those responsible for the firing were reprimanded and punished for the unfortunate incident. The catchy caption that the Congress killed the boy was false representation made by the respondent No. 1 with intent to strike terror into the mind of the voters and thereby to interfere with the free exercise of electoral right of such terrorstricken voters. The picture with the caption was a distortion of a situation for political ends done with the intention as aforesaid. It was an artful device to catch the imagination of the voters. It terrorised the voters and was likely to create in their mind a feeling of terror, fear, hatred or strong prejudice against the Congress. In the caption under the dead boys picture was a veiled threat to the voters that if they voted for the Congress who were capable of killing, then such Congress, so retained in power, would again,- as it actually did in the past, resort to such killing of men in which the voters themselves or their children might also be killed in the same way as it was openly demonstrated by the picture of the dead boy with the caption. It at least did create or was likely to create or had the tendency to create terror and an unknown fear in the mind of the voters. The picture of the dead boy with the caption frightened the voters or was likely to frighten them and it was intended to overawe voters which interfered or was likely to interfere or had the tendency to interfere with the free exercise of electoral right of the voters. It will, thus, be seen that the main reason for holding that the publication of the picture amounted to exercise of undue influence was that it created terror and fear in the minds of voters of personal harm to themselves or their children in case they voted for the Congress candidate. The publication of the picture was number field to be undue influence or interference with the electoral right because it companytained false propaganda against the candidate or the Congress Party, but because of the element of companypulsion which was envisaged as arising in the minds of the voters number to vote for the Congress because of the fear of companysequences which might be listed on themselves or their children in case they vote for the Congress. Barman, J., in this companynection, also referred to the decisions of Election Tribunals in Sardul Singh v. Hukam Singh 1 , and Jujhar Singh v. Bhairon Lall 2 and agreed with tile principles laid down in those cases. I shall indicate later the 1 6 E.L.R. 316. 2 7 L.R. 45-. ratio of those two decisions. The other two Judges, companystituting the majority, differed from Barman, J., and held that the publication of the picture did number amount to undue influence, because, in their opinion, numberinference companyld be drawn that the publication of this picture was intended to create a fear in the minds of the voters. Rao, J., dealt with the submission of Mr. Rath, the companynsel, that a look at the photo will make the voter think that, if he votes for the Congress Party during whose office the killing took place, he would be similarly killed and therefore it created a fear in his mind and thus interferes with the free exercise of the electoral right. He rejected it by saying that, in his opinion, this was a farfetched argument. He further held - The picture simply represents Sunil De after being shot at by the, police firing with the caption underneath Do number vote for the Congress who killed Sahid Sunil. It does number say that, if the voter give their votes for the Congress, all the voters or some of them would be shot as Sunil De. Further, the shooting of Sunil De is known to everybody and that is on account of police firing in companynection with the States Reorganisation Committee Reports disturbances, the voters therefore cannot be influenced to think by publication of this poster that if they voted for the Congress they would be shot at like that. It is also significant that there is numberhing Mentioned about this poster in the election campaign in the booklet on whose companyer the photo is printed. The respondent No. 1, therefore, companyld number have intended to cause fear in the minds of the voters by publication of exhibit 3 in order to interfere with the free exercise of their votes. Das, J., dealt with this aspect as follows Nothing has been stated in the body of exhibit 3 relating to this picture. The picture simply represented a dead person after being shot by the police firing with the caption Do number vote for the Congress who killed Saheed Martyr Sunil. Nowhere it was stated if the voters gave their votes to the Congress they would be shot at as Sunil. The further fact is that Sunil De was shot at by the police firing in companynection with the disturbance arising out of the recommendations of the States Reorganisation Commission of which the electors had known before. Thus, the voters cannot be said to have been influenced to think that if they voted for the Congress they would be shot at like Sunil. Hence, in my opinion, the respondent No. 1 companyld number have intended to cause any fear in the minds of the voters by the above publication to companystitute interference with the free exercise of. the electoral right of the voters. The decisions by these two Judges are, of companyrse, of numberhelp but, its indicated earlier, even the decision of Barman, J., is in line with the view taken above and does number indicate that mere false propaganda as to the personal character of a candidate or even relating to the party sponsoring the candidate can amount to the companyrupt practice of undue influence. The next case which may be cited is another decision of the Orissa. High Court in Abdul Rahiman Khan v. Radha Krushna Biswas Roy 1 . In that case, the successful candidate had published a poem and the question arose whether the publication of that poem amounted to exercise of undue influence. The Court first. in general terms, dealt with the scope of undue influence by saying- Section 1 23 of the Act is rather wide in its term and companytemplates four distinct forms of interference with the free exercise of any electoral right, viz., direct interference. indirect interference, direct attempt at interference and indirect attempt at interference. There is numberhing in the definition that such interference or attempt at interference should be by any method of companypulsion. Evidently, the offence includes such interference or attempt to interfere by any-method, and it definitely includes the method of inducement wherein there may number he any companypulsion at all. The inducement again must be of such powerful type as would leave numberfree will to the voter in the exercise of his electoral right. This general explanation does number appear to be inconsistent with the view taken above, because it was held that, even if there be numbercompulsion at all, the inducement must be of such powerful type as would leave numberfree will to the voter-in the exercise of his electoral right. The freedom of will envisaged, obviously, is to vote in accordance with his choice. On the facts in that case, it was found that, in the poem, there were threats against Raja of Kalahandi in whom the defeated candidate was interested. After referring to the Raja of Kalahandi, the objectionable portion read is follows Without any companysideration for your own and others. you acted as a devil. Would anybody number be able to save you if you are beaten mercilessly ? Having done all the above mischief, number you are appealing to the electors for their vote as a shameless person. If there A.I.R. 1959 Orissa 183. were a grain of shame left in you would number have progressed at all. You are a thief and a Badmas and you should number remain our land. You who belong to, the Ganatantra party are only fit for the gallows. These words, clearly, companytained a threat to the life and were, therefore, rightly held to amount to exercise of undue influence. Similarly, another portion was to the following effect The leader of your Party was making money by selling widows is well-known to the raiyas. Since there is number a bit of sense left in you are number seeking votes of these raiyats, of Koraput. They will numberlonger be dissuaded by your words. It was further stated that the raiyats of this Constituency are bound to take revenge on you. How dare you ask for their votes ? Again, the Court, in holding. that these publications amounted to exercise of undue influence, was fully justified, because there were clear threats against the life of the candidate. The only other case of a High Court that requires to be numbericed is the decision. of the Punjab High Court in Amir Chand Tota Ram, Delhi v. Smt Sucheta Kriplani 1 . The Court expressed its view by holding - The legal phrase undue influence denotes something legally wrong or violative of a legal duty. In order to establish undue influence, it must be proved that the influence was such as to deprive the person affected of the free exercise of his will. It must amount to imposing a restraint on the will of another whereby he is prevented from doing what he wishes to do or is forced to do which he does number wish to do. An advice, argument persuasion or solicitation cannot companystitute undue influence. Honest intercession, even importunity, falls short of companytrolling a persons free exercise of his will. A persuasion, which leaves a person free to adopt his own companyrse, is number undue influence. Otherwise a suggestion or an entreaty from somebody, held in esteem, companyld be treated as undue influence. In the absence of proof that a person has been, in companysequence of the alleged influence, deprived of free agency numberquestion of there being an undue influence arises. It is number objectionable to exercise an influence by acts of kindness or appeals to the free reason and understanding. So long as the free agency of the other A.I.R. 1961 Pb. 383. person is number prevented or impaired by obtaining a domination over the mind of another, it cannot be deemed as an exercise of an undue influence. The essence of undue influence is that a person is companystrained to do against his will, but for the influence he would have refused to do if left to exercise his own judgment. It has to be shown that a persons volition had thus been companytrolled by another whereby he companyld number pursue his own inclination, being too weak to resist the importunity and in view of the pressure exercised on his mind he companyld number act intelligently and voluntarily and had become subject to the will of the other who had thus obtained dominion over his mind. This exposition of the scope of undue influence is also in line with the view taken above. It envisages that the companyrupt practise of undue influence is companymitted when a person is companystrained to do against his will. and is unable to act in accordance with his judgment. Such a position can only arise if the influence is brought on the person companycerned after he has already formed his judgment and decided how he will exercise his electoral right. Propaganda for the purpose of influencing the judgment, even if undesirable, cannot be held to be undue influence, Coming to the cases of Election Tribunals, the earliest case that needs companysideration is the decision in Sardal Singh Caveeshar v. Hukam Singh and Others supra . In that case, the Tribunal held It is number necessary that there should be any actual threat or physical companypulsion held out, but the method of inducement as may be adopted should companyvey to the mind of the person addressed that number-compliance with the wishes of the person offering the inducement may result in physical or spiritual harm to himself or to any other person in whom he is interested. Some fear of harm resulting from numbercompliance with the request, thus, seems to companystitute an essential element in undue influence. On behalf of the petitioners, emphasis was laid on the decision of the Election Tribunal in Jujhar Singh v. Bhairon Lall Others supra . In that case, it was held It may be observed that an attempt to interfere by the method of companypulsion is number necessary and that even the method of inducement may be sufficient, provided it be of such a powerful type as would leave numberfree, will to the voter in the exercise of his choice. In other words, actual physical companypulsion is number necessary, but, positive mental companypulsion may be enough to give rise to an undue influence. After expressing this view, the Tribunal proceeded to hold that the publication of a particular poster amounted to exercise of undue influence. Referring to it, the Tribunal held - The poster was, therefore, clearly designed number only to catch voters for respondent No. 1, but, also, to overawe voters, the majority of whom were men of numberbetter intelligence than ordinary illiterate villagers and to create a feeling of positive prejudice, if number of terror as well, in their minds against the petitioner. Reliance was placed primarily on the last part of this quotation where the Tribunal held that the creation of a feeling of positive prejudice in the minds of the voters can amount to undue influence.But this part of the sentence has to be read in companyjunction with the earlier part where a clear inference was drawn that the poster was clearly designed to overawe the voters. This was the reason why the Tribunal held that the publication of the poster amounted to undue influence, though, when defining undue influence in general, the Tribunal had clearly stated that the inducement must be of such a powerful type as would leave numberfree will to the voters in the exercise of his choice. In stating this principle, the Tribunal was clearly referring to the stage when, having made his choice, the voter wants to exercise it in accordance with his free will and that free will is interfered with. The Tribunals decision is also, thus, in line with the view taken above. The next decision of a Tribunal, on which reliance has been placed is in Radha Krishna Shukla and Another v. Tara Chand Maheshwar and Others 1 but that decision appears to be of numberhelp as, in that case, replying on a English decision, the Tribunal held that, before a threat can be said to amount to undue influence, the question must be put, was it a serious and deliberate threat uttered with the intention of carrying it into effect, and proceeded to apply that test to the case before it. The Tribunal, therefore, dealt with a situation where there was clearly a threat to the voters. but even the threat in question companytained in the slogan was held number to companystitute companyrupt practice, as there was numberhing to show that the purpose of the slogan was to directly or indirectly interfere with any persons free exercise of his electoral right. In Amir Chand v. Smt. Sucheta Kripalani 2 , the Tribunal, after quoting the definition of undue influence companytained in E.L.R. 378. 2 18 E.L.R. 209. section 123 2 of the Representation of the People Act, 1951, held The definition, numberdoubt, is in general terms but it has an element of companypulsion and it is an abuse of influence that will companystitute undue influence. These remarks also do number go companytrary to the view taken above. The last case that requires numberice is the decision of a Tribunal in Kataria Takandas Hemrai v. Pinto Frederick Michael 1 in which it was said A candidate, or as a matter of fact, any person has every right to persuade people to vote in his favour at the election and in that respect he is further entitled to be even critical of the policy and the acts of the rival party or its candidate and that way it may as well be legitimate for them to influence the voters, provided they did number transgress the legitimate bounds of criticism. It is only undue influence which can be taken exception of, and, even though that term is wide enough to companyer any interference with the exercise of the electoral right, one can justifiably call any act as an interference only when it has in it an element of companypulsion so as to give way to free thinking in the exercise of the electoral rights of the voters. This case also, therefore, envisaged some element of companypulsion as a result of which a voter is unable to exercise his electoral right in accordance with his judgment and choice. None of the decisions rendered so far by the Courts or Tribunals in India, thus, go companytrary to the view expressed above and, if at all, a majority of them are in line with it. It is in the light of this interpretation of what undue influence means that this Court has to proceed further to see which of the allegations made in the present petitions can amount to charges of undue influence and whether they have been established so as to vitiate the election. The principal charge of undue influence, on which a mass of evidence has been led by the petitioners, relates to the publication of a pamphlet which companytained scurrilous and vulgar allegations as to the personal character of Shri Sanjiva Reddy. It is number necessary for me to set out the details of the companytents of that pamphlet. It is sufficient to mention that, apart from allegations against Shri Sanjiva Reddy, there were numberother allegations in it which companyld amount to a threat of any adverse companysequence to any voter in case he cast his vote in favour of Shri Reddy. Even 1 18 E.L.R. 403. in the evidence, numberwitness stated that, as a result of reading this pamphlet, he apprehended any adverse companysequence either to himself or to anyone in whom he may be interested. No doubt, some witnesses stated that, on reading the pamphlet, they felt that, if Shri Sanjiva Reddy is elected as President, the Rashtrapati Bhavan may become a brothel but that also does number amount to a threat of a nature which would companystitute undue indence as explained above. Consequently, the publication of this pamphlet cannot companystitute undue influence, so that it is totally unnecessary to go into the question whether it was printed, published and distributed at all if so, by whom, and, further, whether such printing, publication or distribution was or was number with the companynivance of the respondent. As I have held earlier, in the Act there is numberprovision made for setting aside election on the ground of publication of false statements as to the personal companyduct or character of a candidate even if it affects his prospects in the election, so that numberevidence need have been taken with regard to the printing, publication or distribution of this pamphlet or with regard to the question as to whether-there was any companynivance by the respondent in its printing, publication or distribution. The challenge to the election of the respondent based on this petition fails on this preliminary ground, However, I may add that, having had the benefit of reading the judgment proposed to be delivered by my brother Sikri, J., on these issues, I agree with his assessment of the evidence tendered by the parties and the findings recorded by him. These findings of fact are to the effect that, though the pamphlet was distributed by post and in the Central Hall of Parliament, it has number been proved that this distribution was with the companynivance of the respondent or that the distribution materially affected the result of the election, Consequently, even on the assumption that the publication of this pamphlet companyld companystitute undue influence, the election of the respondent is number liable to be set aside. Apart from this ground based on the pamphlet, a number of other instances of exercise of undue influence were also cited and relied upon in these two election petitions. These grounds have also been dealt with by my brother Sikri, J., and some by my brother Mitter, J. I agree with their reasons and findings for holding that numbere of these charges of undue influence has been established, so that the challenge to the election of the respondent on the ground of exercise of undue influence fails altogether. I also agree with the order directing parties to bear their own companyts and the reasons for that order given by my brother Sikri, J., in his judgment. Issue No. 7 in Election Petition No. 1 of 1969, Issue No. 9 in Election Petition No. 4 of 1969, and Issue No. 11 in Election Petition No. 5 of 1969. As a result of the findings on other issues, the petitioners in numbere of these petitions are entitled to any relief, as numberground has been made out for declaring the election of the respondent as void. Mitter J. I have had the benefit of reading the judgments of my companyleagues. The facts leading up to the filing of these petitions and the issues settled therein have been set out in the judgement of my learned companyleague, Bhargava, J. I am in agreement with him in his companyclusion on issues other than issue No. 4 in Election Petitions 4 and 5 of 1969. I regret to have to differ from my other companyleagues on this issue. As Petition No. 5 is more companyprehensive than Petition No. 41 prefer to refer to the allegations made in Petition No. 5 alone. Leaving out of account the technical grounds on which the election has been challenged, the petitioners have asked for a declaration that the election be declared void on the following grounds a that the offence of undue influence at the election had been companymitted by the returned candidate hereinafter referred to as the respondent and by his supporters with the companynivance of the respondent as mentioned in paragraph 8 a and various sub-paragraphs of 13 b and c of the Petition. The result of the election was materially affected by reason of the offence of undue influence at the election having been companymitted by persons mentioned in paragraph 13 of the petition. Undue influence is alleged to have been companymitted in diverse ways on various persons details whereof are given hereinafter. Paragraph 13 of Petition No. 5 purports to give a summary of the events which are alleged to have formed the background in which the offences were said to have been companymitted. Put briefly they are as follows After the demise of the late Dr. Zakir Hussain, the Prime Minister of India who was also an influential leader in the, Congress Party took the view that the respondent who was then the Vice-President of India should be adopted as the Congress candidate for the office which had fallen vacant. This was number acceptable to all her companyleagues in the Congress Parliamentary Board hereinafter referred to as the Board-a body which had in the past selected the partys candidate for the office of the President. The companytroversy which thus arose companyld number be settled because of want of unanimity of opinion and the matter was left to be decided at the Bangalore Session of the All India Congress Committee hereinafter referred to as the Committee to be held in July 1969. No companysensus being attained at the meeting of the Board held inBangalore on July 12, 1969 the matter was decided by voting. The Prime Minister and Sri Fakhrudin Ali Ahmed voted for Sri Jagjiwan Ram while Sri Morarji Desai, Sri Y. B. Chavan, Sri S. K. Patil and Sri Kamaraj voted in favour of Sri N. Sanjeeva Reddy. The decision of the Board greatly upset the Prime Minister and she then and there threatened the members of the Board that it would lead to serious companysequences and that she should number have been over-ruled in that manner. The official announcement of the selection of Sri Sanjeeva Reddy as Congress candidate for the office of the President of India was made on 13th July 1969 and on the same day the respondent who was then acting as the President of India called a Press companyference at Rashtrapati Bhavan whereat he announced his candidature for the office of the President. He issued a statement companydemning the selection of Sri Sanjeeva Reddy as based on partisan companysiderations and emphasised that a candidate for the highest office in the land should possess character, integrity patriotism, experience and a good record of service and sacrifice. According to the petitioner there was insinuation that the above requisite qualifications were lacking in Sri Sanjeeva Reddy. Being upset by the decision of the Board, the Prime Minister without any companysultation with her companyleagues in the Cabinet advised the Acting President of India that she would withdraw the Finance portofolio from Sri Morarji Desai. Her advise being accepted Sri Morarji Desai was relieved of his portfolio. She followed it Lip with the promulgation of the Bank Nationalisation Ordinance, a day before Parliament was to companymence its session. This Ordinance was signed by the respondent acting as President. On the 22nd July 1969 the Prime Minister proposed Sri Sanjeeva Reddy as a candidate for the office of the President of India which was duly seconded by Sri Swaran Singh, a Cabinet Minister. The Prime Minister however expressed difficulty in issuing a written appeal in support of the candidature of Sri Sanjeeva Reddy. At a meeting of the Board held on August 6, 1969 there was a joint address by the Prime Minister and the Congress President, Sri Nijalingappa, in support of Sri Sanjeeva Reddys candidature. At this meeting the Prime Minister stated that she stood by the decision of the party while on his part Sri Nijalingappa said that he had been in companytact with leaders of various opposition parties, namely, the S.P., the S.S.P., the Jan Sangh, B K.D. and others and that the response in favour of Sri Sanjeeva Reddy had been encouraging. On August 9, an anonymous pamphlet in cyclostyled form and a printed pamphlet both without the name of the publisher or the printer were published by free distribution among the members of the electoral companylege for the Presidential election. In this the leaders of the party like Sri S. K. Patil, Sri Atulya Ghosh and others were castigated as self-seekers who had tried to become virtual dictators and Sri Sanjeeva Reddy who had been selected by these people was described as a companyrupt and immoral person. The pamphlet charged Sri Sanjeeva Reddy number only with lack of probity but as having been guilty of gross misdemeanour towards members of the other sex on a number of occasions, culminating in the statement that if he were to become the President he would turn Rashtrapati Bhavan into a harem, a centre of vice and immorality. Not satisfied with what the Prime Minister had said at the Congress Parliamentary meeting on August 6, Sri Nijalingappa requested her specifically on August 9 to, issue an appeal to the members of the party to vote and work for the success of the Congress candidate. The Prime Minister avoided doing this and merely said that people should abide by the decision of the Board. This was followed by certain companyrespondence by and between Sri Fakhrudin Ali Ahmed and Sri Jagjiwan Ram jointly on the one hand and Sri Nijalingappa on the other, as also by and between Sri Nijalingappa and the Prime Minister from August 11 to August 15. The companyrespondence showed an open cleavage between the members of the party and it became clear that the Prime Minister and her companyleagues in the Cabinet and their supporters made the issue of the success at the election by defeating the group which opposed her at the meeting of the Board on July 12, as one of prestige and political survival of the Prime Minister. Against the above background the offence of undue influence was said to have been companymitted by the returned candidate and some persons named and unnamed and described as the workers and supporters of the respondent with his companynivance by voluntarily interfering and attempting to interfere with the free exercise of the electoral rights of the candidates and the electors in general and some of them named in particular. According to paragraph 13 b ii of the petition Sri S. Nijalingappa, Sri S. K. Patil, Sri K. Kamaraj, Sri Morarji Desai and Sri Y. B. Chavan, electors at the election were threatened by the Prime Minister on the 12th July at Bangalore with serious companysequences with the object of unduly influencing them so as to make them change their decision to numberinate Sri Sanjeeva Reddy as their candidate. The threat is alleged to have been repeated subsequently on a number of occasions. It was also said to be a direct attempt Lo dissuade Sri Sanjeeva Reddy from standing as a candidate. In paragraph 13 b iii of the petition it was stated that with the object of interfering with the free exercise of the electoral rights of Sri Sanjeeva Reddy, Sri Nijalingappa, Sri Kamaraj and others, electors at the election, supporters of the respondent viz., Sri Jagjiwan Ram, Sri Yunus Saleem, Sri Sashi Bhushan, Sri Krishna Kant, Sri Chanresekhar, Sri Jagat Narain, Sri Mohan Dharia and Sri M. Banerjee in particular and other supporters and workers of the respondent in general, with the companysent and companynivance of the respondent published by free distribution a pamphlet, annexure A-38 to the petition, in Hindi and English, in cyclostyled form as well as in printed form in which serious allegations, as already numbered, were made amounting to the companymission of undue influence upon the persons named within the meaning of s. 171-C I.P.C. According to paragraph 13 b iv of the petition this pamphlet was distributed from 9th to 16th August among all the electors of the electoral companylege for the Presidential election. It was distributed in the Central hall of Parliament by the abovenamed persons i.e. Sri Jagjiwan Ram and others. A large numbers of electors were asked to read the companytents of the pamphlet, and were also asked to say whether they would vote for such a debaucher and companyrupt man. An instance of this is given in paragraph 13 b iv of the petition Sri Yunus Saleem approaching Abdul Gani Dar, one of the petitioners and talking to him as above in the presence of other members of Parliament. The petitioner, Sri Abdul Ghani Dar, took strong exception to what was going on and wrote a letter to the respondent endorsing a companyy thereof to the Prime Minister and Sri Humayun Kabir requesting the respondent to companydemn those who had published the pamphlet and make a public statement dissociating himself from and denouncing the publishers of the pamphlet. The respondent himself during his tour of the companyntry addressed pressmen and members of the public at various places and repeatedly stated that a man of character and integrity should have been selected. According to paragraph 13 c i the supporters of the respondent, namely, the Prime Minister and some of her Cabinet companyleagues like Sri Jagjiwan Ram, Sri Fakhrudin All Ahmed, Sri Yunus Saleem, Dr. Karan Singh, Sri Dinesh Singh, Sri Swaran Singh, Sri I. K. Gujral, Sri S. S. Sinha, Sri K. Shah and Sri Triguna Sen misused their position for furthering the prospects of the returned candidate by companytacting a large number of electors on the telephone and openly telling them that if the electors did number vote for the respondent they would lose all the patronage which they would otherwise be given. Electors were called by some of the abovenamed Ministers at their official residences and offices in Delhi and undue influence brought to bear upon them by ordering them to vote for the returned candidate. According to paragraph 13 c iii of the petition Sri Fakhrudin Ali Ahmed and Sri Yunus Saleem threatened the Muslim electors that Sri Sanjeeva Reddy was in fact a candidate of the Jan Sangh Party and if he was elected the fate of the Muslim companymunity in India would be in danger. This undue influence was exercised over all the Muslim electors in the companyntry and specially those in Parliament. An instance of this is given as having taken place between Sri Yunus Saleem and Sri Abdul Ghani Dar. The workers and supporters of the respondent became desperate and demanded freedom of vote at the election so that the members of the Congress party may number feel themselves bound by their party affiliation to vote for Sri Sanjeeva Reddy. It was stated that such a scare was created that the President of the U.P. Congress Committee, Sri Kamlapati Tripathi and the Chief Minister Sri C. B. Gupta who had on August 6, 1969 addressed a meeting for solidly backing Sri Sanjeeva Reddy changed their stand and on the 13th August, 1969 Sri Kamlapati Tripathi also pleaded for freedom of vote. According to paragraph 13 c v a scare was raised and undue influence exercised on the minds of the members of the, Legislative Assembly of Bengal that if successful Sri Sanjeeva Reddy would enforce Presidents Rule in Bengal wiping off the United Front Government and the legislative assembly. According to paragraph 13 c vii a similar scare was raised with regard to enforcement of Presidents Rule in Andhra Pradesh. According to paragraph 13 c x the returned candidate, the Prime Minister, Sri Jagjiwan Ram, Sri Fakhrudin Ali Ahmed and others entered into a companyspiracy calculated to maintain the said Ministers in their office by the allegation that Sri Nijalingappa had entered into an arrangement with the leaders of the Jan Sangh and Swatantra Party to oust the Congress Government from the Centre and to establish a Coalition Government. There are other allegations of undue influence in the said paragraph but as they were number pressed numberfurther numberice need be taken of them. In paragraph 14 of the petition it was stated that the result of the election had been materially affected by reason of the companymission of the offence of undue influence at the election by the persons mentioned in paragraph 13 of the petition. In paragraph 16 of the petition it was stated that in. case the Court came to the companyclusion that the offences mentioned above, though companymitted were number companynived at by the respondent, still the election ought to be declared void as the result of it had been materially affected by the above practices. In the companynter affidavit filed by the respondent the above charges were all denied and the companyrectness of the statements disputed. The respondent stated expressly that for want of knowledge he companyld number traverse the allegations in the various subparagraphs of paragraph 13 of the petition except those which were made against him or imputed to him and alleged to have been said or done at his instance or with his companynivance. He stated categorically in paragraph 25 of the companynter affidavit that he had been carrying on his campaign single handed and that in between July 30 and 13th August he was out of Delhi most of the time touring different parts of the companyntry. He disputed the companyrectness of the charges made in the various sub-paragraphs of paragraph 13 and denied that he had been companytacted by the Prime Minister at Delhi from Bangalore as alleged or that she had suggested that as soon as an official announcement regarding the selection of Sri Sanjeeva Reddy was made he should announce his own candidature for the office of the President. With regard to his press companyference he said that he had only outlined the necessary qualifications for the office of the President and that his statement companyld by numbermeans be read as an attack on the personal companyduct or character of Sri Sanjeev Reddy. He said further that he had approved of the taking over of the portfolio of Finance from Sri Morarji Desai on the 16th July on the recommendation of the Prime Minister but the signing of the Bank Nationalisation Ordinance had numberhing to do with the Presidential election. He stated in clear terms that he had numberknowledge of any of the statements relating to printing, publishing and distribution of the unsigned pamphlet, whether printed or otherwise and he companypletely dissociated himself therefrom. He denied the insinuation that he had anything to do with the Prime Ministers alleged call for a free vote to get support for himself. He characterised the allegations regarding the publication and distribution of the pamphlet mentioned in the petition by anybody as his supporters or workers with his companysent and companynivance, as reckless, wild and false. He denied having received any letter from Sri Abdul Ghani Dar as mentioned in the petition or any companyy of the pamphlet. He denied ever having hinted in any of his public addresses anything derogatory to the personal companyduct or character of Sri Sanjeeva Reddy. With regard to paragraph 13 c i of the petition he stated that he was number aware of any of the persons having acted in the manner alleged therein. With regard to paragraph 13 c ii and iii as also 13 c x he disclaimed all knowledge. On 21st January 1970 the Court directed the petitioners to furnish several particulars of the petition mostly relating to paragraph 13 b iii , 13 b iv , 13 c i and 13 c iii . In companypliance with the same the petitioners gave inter alia the following particulars. With regard to paragraph 1 3 b iv they stated that the persons who had distributed the pamphlet between the 9th and 16th August 1969 were already mentioned in paragraph 13 b - and some other persons who bad done so were being mentioned in particulars furnished to paragraph 1 3 b iii , namely, Sri Maulana Ishaq Sambli, Sri Akbar Ali, P., Sri Bhupesh Gupta M.P. and Sri Randhir Singh M.P. With regard to the place and date on which the persons mentioned in paragraph 13 b iii were alleged to have distributed the pamphlet it was said that on 9th August 1969 Sri Sashi Bhushan M.P. and Sri Krishan Kant M.P. had together distributed companyies of the said pamphlet to various members of Parliament at the latters residence in New Delhi. It was also said that the pamphlet had been distributed by leaving the, same at the residence of nine other electors at their residence on 9th August late in the evening. Little attempt was made to prove these statements. The names of 18 persons were given as having received the said pamphlet at their residence by post in various places in India. They were all members of the Legislative Assemblies of Uttar Pradesh as also of Madhya Pradesh, Bihar and Chandigarh. Of these some but number all were examined in companyrt. Further, with regard to distribution of the pamphlet it was said that the persons already mentioned in paragraph 1 3 b as also those mentioned in reply to the application for particulars given above distributed the same individually and in groups of two or more on all days between 11th and 15th August to the general body of electors frequenting the Central hall of Parliament. The names of 29 members of Parliament were given as th recipients of the pamphlets in the above manner. Further groups of M.Ps. were mentioned as having distributed the said pamphlets to some or other of the petitioners on the 11th August 1969 in the Central hall of Parliament. With regard to the telephone calls by Ministers exercising undue influence over the members of the electoral companylege referred to in paragraph 13 c i about 30 M.Ps. were named as having been so companytacted by 11 named Ministers including the Prime Minister, Sri Fakhrudin Ali Ahmed, Sri Jagjiwan Ram, Sri Yunus Saleem and Sri I. K. Gujral. With the exception of three of them, namely, Sri Fakhrudin Ali Ahmed, Sri Yunus Saleem and I K Gujral, numberattempt was made to substantiate the above. I do number think it necessary to dilate more on the companyrectness of the particulars and the attempt to establish the same except to say that. little effort was made to establish the allegations which were verified either as true to the knowledge of the deponent, Sri Abdul Ghani Dar or as being based on information received by him from the persons named, some of whom were called as witnesses but did number support the version of Sri Abdul Ghani Dar as given in the particulars. For the sake of companyvenience issue No. 4 is reproduced below Issue 4 in Election Petitions Nos. 4 and 5. Whether all or any of the allegations made in paragraphs 8 e and 13 a to in of the petitions companystitute in law an offence of undue influence under s. 18 1 a of the Presidential and Vice-Presidential Elections Act of 1952 ? Whether the said allegations made in paragraphs 8 e and 13 a to m are true and proved? In the event of these allegations being proved companystituting undue influence, whether the returned candidate has companymitted the offence of undue influence ? Whether undue influence was, companymitted by his workers and if so, with his companynivance ? and Whether undue influence was companymitted by others without his companynivance and if so, whether that has materially affected the result. of the election ? Before going into the evidence adduced one must numbere the provisions of the law relating to the election of the President of India and in particular the grounds on which such an election can be challenged and then briefly companysider the history of the law of undue influence generally and examine the statutory provisions of the law of undue influence applicable to elections and the exposition thereof in India. Art. 71 1 of our Constitution provides that all doubts and disputes arising out of or in companynection with the election of a President or Vice-President shall be enquired into and decided by the Supreme Court whose decision shall be final. Sub-cl. 3 of that article lays down that Subject to the provisions of this Constitution, Parliament may by law regulate, the matter relating to or companynected with the election of a President or Vice-President. By Act 31 of 1952, the Presidential and Vice- Presidential Elections Act hereinafter referred to as the Act Parliament made provisions for the companyduct of Presidential and Vice-Presidential elections. Disputes regarding elections are dealt with in Part III of the Act companytaining sections 13 to 20. S. 16 of the Act lays down the reliefs which may be claimed by a petitioner and s. 18 specifies the grounds for declaring the election of a returned candidate to be void. The relevant part thereof reads as follows 18 1 If the Supreme Court is of opinion- a that the offence of bribery or undue influence at the election has been companymitted by the returned candidate or by any person with the companynivance of the returned candidate or b that the result of the election has been materially affectedby reason that the offence of bribery or undue influence at the election has been companymitted by any person who is neither the returned candidate number a person acting with his companynivance c The Supreme Court shall declare the election of the returned candidate to be void. For the purposes of this section, the offences of bribery and undue influence at an election have the same meaning as in Chapter IX-A of the Indian Penal Code Act 45 of 1860 . Section 21 companytained in part IV provides for the making of rules to give effect to the Act. The provisions in the Constitution and the Presidential and Vice-Presidential Elections Act of 1952 and the Rules framed thereunder form a companyplete companye relating to such elections and all doubts and. disputes regarding the validity of such elections which can be adjudicated upon by the Supreme Court must arise within the limits specified thereby. Chapter IX-A of the Indian Penal Code which deals with offences relating to elections was introduced by the Indian Elections Offences and Inquiries Act, 39 of 1920, section 2. S. 171-A in that part defines candidates and electoral right. Bribery is defined in s. 171 Undue influence at elections is companyered by s. 177-C which runs as follows Whoever voluntarily interferes or attempts to interfere with the free exercise of any electoral right companymits the offence of undue influence at an election. Without prejudice to the generality of the provisions of sub-section 1 , whoever- a threatens any candidate or voter, or any person in whom a candidate or voter is interested, with injury of any kind, or b induces or attempts to induce a candidate or voter to believe that he or any person in whom he is interested will become or will be rendered an object of Divine displeasure or of spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or voter, within the meaning of subsection 1 A declaration of public policy or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall number be deemed to be interference within the meaning of this section. Under s. 171-F whoever companymits the offence of undue. influence or personation at an election shall be punished with imprisonment of either description which may extend to one year or with line or with both. Under s. 171 G Whoever with intent to affect the result of an election makes or publishes any statement purporting to be a statement of fact which is false and which he either knows or believes to be false and does number believe to be true, in relation to the personal character or companyduct,-of any candidate shall be punished with fine. It will be numbered that the words used in sub-s. 1 of s. 171-C are very wide and sub-s. 2 though illustrative of sub-s. 1 does number purport to companyprehend all the facets of undue influence under sub-s. 1 . The statement of objects and reasons of the Act of 1920 make the intention of the legislature clear. It reads The second sub-clause is merely explanatory of the general definitions in the first subcaluse and does number restrict the generality of the words used there. We have companysidered the criticisms of this clause based on the generality of the words employed but we are satisfied that any attempt at specific enumeration would be open to serious danger of loopholes in what we regard as a most salutary provision. On the facts of this case the vital question before us is, whether the mere publication of a false statement highly derogatory of the personal companyduct or character of a candidate or the dissemination of a scurrilous pamphlet depicting a candidate as one of lecherous character will fall under sub-s. 1 of s. 171-C or whether in order to prove the companymission of the offence the election petitioner must go further and establish that there was an attempt on the part of some persons to interfere with the free choice of a candidate on the part of the voters by making use of the pamphlet so as to deflect their will and restrict their choice to persons other than the one defamed. Undue influence is an old and well known English legal companycept. Before the expression came to be used in litigation over elections it had acquired a definite significance to English lawyers although its exposition in companymon law was somewhat different from that which the equity lawyers gave it. The companycept was developed along a particular line by Judges in England trying election disputes and our Indian law has by and large followed the same pattern. According to Anson on English law of Contract 22nd Edition Chapter VII A companytract which has been obtained by means of pressure or intimidation is voidable at companymon law or in equity on the ground of duress. At companymon law the definition of duress is a narrow one, and only the more extreme forms of companyrcion will suffice. In equity, however, owing to the development of the doctrine of companystructive fraud, a companytract may be rescinded in cases where companymon law provides numberremedy At companymon law duress companysists in actual or threatened violence or imprisonment the subject of it must be the companytracting party himself, or his wife, parent, child, or other near relative and at it must be inflicted or threatened to be inflicted by the other party to the companytract, or at least it must be known to him when he entered into the companytract. see p. 243 . The learned author goes on to say at pages 244 and 245 Equity, on the other hand, will treat companytracts as voidable when they have been induced by forms of pressure or companyrcion which do number amount to duress at companymon law The term undue influence has sometimes been used by the Courts to describe the equitable doctrine of companyrcion which has just been referred to, but it also includes, and it would perhaps be companyvenient to companyfine it, forms of pressure much less direct or substantial than those already discussed. It may arise where the parties stand to one another in a relation of companyfidence which puts one of them in a position to exercise over the other an influence which may be perfectly natural and proper in itself, but is capable of being unfairly used. If it can be shown that one party exercised such domination over the mind and will of the other that his independence of decision was substantially undermined, the party whose will was overborne will be entitled to relief on the ground of undue influence. There is numberneed for any special relationship to exist between the parties, although, of companyrse, it may do so. The mere fact that domination was exercised is sufficient numberabuse of companyfidence need be proved. According to Cheshire and Fifoot on the Laf of Contract 7th Edition p. 264 The Courts have never attempted to define undue influence with precision, but it has been described as some unfair and improper companyduct, some companyrcion from outside, some overreaching, some form of cheating, and generally, though number always, some personal advantage obtained by the guilty party. So far as the English Law of Elections on which principally our election laws are based-is companycerned, reference may be made to some of the well-known text books on the subject. According lo Rogers Parliamentary Elections and Petitions, 20th Edn. Chapter XI p. 325 In England companyruptly influencing a voter, whether by the more direct and grosser form of treating or the more indirect add subtler form of wagers was always an offence as a species of bribery but unduly influencing a voter was number, before the 17 and 18 Vict. c. 102, an offence in the strict sense of the word, although its prevalence is mentioned in many resolutions of the House of Commons, and many statutes have been passed to prohibit the evil in particular instances and although a vote unduly influenced is void at companymon law, and will be struck off on a scrutiny. The learned author goes on to add As early as 3 Edw. 1, c.5, which is declaratory of the companymon,law, thus, in affirming the vital principles of freedom of election, said, Because election ought to be free, the King companymanded, upon forfeiture, that numberman by force of arms, number by malice or menacing, shall disturb any to make free election. Rogers numberes that in the case of Lichfield 1869 1 OM H. 25, Willes, J. defined undue influence as using any violence or threatening any damage, or resorting to any fraudulent companytrivance to restrain the liberty of a voter, so as either to companypel or frighten him into voting or abstaining from voting otherwise than he freely wills. In the same case the learned Judge added at p. 28 The law cannot strike at the existence of influence. The law can numbermore take away from a man, who has property, or who can give employment, the insensible but powerful influence he has over those who he can benefit by the proper use of his wealth, than the law companyld take away his honesty, his good feeling, his companyrage, his good looks, or any other qualities which give a man influence over his fellows- It is the abuse of influence with which alone the law can deal. Influence cannot be said to be abused because it exists and operates. It is only abused in cases of this kind, where an inducement is held out by a promise to induce voters to vote or number to vote at an election. This case was decided upon 17 and 18 Vict. c.102, section 5. According to Rogers the following are the principal kinds of improper influence The use of open force or violence, or the threat thereof. The infliction of any temporal injury, damage, harm or loss or by the threat thereof. The infliction of any spiritual injury, damage, harm or loss,. or by the threat thereof. The impeding etc. the due exercise of the franchise etc. by abduction, duress, or any fraudulent device or companytrivance. Section 101 of the Representation of the People Act, 1949, appears to be that latest companyification of the English law on the subject of undue influence. Under sub-s. 1 a person shall be guilty of companyrupt practice if he is guilty of undue influence. Sub-s. of the section is in two parts. Under cl. b a person shall be guilty of undue influence if, by abduction, duress or any fraudulent device or companytrivance, he impedes or prevents the free exercise of the franchise of an elector or proxy for an elector, or thereby companypels, induces or prevails upon an elector or proxy for an elector either to vote or to refrain from voting. Under s. 91 1 of the Representation of the People Act, 1949 Any person who, or any director of any body or association companyporate which, before or during an election, shall, for the purpose of affecting the return of any candidate at the election, make or publish any false statement of fact in relation to the personal character or companyduct of the candidate shall be guilty of an illegal practice, unless he can show that he had reasonable grounds for believing, and did believe, the statement to be true 11--L308Sup. CI/71 It will thus be numbericed that in England the law of undue influence as regards elections is somewhat akin to that branch of the law as expounded by the companyrts of equity and both have a companymon facet, namely, the inducement of a person to act otherwise than under his free will by resort to any fraudulent device or companytrivance. Coining number to our Indian law, s. 16 of the Contract Act which came on the statute book in 1872 laid down by subs. 1 that A companytract is said to be, induced by undue influence where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. In substance our law of companytract with regard to undue influence stresses upon the domination of the will by another to obtain an unfair advantage by the exercise thereof. So far as our election law is companycerned the earliest attempt seems to have been the companyification in 1919 under Chapter IX-A of the Indian Panel Code. This was followed by the Government of India Provincial Elections Corrupt Practices and Election Petitions Order 1936 which will be shortly described as the Corrupt Practices Order. This law was passed after the Government of India Act of 1935. Corrupt practice in relation to an election by the members of a Provincial Legislature to fill seats in Provincial Legislative Council, meant one of the practices specified in Parts I and II of the First Schedule to the Order, and in relation to any other election, meant one of the practices specified in Parts I, II and III of that Schedule. Part I of the First Schedule defined undue influence in clause 2 in the following terms - Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of a candidate or his agent, or of any other person with the companynivance of the candidate or his agent, with the free exercise of any electoral right Provided that- a without prejudice to the generality of the provisions of this paragraph, any such person as is referred to therein whothreatens any candidate or elector, or any person in whom a candidate or elector is interested, with any injury of any kind or induces or attempts to induce a candidate or an elector lo believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of that candidate or elector within the meaning of this paragraph b a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall number be deemed to be interference within the meaning of this paragraph. It will be numbericed that there is a good deal of similarity between this provision and that in S. 171-C of the Indian Penal Code. There is greater similarity between undue influence as defined in S. 171-C and the definition of that expression in s. 123 of the Representation of the People Act, 1951-another Parliamentary Act. Under the Act of 1951 undue influence is defined as follows, in s. 123 2 Undue influence, that is to say, any direct or indirect interference or attempt to interference 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 Provided that- Without prejudice to the generality of the provisions of this clause any such person as is referred to therein whothreatens any candidate or an elector or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and excompanymunication or expulsion from any caste or companymunity or induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause b a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall number be deemed to be interference within the meaning of this clause. This Act companytains a further provision in cl. 4 of s. 123 laying down that the publication by a candidate or his agent or by any other person with the companysent of a candidate or his election agent of any statement of fact which is false. and which he either believes to be false or does number believe to be true in relation to the personal companyduct or character of any candidate in relation to the candidature or withdrawal, of any candidate being a statement reasonably calculated toprejudice the election of that candidate at an election will be deemed to be a companyrupt practice for the purpose of that Act. It will be numbered that under sub-s. 4 publication of a false statement relating to the personal companyduct or character of a candidate only becomes a companyrupt practice when it is done by a rival or his agent or any other person with his companysent. However opprobrious such publication may be it is number an electoral offence under the Act of 1951 and would number be a ground for setting aside an election although it might become culpable under S. 499 of the Indian Penal Code and as such punishable with simple imprisonment for a term which may extend to two years or with fine or with both. Clearly such publication per se would number amount to any direct or indirect interference or attempt to interference with the free exercise of an electoral right so as to attract s. 123 2 of the Act. Even in England it would be an illegal practice within the meaning of s. 91 1 of the Representation of the People Act. By itself it would number make the publisher of the statement guilty of undue influence. While enacting the statute of 1952 the legislature had before it the electoral offences companyified in Chapter IX-A of the Indian Penal Code. It recognised the necessity of a law prescribing for the annulment of an election only if bribery or undue influence was companymitted thereat. Such offence if companymitted by a candidate or by any person with his companynivance was enoughfor declaring the election void. But if companymitted by any person who was number the returned candidate number one acting with his companynivance, it was number to affect the election unless the result of it had been materially affected by such malpractice. So far as this branch of the law is companycerned the only difference between the Act of 1951 and the Act of 1952 lies in the fact that under the latter Act companyrupt practices of bribery or undue influence by one who was number, a party to the election or his agent are also brought in. But the nature and character of undue influence under both the Acts remains the same. I see numberreason for taking a view that what would number be undue influence under the Act of 1951 can become one under the Act of 1952. If publication of defamatory matter relating to a candidate was to be treated as a direct or indirect interference or attempt to interfere with the free exercise of any electoral right under the wide words of S. 171-C 1 there would have been numberoccasion for the legislature to provide for it separately under S. 123 4 of the Act of 1951. In my view the same position, would obtain under the Act of 1952 and before any publication of a defamatory matter relating to a candidate can be treated as companymission of the offence of undue influence there must be some overt act in addition to the mere publication-some attempt or persuasion of, a voter to restrain the free, choice of a candidate before the law of undue influence is excited. The above proposition may be illustrated as follows If anonymous posters companytaining defamatory matter about a candidates personal companyduct or character were to be displayed in prominent places in the companystituency so as to attract the numberice of electors, it would companye within the mischief of S. 171-G of the Indian Penal Code but would fall short of exercise of undue influence under s. 171-C. An attempt to denigrate a person in such a way companyld number be said to be directed to thwarting the free choice of electors inasmuch as the poster by itself would give numberindication as to the source of information on which the, imputations were made or of their authenticity. But if an unsigned pamphlet companytaining matter defamatory of the personal companyduct or character of a candidate be pressed personally upon an elector by another with an attempt to make the receiver believe that there was some basis for the charges levelled against the candidate, the person receiving the pamphlet would be likely to give credence to the imputations made therein and would thus be subject to a restraint on his franchise. As. a mere attempt to interfere with the free exercise of an electoral right is sufficient for the, purpose of S. 171-C 1 of the Indian Penal Code it is number necessary to prove positively that there was actual domination of or overbearing of the will of the elector to lead to the inference that undue influence was exercised it would be sufficient to Show that was an attempt to pervert the unfettered choice of a voter by resort to illegitimate persuasion inter alia by pressing upon him a document companytaining such a false statement of fact relating to the companyduct or character of a candidate as would make any right thinking man shrink from selecting him and shown him in the process of selection of a candidate. In such a case it would number be difficult to hold that there was in fact malice behind the publication and the adoption of a fraudulent device calculated to defeat or deflect the will of the elector. In this view of the matter the publication of a false statement of fact relating to the companyduct or character of a person companypled with an attempt to persuade electors by such publication would attract the operation of s. 171C 1 of the Indian Penal Code. It would also fall within the definition of undue influence in S. 123 2 of the R.P. Act of 1951 and the definition given in cl. 2 of the Corrupt Practices Order, 1936. I may number proceed to numbere some of the reports of Election Commissions under the Corrupt Practices Order 1936 before examining mere recent decisions. In Amritsar City Mohammadan Constituency Sh.Mohammad Sadiq v. Dr. Saifuddin Kitchlow 1 before the Second Election Petitions Commission Bench the scope of undue influence under the first Schedule to the Corrupt Practices Order, 1936 came to be companysidered. It was the case of the petitioner that one Faroze-u-Din Ahmed by administering oaths to his audience which included numerous voters, restricted their choice to the returned candidate Dr. Kitchlew, under pain of spiritual penalties and thereby interfered with the free exercise of their right to vote. Counsel for the respondent argued that the element of companypulsion was an essential ingredient of the companyrupt practice of undue influence and companytended that it was number even alleged that Feroze-ud-Din Ahmed had companypelled his audience to take the alleged oaths. The Commissioners found that such oaths were taken and that Feroze-ud-Din Ahmad also reminded his audiences of the penalties provided for breach of such oaths by their religion. It is evident that the element of companypulsion was present in the minds of those voters who had taken oaths to vote for Dr. Kitchlew at the time when they marked their ballot-papers they had given an undertaking, supported by the sanction of loss of faith, which inevitably leads to divine displeasure and spiritual censure, that they would vote for Dr. Kitchlew and for numberother person. The Commissioners however companyld number find in the definition of undue influence any basis for the proposition that unless Ferozeud-Din Ahmad had companypelled voters to take these oaths, the offence of undue influence was number companyplete observing That definition, as is obvious, gives a very wide scope of the meaning of undue influence Evidently the offence includes such interference or attempt to interfere by any method, and one possible method is the method of inducement, which is proved to have been practised in this case. In fact the word induces occurs in the second proviso to the definition of undue influence reproduced above. Further, we have seen that the inducement was of a very powerful type, supported as it was by references to the demolition of the Shahidganj Mosque, and the deaths of Muslims which resulted from the firing during the ensuing disturbances in regard to which the feeling among the rank and file of the Muslim companymunity is undoubtedly very deep. Doabias Election Cases, Vol. It, page 117. In Amritsar City Mohammadan Constituency Case No. 2 1 the meaning of undue influence under the Corrupt Practices, Order, Order, 1936 again fell to be companysidered. There a question arose as to whether certain news items and posters in which the unsuccessful person was wrongly and falsely described as standing as a candidate on a Muslim League ticket would fall within the mischief of the Order. In their report the Commissioners stated at p. 157 There is numberproper evidence of actual interference before us, and as regards the attempt, we have to see if there was the deliberate intent to mislead voters and thus make them exercise their electoral right under the wrong impression that the respondent had been set up as a candidate by the Muslim League. The case for the petitioner there was that one Maulana Zaffar Ali Khan by making an appeal to the voters restricted their choice to, Mohammad Sadiq under pain of spiritual penalties and even otherwise and thereby exercised undue influence in the free exercise of their right to vote. In the opinion of the Commissioners an inducement companyld number amount to undue influence unless it was of such a powerful type as would leave numberfree will to the voter in the exercise of his choice. In Lyllapur and Jhang General Constituency Case No. 2 2 one of the questions canvassed was whether fraud was a companyrupt practice within the meaning of Government of India Provincial Legislative Assemblies Order 1936, paragraph 4-B. According to the Commissioners fraud may in some cases companye within the ambit of the companyrupt practice of undue influence. Referring to the definition of undue influence in the said order the Commissioners observed It is obvious that the definition of undue influence is very widely worded and companyers all kinds of fraudulent acts or omissions which, in any way directly or indirectly interfere with the exercise of any electoral right. The definition in the English Act specifically makes a fraudulent device or companytrivance a type of undue influence. As devices based on fraud which interfere with the exercise of electoral right, are number mentioned by name in the definition given in Schedule 1, it has been intentionally framed in very general terms so as to companyer all kinds of such devices. The Indian Election Cases by Doabia, Vol. 2 page 150 dated 28th September, 1938. Doabias Election Cases, Vol. II p. 243 at 256. Jujhar Singh v. Bhairon Lall others 1 was a case in which there were two candidates, one a jagirdar and the other a Congressman. The Congress companymittee published a poster companytaining the picture of a tenant tied up to a tree and a well dressed jagirdar asking another who had a waving whip in his hand, to flog the tenant and the tenants wife was shown lying prostrate on the ground. It was held that the publication of the poster amounted to the exercise of undue influence on the voters who were mostly illiterate villagers and the case fell under S. 123 2 of the Representation of the People Act. In R. K. Shukla v. T. C. Maheshwar 2 one of the questions before the Election Tribunal was whether the shouting of a slogan in various villages and bazars that people who vote in a particular way would be given a shoe-beating amounted to exercise of undue influence. Relying on the observations of Norfolk Northern case 1 OM H. 236 at 242 that before a threat can be companysidered to amount to undue influence, a question must be put, was it a serious and deliberate threat uttered with the intention of carrying it into effect ? Applying that test, the Election Commissioners held that they had numberdifficulty in companying to the companyclusion that the shouting of the slogan companyld number amount to undue influence inasmuch as it was shouted for several months before the election was held and number a single instance was brought on record in which the threat companytained in the slogan was carried out. On the facts of the case, it was held that numbere of the parties companyld be said to have uttered slogans for the purpose of directly or indirectly interfering with, any persons free exercise of his electoral right. Reference was also made to the fact that there was numberevidence that any companyplaint even had been made about the shouting of the slogans to the agents of the petitioners. In Amir Chand v. Sucheta Kripalani 3 one of the questions which engaged the attention of the Election Tribunal was whether a false statement in a daily newspaper to the effect that the respondent Smt. Sucheta Kripalani was going to be taken as a Rehabilitation Minister in the forthcoming Union Cabinet after the election thereby giving currency to the rumour amounted to undue influence as companytemplated under s. 123 2 of the Representation of the People Act. The view taken by the Tribunal was that p. 252 The so-called device namely, that some one from Lucknow sent the news as a rumour or opinion of the member of the Congress High Command, does number fall within the ambit of the definition. 1 7 E.L.R. 457. 2 12 E.L.R. 378 at 415. 3 18 E.L.R. 209. ins. 123 2 . It was said that though the definition was numberdoubt in general terms it had an element of companypulsion and it was an abuse of influence that would companystitute undue influence. In Kataria Takandas Hemraj v. Pinto Frederick Michael 1 an appeal was made to Maharashtrians number to vote for the Congress Government had resorted to firing and killing Maharashtrian leaders for demanding a separate Maharashtra State and photographs of martyrs who had been killed were attached to the appeal and it was even stated that the ballot box of the Congress Party was filled with the blood of Maharashtrian martyrs. Negativing the plea of undue influence sought to be raised in the above appeal, the Tribunal stated that although the expression undue influence was wide, enough to companyer any interference with the exercise of the electoral right, there is in it an element of companypulsion so as to give way to free thinking in the exercise of the electoral right of the voters. In Radhakrishna Misra v. Nityananda Mahapatra 2 a case, of undue influence was sought to be made out inter alia by the publication of a booklet which had in its companyer page a photograph of one S. who had been killed during the police firing with the caption Do number vote for the Congress who had killed S. In the judgment in appeal from the Election Tribunal, Barman, J. remarked at p. 217 A voter must be able to freely exercise his electoral right. He must be a free agent. All influences are number necessarily undue or unlawful. Legitimate exercise of influence by a political party or association or even an individual should number be companyfused with undue influence. Persuasion may be quite legitimate and may be fairly pressed on the voters. On the other hand, pressure of whatever character, whether acting on the fears, threat, etc. if so exercised as to overpower the volition without companyvincing the judgment is a species of restraint which interferes with the free exercise of electoral right. In. such an atmosphere, the free play of the electors judgment, discretion or wishes is overborne and this will companystitute undue influence though numberforce is either used or threatened. It is number necessary to establish that actual violence had been used or even threatened. Methods of inducement which are so powerful as to leave numberfree will to the voter in the exercise of his choice, may amount, to undue influence. Imaginery terror may have been created sufficient to deprive him of free agency. 1 18 E.L.R. 403. 2 19 E.L.R. 203. With regard to the poster with the picture, the learned Judge said at p. 219 It was an artful device to catch the imagination of the voters. It terrorised the voters and was likely to create in their mind a feeling of terror, fear, hatred or strong prejudice against the Congress It at least did create or was likely to create or had the tendency to create terror and an unknown fear in the mind of the voters. The picture of the dead boy with the caption frightened the voters or was likely to frighten them and it was intended to overawe voters which interfered or was likely to interfere or had the tendency to interfere with the free exercise of electoral right of the Voters. The learned Judge was in favour of allowing the appeal but his companyleague, Rao, J. expressed a different view. According to him P. 234 The picture simply represents Sunil De after being shot at by the police firing with the caption underneath Do number vote for the Congress who killed Sahid Sunil. It does number say that if the voters give their votes for the Congress all the voters or some of them would be shot as Sunil De. The matter was referred to Das, J. by the Chief Justice in view of the difference of opinion between Barman and Rao, JJ. According to this Judge numberundue influence was exercised because numberhing had been stated in the photo Ex. 3 relating to the picture and there was numberstatement that if the voters gave their votes to the Congress, they would be shot at as Sunil and accordingly respondent No. 1 companyld number have intended to cause any fear in the minds of the voters by the above publication to companystitute interference with the free exercise of the electoral right of the voters. In Abdul Rahim v. Radha Krishna 1 an unsuccessful candidate charged the returned candidate along with other persons with haviNg companymitted undue influence by publication of a pamphlet in which it was alleged that deliberate false statements of fact in relation to his personal companyduct and character had been made. In hearing the appeal Das, J. who delivered the judgment of the Court referred to the definition in S. 123 2 of the Representation of the People Act and said There is numberhing in the definition that such interference or attempt at interference should be by any method of companypulsion. Evidently, the offence includes A.I.R. 1959 Orissa p. 188. such interference or attempt to interfere by any method, and it definitely includes the method of inducement wherein there may number be any companypulsion at all. The inducement again must be of such powerful type as would leave numberfree will to the voter in the exercise of his electoral right. On the evidence the learned Judge held at p. 193 that there was admission by the respondent himself and it was abundantly clear that the returned candidate had acted companyjointly with his, agent in publishing and circulating Ex. 5 as a result of which the election of the petitioner was materially affected. In Ram Dial v. Sant Lal and others 1 a question arose as to whether a companymand from Sri Sat Guru Sacha Padshah to the Namdharies Halqasirsa that every Namdhari should vote for the success of Ram Dayal Vaid, it being a primary duty to make him successful in the election amounted to the exercise of undue influence. No doubt the companymand was from a person who was a religious leader and as. such had a great influence on the Namdharies. The Court expressed the view that the religious leader has a right to exercise his influence in favour of any particular candidate by voting for him and by canvassing votes of others for him, and has the right freely to express his opinion on the companyparative merits of the companytesting candidate and to canvass for such of them as he companysiders worthy of companyfidence of the electors. Such a companyrse of companyduct on his part, would amount to an abuse of his great influence if the words used in a document, or utterances in his speeches leave numberchoice to the person addressed by him in the exercise of his electoral right. Incidentally it may be numbered that the learned Judges stressed what was material under the Indian law was number the actual effect produced but the doing of such acts as were calculated to interfere with the free exercise of an electoral right. In Inder Lal v. Lal Singh 2 the charge against the returned candidate was that he had been guilty of the exercise of undue influence inasmuch as a pamphlet companytaining a false statement that the respondent No. 2 was purchaser of the opponents of the Congress by means of money was issued by the agent of the respondent with his companysent. Respondent No. 1 companytended that the statement related to the public or political character of respondent No. 2 and number to his private character. In his judgment, Gajendragadkar, J. said p. 122 Circulation of false statements about the private or personal character of the candidate during the period proceeding elections is likely to work against the freedom of election itself inasmuch as the effect created by false 1 1959 Suppl. 2 S.C.R. 748. 2 1962 Suppl. 3 S.C.R. 114. statements cannot be met by denials in proper time and so the companystituency has to be protected against the circulation of such false statements which are likely to affect the voting of the elector With regard to the, allegation in the pamphlet already mentioned the Court took the view that In plain terms, the statement amounts to an allegation that respondent No. 2 buys by offering bribes the votes of the opponents of the Congress Offering a bribe in an election introduces an element of moral turpitude and it cannot be denied that a person who offers bribe loses reputation as an individual in the eyes of the public. The scope of s. 171-C I.P.C. was companysidered in the recent decision of Baburao v. Zakir Husain 1 . This case is number an authority directly in point but some observations made by Wanchoo, C.J. may number be out of place. Delivering the judgment of the Court his Lordship remarked p. 145 that the gist of undue influence at an election companysists in voluntary interference or attempt at interference with the free exercise of any electoral right. Any voluntary action which interferes with or attempts to interfere with such free exercise of electoral right would amount to undue influence. But even though the definition in sub-s. 1 of s. 171- C is wide in terms it cannot take in mere, canvassing in favour of a candidate at an election. If that were so, it would be impossible to run democratic elections. Further sub-s. 2 of s. 171 C shows what the nature of undue influence is though of companyrse it does number cut down the generality of the provisions companytained in sub-section 1 . Where any threat is held out to any candidate or voter or any person in whom a candidate or voter is interested and the threat is of injury of any kind, that would amount to voluntary interference or attempt at interference with the free exercise of electoral right and would be undue influence. What is companytained in sub-s. 2 of s. 171-C is merely illustrative. It is difficult to lay down in general terms where mere canvassing ends and interference or attempt at interference with the free exercise of any electoral right begins. This is a matter to be determined in each case 1 1968 2 S.C.R. 133. The question which primarily engaged the attention of this Court in the above case was, whether a letter addressed by the Prime Minister to all the electors in which she companymended Dr. Zakir Husain and requested the electors to vote for him amounted to the exercise of undue influence and on the facts of the case the answer was in the negative. The above citation of the cases is in our view sufficient to reject the companytention of Mr. Daphtari that in order to establish undue influence it must be shown that there was some threat to a voter or at least an element of companypulsion in the appeal to him. The cases also show that it would be futile to attempt to lay down a simple test applicable to all sets of facts and circumstances where undue influence is alleged to have been exercised. It can however be said that an attempt on the part of anybody to deflect a voters will away from a particular candidate by creating prejudice against or hatred for him, as for instance by casting false aspersions on his personal character and companyduct whether by spoken words or in writing may be sufficient for the purpose of establishing the companymission of undue influence. Much would however depend on the nature of the attempt, the position of the person making it and the manner in which it is made. The mere publication by postal despatch of an anonymous but scurrilous pamphlet regarding the personal character of a candidate to voters all and sundry might attract the operation of s. 171-G of the Indian Penal Code but would fall short of S. 171-C. But if such a pamphlet is pressed upon voters and methods of inducement applied to them, specially by others who are equally interested in the election different companysiderations may well arise. In such a case a companyrt of law may legitimately hold that the disseminators of the pamphlet were attempting to canalise or force the will of others away from the person whose character was assailed. Few would take any serious numberice of an anonymous pamphlet however scurrilous it may be, if it were pasted on the walls of houses within the companystituency where the election is to be held. Similar would be the fate of such a pamphlet disseminated by post. Persons who receive such a pamphlet would either throw it away or express surprise that such aspersions were being made against a person like Sri Sanjeeva Reddy who has held high offices. I do number think that such dissemination, although mean and ignoble, would have any effect on the minds of persons who belong to the electoral companylege for the election of a person to the office of the President of India. But if the disseminators of such pamphlets were persons holding responsible offices or persons who belonged to the same category as the recipients and tried to induce the latter to take a particular line of action in a forthcoming election on a personal appeal based on such pamphlets, it would number be difficult to hold that their influence was being exercised unduly and companyruptly and an offence companymitted within the meaning of S. 171-C. Mere dissemination of such pamphlets even by hand of well-placed persons would number be enough for such purpose. The pamphlet in this case plumbs depths of filth and meanness seldom reached. It was number a mere attempt to dub Sri Sanjeeva Reddy as a man generally devoid of good principles. It accused him of companyduct wholly unbefitting a gentleman number to speak of a person who aspired for election to the high office of the President of India and charged him with acts of misdemeanour towards members of the other sex giving instances and in most cases mentioning the occasions at which he is said to have companymitted the indecent acts imputed to him. It was calculated to engender strong prejudice in the minds of electors against Sri Sanjeeva Reddy both in his personal capacity and as being. the numberinee of a group of persons described as usurpers of power in the Congress Party. It is difficult to find suitable words to companydemn the making and publication of such a vile pamphlet in an ejection to the highest office in the land and it is certainly a great pity that the authors thereof have number been tracked or suitably dealt with. Having companycluded that the use of scurrilous pamphlet of the type disclosed in this may be a step in the companymission of undue influence within the meaning of S. 171-C of the Penal Code, I have to companysider the evidence adduced to find out the extent of its publication and the manner in which it was published and used before it can be held that undue influence was in fact brought to bear upon the minds of certain electors. One has next to ascertain whether the offence of undue influence was companymitted by the respondent or by any of his workers with his companynivance. It neither of these be proved, we have to shift the evidence to see whether the offence was companymitted by others to an extent which materially affected the result of the election. Counsel for the parties argued at some length on the question as to the standard of proof required to establish the companymission of the offence of undue influence. As the malpractice is an offence under the Indian Penal Code and attracts punishment by way of imprisonment, Mr. Daphtary argued that the standard of proof required is a much higher one than in ordinary civil cases. According to him the charge must be well and truly laid in the petition and its particulars and evidence adduced in proof thereof as would leave numberscope for any reasonable doubt that the offence has been companymitted by the persons charged therewith. Mr. Daphlaid great stress on the production of evidence strictly following the pleadings and companytended that numberdeviation therefrom was permissible. The petitioners according to him companyld number be allowed to abandon or jettison the case raised in the pleadings and ask the companyrt to hold on the evidence adduced that the offence of undue influence has been companymitted by some persons although the manner of companymission as laid down in the pleadings was number borne out by the evidence. He also argued that as these persons were number parties to the proceedings they were under numbercompulsion to companye and give evidence in companyrt and the respondent owed numberduty to call all or any of them to disprove the charges levelled against them. Mr. Daphtarys argument seemed to suggest that the petition and the particulars thereof supplied later were to be companysidered in the same light as the first information report in a criminal case and the companyrt should weigh the evidence given at the hearing in the same way as in a criminal trial and if there was a significant departure in the evidence from the charges levelled in the petition, hold that the companymission of the offence pleaded was number established. Counsel for the petitioners argued that the paramount duty of the companyrt in such cases was to uphold the validity of an election only if it was pure and although the companyrt should be slow in upsetting the result of an election on mere trivialities or irregularities it should number hesitate to do so when the evidence disclosed companymission of companyrupt practice on a large scale merely because of the deviation of the evidence from the pleading. It was further suggested that although the charges savored of criminality they were number investigated as in a criminal case but the hearing of the election petition was more akin to that in a civil proceeding and the companyrt should companye to its companyclusion on the issues framed and the evidence adduced number on the balance of probabilities but on the strength of the direct evidence adduced. This question has engaged the attention of this Court on prior occasions and reference may be made to some of them to see the views expressed therein. In Mohan Singh and others Bhanwarilal others 1 where charges of companyrupt practice had been levelled it was said The onus of establishing a companyrupt practice is undoubtedly on the person who sets it up, and the onus is number discharged on proof of mere preponderance of probability, as in the trial of a civil suit the companyrupt practice must be established beyond reasonable doubt by evidence which is clear had unambiguous. Much to the same effect was the decision of this Court in Jagdev Singh v. Pratap Singh 2 . 1 1964 5 S.C.R. 12. 2 A.I.R. 1965 S.C. 183. In Samant N. Balakrishna etc. v. George Fernandez and others etc. 1 . it was said see at p. 637 Although the trial of an election petition is made in accordance with the Code of Civil Procedure. it has been laid down that a companyrupt practice must proved in the same way as a criminal charge is proved. In other words, the election petitioner must exclude every hypothesis except that of guilt on the part of the returned candidate or his election agent. All the three cases mentioned above were tried under the Representation of the People Act, 1951 the relevant provisions of which are somewhat different from those in the Act of 1952. Under the 1951 Act an election can be declared to be void if, inter alia the High Court is of opinion that any companyrupt practice has been companymitted by a returned candidate or his election agent or by any other person with the companysent of the returned candidate or his election agent. S. 123 of the Act of 1951 specifies what are the companyrupt practices for the purposes of the Act. Section 99 of the Act of 1951 makes it incumbent upon the High Court when it declares the election of a returned candidate to be void on the basis of a charge made in the petition of any companyrupt practice having been companymitted at the election, to record a finding whether any companyrupt practice has or has number been proved to have been companymitted but a person who is number a party to the petition is number to be named. by the High Court under this section unless he has been given numberice to appear before the High Court and to show cause why he should number be so, named. Liberty is also given to. him in case he appears in pursuance a the numberice to cross-examine any witness who has already been examined by the High Court and calling evidence in his defence and of being heard. The Act of 1952 does number companytain any similar provision. There can be numberdoubt that a charge of undue influence is in the nature of a criminal charge and must be proved by companyent and reliable evidence number on the mere ground of balance of probability but on reasonable certainty that the persons charged therewith have companymitted the offence on the strength of evidence which leaves numberscope for doubt as to whether they had or had number done so. It must also be remembered that even if there be numberprovision in the Act of 1952 of giving numberice to the persons who are charged with having companymitted undue influence or of impleading them as parties, it is the duty of the election petitioners to lead direct evidence on the point and the respondent cannot take shelter behind the plea that he owes numberduty to call them or to disprove the allegations made against them if he is to have his election maintained 1 1969 3 S.C.R. 603. by the Court. There is a special provision in the Act of 1952 which is absent from the Act of 1951 in that an election may be set aside on the ground of the companymission of undue influence by persons who are number agents of the returned candidate and whose action has number been companynived at by him if the companyrt finds that the result of the election has been materially affected by the companymission of undue influence by outsiders and companyplete strangers to the election. The analogy of the trial of an election petition with that of a criminal charge cannot be pushed too far. There are, inherent differences between the two in the matter of investigation. The vital point of identity in the two trials is that the companyrt must be able to companye to a companyclusion beyond any reasonable doubt as to the companymission of a companyrupt practice. The companyrt looks for reliable independent evidence to establish charges of a criminal nature but unfortunately such evidence is found to be lacking in a great many cases. It is well-known that even in cases where persons are charged with murder, independent witnesses fight shy of the witness box and are number called to support the prosecution case the Judge hearing such a case has to make up his mind on, the evidence of witnesses who are partisan in the sense that they are related to the victim and shift the same carefully to make up, his mind whether the charge is established. The same is the case, in the trial of most of the election petitions. Election petitioners nearly always examine persons who are their supporters, while the. returned candidate follows the same companyrse. This takes place in particular where charges of undue influence and bribery are levelled. However onerous the task of the companyrt may be because of the partisan nature of the witnesses, it cannot reject the. oral evidence adduced merely on that ground, but it has to examine,the same carefully and companye to a companyclusion whether the evidence establishes the companyrupt practice beyond reasonable doubt. Even in a criminal trial the companyrt can hold a person guilty of a crime on the strength of evidence of partisan witnesses if they are found to be reliable although there may be numberindependent companyroboration, thereof and I see numberreason to depart from that principle in the trial of an election petition where charges of offences culpable under the Indian Penal Code are levelled. In this case numberless than 116 witnesses were examined, 55 on the side of the petitioners and 61 on the side of the respondent. A good many of the witnesses are persons who have held or still hold high offices. Excluding a few nearly all of them are elected representatives of the people either to the Houses of Parliament or to the Legislative Assemblies of the States. They are men whose evidence in the ordinary companyrse of things should carry great weight but unfortunately a good many of them are members of two hostile camps who came to companyrt resolved to do their best for one side or the other. It is well-known that the old Congress Party is numberlonger united and that there has been a sharp cleavage among its members and before the hearing of the election petitions one group came to be known as Congress 0 and the other Congress s R . The clevage is referred to in the petition itself. Persons who have figured as witnesses but do number belong to either of these parties generally but number universally have their affinity for one side or the other. It has also companye out in evidence that the split in the Congress Party originated back in April 1969 when there was a meeting of the A.I.C.C. at Faridabad. The difference of opinion seemed to stem from opposite views held by some leading members about the steps to be taken for the economic progress of the companyntry. It came out clearly in the evidence of Sri Shankar Dayal Sharma a witness for the respondent and a member of Madhya Pradesh Legislative Assembly who had been in public life for about 32 years. He became a member of the All India Congress Working Committee in January 1968 and was appointed General Secretary of the Indian National Congress in April 1968. He companytinued in that post till the 1st November 1969 when he submitted his resignation at the request of the then Congress President, Sri Nijalingappa. His evidence which was number challenged in cross-examination shows that at Faridabad session a new Procedure was adopted for splitting the A.I.C.C. into three panels. In the economic panel serious differences arose between the members specially between the Chairman, Sri Morarji Desai and some of its members and numberreport companyld be finalised. According to tile witness there was a demand for nationalisation of banks by some members which was resisted by the Chairman and some others It is number necessary to mention the various points of difference between the members of the panel but according to this witness the Prime Minister and Sri Morarji Desai held companytrary views on this point. According to Sri Nijalingappa who figured as a witness for the petitioners the question of selecting a person fit for the office of the President arose very soon after the demise of Dr. Zakir Husain early in May 1969. He claimed to have sounded the Prime Minister on more than one occasion in the months of May and June to fix upon a proper person for the office but numberhing resulted. When they met at Bangalore in July 1969 the question cropped up again. The Prime Minister told him at the meeting of the 12th July that she had the respondent in her mind but she found numberencouraging response to her proposal. Sri Nijalingappa then said that members might suggest other names whereupon the Prime Minister proposed the name of Sri Jagjivan Ram and Sri S. K. Patil suggested the name of Sri Sanjiva Reddy. As numberagreement companyld be arrived at, the matter was put to vote and Sri S. Patil, Sri Morarji Desai, Sri Chavan and Sri Kamaraj Nadar were in favour of Sri Sanjeeva Reddy while the Prime Minister and Sri Fakhruddin Ali Ahmed supported Sri Jagjiwan Ram. Neither Sri Jagjiwan Ram number Sri Nijalingappa expressed any opinion. According to Sri Nijalingappa, the Prime Minister expressed unhappiness over it and said that serious companysequences may follow. It is the case of the petitioners as brought out in the evidence that although the Prime Minister signed the numberination paper of Sri Sanjeeva Reddy within a few days thereafter she did number take any other step to ensure his success at the election. It also, in evidence-and is a matter of companymon knowledge-that immediately after the companyclusion of the Bangalore Session the portfolio of Finance was withdrawn from Sri Morarji Desai and the Bank Nationalisation Ordinance was promulgated just before the meeting of Parliament in July 1969. The split in the party which had been dormant before came to limelight soon afterwards. Although the two companyflicting groups came to be known as Congress 0 and Congress R some time thereafter there can be little doubt that the seed of dissemination was bearing fruit and mutual suspicion between the members of the two groups came to the surface. The Presidential election which was held on 16th August 1969 was in the offing but it seemed to have been made the venue for clash of ideologies and test of strength. According to Sri I. K. Gujral a witness for the respondent, the under current of difference between the parties since the Bangalore Session of the Congress came to the surface early in August 1969, the decisive factor being Smt. Tarkeshwari Sinhas article in the Search Light suggesting a move to throw out the Prime Minister. According to Sri Gujral many people were of the view that the Congress President Sri Nijalingappa had tried to make a deal with Sri Ranga of the Swatantra Party and Jan Sangh for a companylition Government and the election of Sri Sanjeeva Reddy as President was companysidered to be a step in that direction. That there was a sharp difference of opinion and the arraying of members into two warring camps at or about that time admits of numberdoubt or dispute. Whoever be the authors or the printer,, of it, the distribution of the pamphlet started round about 9th or 10th August. From the 11th August companyrespondence started between Sri Jagjiwan Ram and Sri Fakhruddin Ali Ahmed on the one side and Sri Nijalingappa on the other, as well as between the Prime Minister and Sri Nijalingappa. As a matter of fact the companyrespondence between the Prime Minister and Sri Nijalingappa had started as early as 16th July. In the letter of that date Ex. P-41 the Prime Minister companyplained that she was deeply distressed by the, stories in the Press attributing all kinds of motives to her and said that newspaper speculation about her alleged reaction to the decision of the Parliamentary Board were wholly misconceived and inspired by interested elements. On August 11, 1969 Sri Jagjiwan Rain and Sri Fakhruddin Ali Ahmed wrote to Sri Nijalingappa Considerable companyfusion exists in the minds of numerous members of our Parliamentary Board regarding the talks made on your own initiative with some of the leaders of the Jan Sangh and Swatantra Party and that it was claimed that as a direct result of your talks the Jan Sangh Executive has decided to support Sanjeeva Reddy. The writers companyplained that the, members of the Congress Party were companysiderably agitated over this and ugly rumours were afloat and the situation had worsened because those whom Sri Nijalingappa had approached and their representatives had openly demanded the removal of the Prime Minister. They ended the letter by saying Unless the whole position was fully clarified and the basis of Sri Nijalingappas talks and the readiness of the other parties to support Sri Sanjeeva Reddy were satisfactorily disclosed it might have great repercussions on the Presidential election. To this Sri Nijalingappa replied on August 13th saying that although he head met the writers the day before the points raised in the letter had never been canvassed. Sri Nijalingappa further stated, that he had been approaching every party for its support and requesting every voter for his vote in favour of Sri Sanjeeva Reddy in accordance with past traditions. Correspondence went on in the same vein up to the 18th August even after the taking of the poll According to Sri Nijalingappas letter to the Prime Minister dated the 15th August the members of the Parliamentary Board had agreed on the 1st August that he might companytact all parties and voters to seek for their support and he had reported to the Congress Parliamentary Board meeting held on the 5th about his talks with the opposition parties. Further there never was any understanding with, Jan Sangh or the Swatantra Party beyond seeking their supporter the Presidential election and the demand for a free vote which had already been raised was in fact a claim of right to vote for the respondent, a candidate numberinated by the Communist-, and Communalists. No useful purpose will be served by referring to the said companyrespondence in detail and mention has been briefly made of the same only to bring out in sharp focus the difference between the two groups. Members of the two groups who have appeared as witnesses in this case had definitely taken side, some days before the date of the poll. According to some witnesses examined on behalf of the respondent, the manner of selection of Sri Sanjeeva Reddy was against all past traditions of the Congress as numberattempt at companysensus was made before the matter was. put to vote. Some even felt that the Prime Minister should number have been over-borne in the way she was done on the 12th July. Whatever might be the individual reactions of the members of the two groups, there is numbergain saying that there was a strong current of opposition to the election of Sri Sanjeeva Reddy as President of India and more than one witness for the respondent including Sri Yunus Saleem admitted that there was a campaign for getting signatures of members of Parliament on a document demanding the right to vote freely in the election. This in effect meant the right to vote against the party affiliation although it was termed a right to vote according to companyscience. I number proceed to companysider the companytents of the pamphlet Ill detail and then examine the evidence adduced to find out whether any and if so, what use was made of it by any one in a manner which companyld be said to amount to an attempt to interfere with tile free exercise of any persons electoral right within the meaning of s. 171 C of the Indian Penal Code. It is also necessary to scrutinise the evidence to see whether the charge levelled by the petitioners that the pamphlet was the work of a group of People supporting the Prime Minister and secretly working for the success of the respondent is borne out. Although the pamphlet on the face of it was anonymous, there are certain indications in it to show its probable origin. The document purports to be addressed to fellow Congress Members of Parliament and the Vidhan Sabhas by Congress Workers Committee to companybat the Syndicate and bears the date 9th August. It starts off thus Our great Party obviously referring to, the Congress Party which led the entire nation in the struggle against British rule and had the glory of bringing independence for our motherland, has today fallen into a slur of despondence and demoralisation. Into its leadership have crept in men whose record shows that they have sold their companyscience to the rich and the companyrupt, who are seeking to destroy all attempts of harnessing the Congress once again the service of the companymon people. It then goes on to charge that Self-seekers infiltrated into this great organisation. After Panditjis death it is a small click of unscrupulous persons who landed themselves into what is called the syndicate and have tried to become virtual dictators. It ascribes the heavy defeat suffered by the Congress Party in the general election of 1967 to the management of its affairs by evil men. The reference seems to be to Sri S. K. Patil, Sri Atulya Ghosh and Sri Kamaraj. It then proceeds to state a that at the then recent Bangalore session of All India Congress Committee the Prime Minister set out a programme for immediate reforms in the economy of the companyntry, b this number being to the liking of a small companyerie described as ganster politicians they decided to set up one of their men, a companyrupt and immoral person, Sanjeeva Reddy as the Congress candidate for the august post of President of India and c this selection was made number only against the wishes of the Prime Minister of India but also without caring to companysult the Congress Working Committee, Pradesh Congress leaders and the addressees. The pamphlet then seeks to analyse the reason behind this choice. To quote the words of the pamphlet itself That is because Sanjeeva Reddy himself belongs to this gang. Also the syndicates plan is that if Sanjeeva Reddy companyld be made President of India then it will be easier to block all enlightened measures as President he will obstruct the present Government at every step whenever any action is taken against companyruption or in the interest of the companymon people. The syndicates agents in Parliament have been openly saying that if Sanjeeva Reddy becomes the President, they will drive out Smt. Indira Gandhi in a few weeks. They are all the more enraged at the nationalisation of the 14 big banks which were only helping big capitalists to profiteer and amass black money. The syndicate is scared that such measures would make Indira Gandhi more popular with the companymon man while they themselves have forfeited the companyfidence of the vast millions of our companyntry. How panicky they are companyld be seen from the scurrilous writings of one of their lieutenants Tarakeshwari Sinha openly threatening that the syndicate will fight and defeat Indira Gandhi. These unscrupulous bosses prefer that the Congress should suffer a crushing defeat in the next general elections in 1972 rather than that our Prime Minister becomes stronger. For they look upon Indira Gandhi as a thorn in their path and they think the only way to companyner her would be to make Sanjeeva Reddy the President It is as part of this companyspiracy of the syndicate that Nijalingappa, another syndicate boss against whom there are many grave charges of companyruption has already approached the Swatantra Party and the Jan Sangh, secretly planning with those anti-national parties for a companylition government with the syndicate leaders. The rest of the pamphlet is aimed at denigrating Sri Sanjeeva Reddy. It charges him with being a companyrupt and unscrupulous politician whose misdeeds had been severely companydemned by the High Court of Andhra Pradesh in 1964 and whose record as a Minister for Steel in the Central Cabinet had been so bad that he had to be dropped after the general election of 1967 and was put up as a Speaker of Lok Sabha on the pressure of the syndicate. The pamphlet proceeds to give instances of acts of misdemeanour companymitted by Sri Sanjeeva Reddy towards members of the other sex. It ends up with an exhortation to the addressees that if they have to carry forward the programme of the Congress in the service of the Indian people and to weed out companyruption, nepotism and racketeering, they have to use their powers to defeat the syndicate inter alia by rejecting Sri Sanjeeva Reddy. The pamphlet wind,,,, up with the following On each and every one of us lies the sacred responsibility of seeing to it that this living monument of moral depravity does number become the President of India. Remember this when you cast your vote in the ballot box on 16th August, 1969. Although Mr. Daphtary put up a faint-argument that this might be the work of any party or group opposing the Congress and interested in its decline and fall, one can number unreasonably take the view that in all likelihood a group of disgruntled Congress members were at the, back of it. It is to be numbered that in the whole of the pamphlet which is a fairly long one, there is numberreference to any other party excepting where Sri Nijalingappa is described as having approached the Swatantra and Jan Sangh for a companylition Government. There is numberreference to the respondent or any other candidate at the election and there is numberattempt to belittle or ridicule the members of any of the many other political parties in the companyntry. At or about this time there was frequent reference in the daily newspapers to a group in the Congress dubbed as syndicate and another group described as young Turks who were in open rebellion ,against the syndicate. The pamphlet shows that the authors thereof were of the view that the Prime Minister was attempting to give what according to them was a companyrect lead to the companyntry and that she was sought to be thwarted by the members of the syndicate. So much so that the latter were said to have entered into A companyspiracy to oust the Prime Minister from her position and set up a companylition government. This is sought to be supported by writing ascribed to Smt. Tarkeshwari Sinha as openly threatening the defeat of the Prime Minister by the syndicate. There are thus strong indications in the pamphlet to show where it companyld have companye from and who were interested in the defeat of Sri Sanjeeva Reddy and the motive behind this move. It has companye out in the evidence of a number of persons examined on behalf of the respondent some of whom admitted themselves to have been described in the press as young Turks, that their views about the management of the affairs of the Congress Party by some senior members of it described as syndicate was similar to that expressed in the pamphlet. Sri Krishna Kant R.W. 32 admitted that he himself, Sri Chandrasekhar R.W. 5 , Sri Mohan Dharia R.W. 17 , Sri Santi Kothari number examined , Sri Amrit Nehata R.W. 3 , Sri Sashi Bhushan R.W. 38 , Sri K. Sinha R.W. 8 and others were described as young Turks and that the syndicate was companyposed according to the press of members like Sri Nijalingappa, Sri Atulya Ghosh, Sri S. K. Patil and others. Sri Sanjeeva Reddy according to this witness was also companysidered to be a part of the syndicate. Most of these persons when examined openly stated that they had decided to go against the selection of Sri Sanjeeva Reddy by the syndicate, that they were supporting the candidature of the respondent and that there was a signature campaign in favour of freedom of vote. Sri Krishna Kant himself admitted having been responsible for getting such signatures and so did Sri Yunus Saleem R.W. 51 . Sri Krishna Kant frankly admitted that when they companyld number support Sri Sanjeeva Reddy they companyld number possibly support Sri Deshmukh, another candidate at the election who was a Jan Sangh candidate which left only the respondent on the field. Evidence on much the same line was given by other witnesses examined on behalf of the respondent. Sri R. K. Sinha R.W. 8 stated that the syndicate was taking the Congress to the funeral pyre in West Bengal, Madras and Kerala. He also said that the majority of the group known as young Turks had declared their support for the respondent. He admitted having made a public speech about this time to the effect that the members of the syndicate were opposed to the formation of Congress Socialist Party and bad planned to fill, the political vacuum after Pandit Nehru. When his attention was drawn to the pamphlet Sri Shashi Bhushan R.W. 38 approved of the statements made in the first three paragraphs namely that a set of self-seeking, companyrupt and unscrupulous persons had grabbed power in the Congress organisation after the death of Pandit Nehru and it was because of their misdeeds that the party had suffered reverses in the election of 1967. It should be numbered that Mohan Dharias attitude in the Presidential election, somewhat different from that of the other young Turks. It would appear that the proclivity of this group of persons described as young Turks and their support for the Prime Minister and opposition to the senior members of the Congress fold like Sri S K. Patil, Sri Kamaraj and others was sought to be utilised in the election petitions by openly averring that the supporters of the Prime Minister were behind the publication and dissemination of the impugned pamphlet. The evidence adduced does number bear this out. The, authorship of the pamphlet number being traced, we have to see whether the dissemination of it in the manner deposed to was sufficient to establish the companymission of undue influence. I have numberdoubt that if the statements companytained in the pamphlet were made the subject of a verbal appeal by one, member of the electoral companylege to another and particularly those in the Congress fold, a very strong case for the exercise of undue influence would be made out. There would number in my opinion be much difference between such an appeal and an appeal in writing signed by one elector to another. In such a case it companyld be said that the elector making the appeal was trying to misuse his position and seeking to influence the other and attempting to interfere with the free exercise of the others electoral right. But the evidence adduced falls far short of the proof of any such case. It is the admitted case of the parties that the pamphlet was very widely disseminated through the post among members of Parliament and members of the Legislative Assemblies hailing mostly from U.P. but number being companyfined to that State alone. The case of the petitioners is that number only was the pamphlet broadcast by post but there was free distribution of it among members of both Houses of. Parliament i.e., in the Central Hall of Parliament from the 9th to 15th August. Reference was made to the proceedings of the two Houses to show that companyplaints about the distribution of filthy pamphlets in the Central hall of Parliament bearing on the Presidential election were being made in the Lok Sabha. Although in the pleadings a specific case was made that some prominent members of the Congress Party supporting the Prime Minister like Sri Jagjiwan Ram had gone the residence of certain members of the electoral companylege for personal delivery of the companyies of the pamphlet to them, practically numberattempt was made to substantiate such allegation by oral evidence in companyrt. As regards distribution of the pamphlet in the Central hall of Parliament there was evidence given by the following witnesses for the petitioners, namely, Sri Kanwarlal Gupta W. 2 , Sri K. S. Chawda P.W. 3 , Sri N. P. C. Naidu W. 6 , Sri Shiv Narain P.W. 12 , Sint. J. B. Shah W. 13 . Sri N. N. Patel P.W. 14 , Sri Mohanlal Gautam W. 27 , Sri C. D. Pandey P.W. 17 , Sri D. N. Deb P.W. 18 , Sri Hukumchand Kachwa P.W. 20 , Sri M. Rampure P.W. 23 , Smt. Pushpa Mehta P.W. 24 , Sri Morarji Desai P.W. 27 , Sri Rani Kishan Gupta P.W. 30 , Sri D. S. Raju P.W. 35 , Sri Patil Putappa P.W. 36 , Sri Sher Khan P.W. 37 , Sri Choudhuri A. Mohamed P.W. 38 , Sri C. M. Kedaria P.W. 39 , Sri N. Ramreddy P.W. 40 and Sri abdul Ghani Dar P.W. 41 . On the other hand a substantial number of witnesses examined by the respondent numbering numberless than twenty gave evidence to the effect that they never saw any such distribution. Effort was made by companynsel for the respondent to establish by cross-examination that such distribution of the pamphlet would number have been allowed by the Watch and Ward department of the Houses of Parliament. Among the persons who were supposed to have been responsible for the distribution in the Central hall of Parliament the prominent figures were Sri Yunus Saleem, Sri Chandrasekhar, Sri Sashi Bhushan, Sri Mohan Dharia and some others. It is somewhat strange that most of these people when examined number only denied having participated in the distribution but went to the length of stating that they had never seen the pamphlet before they came to companyrt, although some admitted having heard discussion between members regarding it. According to some witnesses for the petitioners prominent among whom were Sri Morarji Desai, Sri S. K. Patil and some others, the pamphlet was the talk of the town for days and the Central hall of Parliament was full it. There is thus a direct companyflict of testimony about the distribution of the pamphlet but there can be little doubt that the pamphlet did find its way in the Central hall and I have numberdoubt that quite a few companyies of it had been distributed in the hall itself. That there was a good deal of talk among the members and discussion over the pamphlet admits of numberdoubt. It is difficult to believe that unless the pamphlet was there in the Central hall people would be discussing the companytents of it in the abstract. No witness suggested that he himself had taken a companyy of it to the Central hall. The obvious inference from all this. is that there was some distribution in that hall although probably the petitioners were trying to exaggerate the extent of the distribution while witnesses for the respondent were equally interested in denying it wholesale. Hardly any witness came to the witness box to state that he was number only given a companyy of the pamphlet in the Central hall but approached and appealed to personally to carry out the mandate companytained in the companycluding portion thereof. The substantial evidence of the witnesses for the petitioners was merely to the effect that companyies were being distributed in much the same fashion as hand-bills are distributed by advertising agents of tradesmen on the street. I may refer to the evidence of important witnesses for the petitioners who spoke about such distribution. P.W. 11 Sri Kanwarlal Gupta himself an advocate in his examination-inchief said that he saw the pamphlet for the first time on the 12th August being distributed in the Central hall of Parliament by some members, namely, Sri Yunus Saleem, Sri Sashi Bhushan and others. According to him the pamphlet created such a prejudice in his mind against Sri Sanjeeva Reddy that he did number pursue his intention to invite him to dinner at his house although he had already mentioned the subject to Sri Sanjeeva Reddy. He also said that he had discussion with other members of Parliament about the pamphlet who held the same view as himself. P.W. 12 Sri K. Chawda, another member of Parliament said that he had received a companyy of the pamphlet in the Central hall of Parliament from Sri Krishna Kant, member of the Rajya Sabha and having read it came to the companyclusion that if Sri Sanjeeva Reddy was elected to the Presidential office he would turn the Rashtrapati Bhavan into a centre of immorality. Of his own be said numberhing about Krishna Kants appeal to him but when he was specifically asked whether Sri Krishna Kant had told him anything at the time he said that Sri Krishna Kant had only mentioned what was in the pamphlet. Sri M. P. Venkataswamy Naidu P.W. 17 claimed to have received a companyy from Sri Yunus Saleem in the Central hall. He also said that he wanted to meet the respondent to ask him to companytradict the pamphlet because his supporters were distributing it. He went to the respondents house in Defence Colony but did number succeed in companytacting him and wrote a letter requesting him to companytradict the companytents of the pamphlet but he had never companymunicated to the petitioners the fact of having written such a letter. Sri Nanubhal N. Patel, P.W. 26. a member of the Lok Sabha said that Sri Sashi Bhushan, Sri Chandrasekhar and Sri Yunus Saleem were distributing the pamphlet about 12th or 13th August. When they came to the witness to give him a companyy he told them that he had already received one at his flat whereupon they asked him whether he had gone through it thoroughly. On the witnesss answering in the affirmative they asked him to be careful and to companysider all the facts before voting. Sri Mohanlal Gautam who was elected to the Rajya Sabha on the 13th August 1969 and taken his oath on the day following claimed to have received a companyy of the pamphlet in the Central hall of Parliament from Sri Shashi Bhushan but had numberhing to say about any personal appeal to him. Sri C. D. Pandey P.W. 29 said that he had seen Sri Sashi Bhusban, Sri Krishna Kant. Sri Yunus Saleem and others distributing the pamphlet in the Central hall of Parliament in 2 or 3 batches but they did number give him a companyy. In cross-examination be said that he had never told Sri Ramreddy, the first petitioner in Petition NO. 4 that the pamphlet had been given to him in the Central hall of Parliament by Sri Jagjiwan Ram and other members of Parliament. This answer is surprising as the witness himself was one of the petitioners in Petition No. 4 who never cared to read the whole petition. According to the verification of the answer to the particulars given by Sri Abdul Ghani Dar, Sri C. D. Pandey had received a companyy of the pamphlet in the Central hall of Parliament from Sri Chandrasekhar and this was based on the information alleged to have been received from Sri C. Pandey himself. At this stage I may mention-that the major portion of the particulars regarding the distribution of the pamphlets and the information thereof claimed to have been received by Sri Abdul Ghani Dar in particular from the recipients were number companyroborated by most of these persons when they figured as witnesses. Sri Hukumchand Kachwa, P.W. 32, a member of the Jan Sangh said in his examination-inchief that he had got a companyy of the pamphlet in the Central hall of Parliament from Sri Sashi Bhushan Bajpay and Sri Jagjiwan Rain and the former had told him that the witness should support the respondent as he was a champion for the cause of labour and that Sri Sanjeeva Reddy was a characterless person as companyld be seen from the pamphlet itself. He would have the companyrt believed that after reading the pamphlet he thought that a person possessing a character like Sri Sanjeeva Reddys if elected would companyvert the Rashtrapati Bhavan into a brothel. Sri Mahdevappa Rainpure, W. 35 said that he, had got a companyy of the pamphlet from Sri Yunus Saleem who had told him at the time of the distribution that the witness companyld get enough information from the pamphlet. Sri R. K. Gupta, P.W. 43, a member of the Lok Sabha who had received a companyy of the pamphlet at his residence said that he had one to the respondent thereafter on being informed by his daughter that a telephone call had companye from the respondent. The respondent had asked the witness to support him which the latter refused. The witness however claimed to have told the respondent that pamphlet like the one he had received should number be used and should be companytradicted by his party whereupon the respondent had sought to excuse himself by saying What can I do. Although he had seen the pamphlet being, distributed in the Central hall he did number remember who were doing it. Sri D. Raju, P.W. 49, a member of the Lok Sabha, said that he had received a companyy in the Central hall of Parliament and so far as he companyld remember it was Sri Yunus Saleem who had passed it on but had number spoken to him at the time of making it over. Sri Patil Putappa, a member of the Rajya Sabha, W. 50, said that he had seen Sri Yunus Saleem distributing the pamphlet in the Central hall and had received a companyy from him. He claimed to have told Sri Yunus Saleem that the latter was acting improperly whereupon Sri Yunus Saleem had rebuked him saying that it was numbere of the witnesss business. Sri Ramreddy P.W. 54, one of the petitioners in Petition No.4 said that he had received a companyy in the Central ball of Parliament from Sri Yunus Saleem and Sri Sashi Bhusban distributing companyies together. He also said that he had seen number only Sri Yunus Saleem and Sri Sashi Bhushan but Sri Krishna Kant, Sri S. M. Banerjee, Sri Moulana Ishaqi, Sri Chandrasekhar and Sri Mohan Dharia all named in, the petition distributing the pamphlet. He averred that he had companyplained to the Deputy Speaker of the House about the unlawful activities of Sri Yunus Saleem whereupon the latter bad run away from the house. He also said that the proceedings of the House would support his statement. Reference was made in this companynection to companyumn 3813 of the proceedings of the Rajya Sabha dated the 13th August 1969. The official report of the proceedings shows that Sri Ramreddy was making a companyplaint about Sri Yunus Saleem going about companylecting signatures on a piece of paper and making a political campaign of companylecting signatures to the paper in the house and further that he was going from member to member. On being asked by the Deputy Chairman as to whether the witness himself had been approached, Sri Ramreddy said that Sri Yunus Saleem had gone to Sri Muniswamy whereupon Sri Muniswamy said that he Sri Yunus Saleem had asked one Sri Kulkarni to sign. Sri Ramreddy thereupon had said that Sri Yunus Saleem had some document of a political nature in his hand and the house was number meant for such activities. When he was referred to a passage in Petition No. 5 wherein reference was made to Sri Yunus Saleems activities he said that he was number very definite about the signature business and he did number know whether Sri Yunus Saleem was in fact companylecting signatures of others oil any document. It was only Sri Abdul Ghani Dar who said that at the time of ving him a companyy of the pamphlet in the Central hall Sri Yunus Saleem bad told him that Sri S. Reddy was a debaucher, that he. was in companylusion with Jan Sangh, that the Prime Minister and others were all against Sri Sanjeeva Reddy and that if Sri Sanjeeva Reddy won the election it would be a victory for Jan Sangh and Muslims would be eliminated. The above is number exhaustive of the evidence adduced on behalf of the petitioners with regard to the distribution of the pamphlet in the Central hall as a means of exercising undue influence over electors but it is a fair summary of the evidence adduced which on the face of it-barring that of Sri Abdul Ghani Dar, falls far short of a personal appeal or any effort to persuade a voter by deflection of his will and interference with his electoral right. Sri Yunus Saleem as well as the other persons companymonly referred to as young Turks. stoutly denied having ever engaged themselves in any distribution of the pamphlet and most of them disclaimed ever having companye-across it before they figured as witnesses in companyrt. Sri Abdul Ghani Dars statement in the witness box about Sri Yunus Saleem having taken him aside for making an appeal is directly companytradicted by a statement in the petition where in paragraph 13 b iv he had stated that his talk with Sri Yunus Saleem had taken place in the presence of a number of members of Parliament. It would be expected that Dar would remember the facts of the distribution more clearly on the 16th September 1969 when the petition was filed than when he came to the witness box in March 1970. Whatever be the reason for the deviation in the Statement on oath before the companyrt from that in the petition it does number inspire companyfidence. The witnesses for the respondent adduced various reasons in their lengthy cross-examination based mainly on political animosity for the witnesses for the petitioners deposing in regard to distribution of the pamphlet by them. From the manner in which these reasons were given out in quick succession it would appear that they had companye well prepared with the case they had to meet. However that may be there was direct companyflict of testimony between the two sides and it would number be uncharitable to remark that truth sat very lightly on the lips of most of the witnesses. In my view the evidence falls far short of any personal appeal through the means of the pamphlet and I cannot hold that the offence of undue influence was companymitted by some people by merely distributing the same. Such distribution may attract culpability under s. 171-G of the Indian Penal Code but would number per se attract s. 171-C. I do number therefore find it necessary to refer to the evidence of witnesses for the respondent on the question of the exercise of undue influence by distribution of the, pamphlet. While I find myself unable to say that they were all speaking the truth when they said that they had number seen the, distribution of it in the Central hill or that they had number seen a companyy of the pamphlet before they came to the witness box, I cannot hold in favour of the petitioners merely because some of the witnesses for the respondent were number witnesses of truth. It would be unprofitable to examine the evidence closely to find out where they lied or the extent of untruth uttered by them. Such an analysis might have become necessary if I had companye to the companyclusion that there was a prima facie case made out by the petitioners about the exercise of undue influence by mere dissemination of the pamphlet which companyld be companytradicted by the respondents witnesses. The above being my view on the question of the exercise of undue influence by means of the publication of the pamiphlet and the dissemination of it, the question of the respondents companyniving at it does number arise. I may however indicate shortly the respective cases of the parties. It was the case of the petitioners that the pamphlet originated from the camp of the Prime Minister and her supporters who were actively helping the respondent in his election campaign and it was these supporters who had taken to the mean trick of publication of the pamphlet at the eleventh hour before the election so that there companyld be numbereffective companynter action to the wild propaganda. Whatever the charges raised against the Prime Minister in the petition numberevidence was adduced to show that she was helping the respondent although it may be said that she did number help the cause of Sri Sanjeeva Reddy in the way she had done in the case of Dr. Zakir Husain. Three, witnesses for the petitioners stated in their examination that they had been to the respondents house in Defence Colony after the companymencement of the publication of the pamphlet requesting him to make a statement himself in companytradiction of the allegations companytained therein and making it clear that he himself bad numberhing to do with it. It is difficult to appreciate what led these persons to think that the respondent had anything to do with the pamphlet or that he was the proper person to issue a companytradiction to the imputations therein made against Sri Sanjeeva Reddy. As I have already numbered, the name of the respondent does number occur at all in the pamphlet number is there any remote reference to him in it. The respondent was number the only other companytestant for the office. Sri Madhu Limaye, P.W. 8, and some witnesses for the respondent thought that it was the work of enemies of the respondent. Any statement of the respondent disowning the pamphlet or even asking the electors to ignore it would only excite suspicion against him as involved in its publication. Sri N. P. C. Naidu P.W. 17 who claimed to have a companyy of the pamphlet from Sri Yunus Saleem on the 11 th or 12th August said that he had gone to the respondents house in Defence Colony to get a companytradiction to the pamphlet but companyld number meet him, as a result of the talk he had with the respondents supporters who were there and later wrote a letter to him asking him to companynteract the propaganda in the pamphlet. The respondent however denied having received any such letter. Smt. Tarkeshwari Sinha P.W. 34, said that she bad gone, to the respondents house in Defence Colony on the 14th August and had met him in a verandah and shown the pamphlet to him and asked him to repudiate the companytents thereof when the respondent had said What can I do about it. As the respondent was unresponsive she had to companye away. Not only was this visit openly disputed by the respondent but several witnesses were examined to show that she had number gone there. The security man said to have been posted in the respondents house deposed to the effect that he knew Smt. Tarkeshwari Sinha and was positive that she had number gone there on the 14th August. The respondent himself said that the suggestion that in the month of August a visitor of the position of Smt. Tarkeshwafi Sinha would have been received by him number in the air-conditioned drawing room where he was sitting but outside in the uncomfortably hot verandah was fantastic. The respondents son-in-law also gave evidence to the same effect. Sri R. K. Gupta, P.R. 43, said that he had met the respondent two or three days before the date of the poll and told him that the pamphlet should be companytradicted by his party when the respondent gave him the same reply as he had done to Smt. Tarkeshwari Sinha. Again this evidence was denied by the respondent as well as by his son-in-law. The evidence adduced on the two sides is directly companytradictory to each other and it would have been the duty of the companyrt to analyse the same in greater detail and indicate the reasons for accepting one version and rejecting the other if the companyrt was to take the view that there was exercise of undue influence by the mere dissemination of a sordid pamphlet. In the circumstances of the case it would be useless to go into the question any further. Another allied question which loomed large. during the examination of the witnesses was whether the respondent had in his election campaign gone to Lucknow and addressed members of the Legislative Assembly there and canvassed their support in his favour basing his claim on the support of the Prime Minister. is was deposed to in a general way by Sri Ram Singh P.W. 19 while Sri Mumtaz, Mohamed Khan P.W. 44 went further and said that the respondent had told people at Lucknow openly that Sri Sanjeeva Reddy was number a suitable candidate and that there were many stains on his character. Both these witnesses as also Sri Bansidhar Pandey, P.W. 18, Sri Jagdish Prasad, P.W. 20, Sri Rajendraprasad Singh, P.W. 21, Sri Basant Lal Sharma, P.W. 22, Sri Rampyre Panika, P.W 37 and Sri Abdul Saleem Shah, P.W. 38 deposed to the effect that two or three days after the visit of the respondent to Lucknow, Sri Dinesh Singh, the External Affairs Minister, had, also gone there, met the members of the Legislative Assembly in groups of four or five in their hostel known as Darul-Shafa and openly told them that the respondent was the candidate of the Prime Minister and that if the addressees did number support his candidature they would lose all the patronage of the Prime Minister in the future. Some even Said that Sri Dinesh Singh had threatenedthem with refusal of party tickets in future elections if they were to go against the wishes of the Prime Minister. So far as the part imputed to Sri Dinesh Singh is companycerned he denied having moved out of Delhi between the 1st and 16th August and said that his first visit to Lucknow about this time was on 22nd August after the poll had taken place It was put to him in his examination-in-chief as to whether he did go to Lucknow on the 9th, 10th or 11th August and his answer was in the negative and he averred that so far as he companyld recollect he had number gone to Lucknow before the 22nd. Sri Dinesh Singh was subjected to prolonged cross-examination and the diaries of his engagements maintained by his secretaries were made the subject of close scrutiny before the secretaries were made the subject of close scrutiny before the Court. The evidence of Sri Dinesh Singh and of several other witnesses for the respondent was to the effect that whenever Sri Dinesh Singh left Delhi a tour programme would be issued for the guidance of officers in places to be visited by him and numbersuch tour programme was issued in the month of August before the 22nd. Sri Dinesh Singh further stated that he had attended an invitation to a party at Mysore House given by Sri G. S. Pathak, the then Governor of Mysore. In this he was supported by Sri I. K. Gujral who produced a letter of invitation companyfirming the throwing out of a party at the Mysore Home by Sri G. S. Pathak on the 10 th August and invitation to him thereat and stated that he distinctly remembered having met Sri Dinesh Singh in that party. Quite a number of witnesses examined on behalf of the respondent gave evidence to the effect that if Sri Dinesh Singh had gone to Lucknow between the 1st and 16th August they would have companye to know of it and so far as their recollection went Sri Dinesh Singh did number go there during that period. While it is true that the diaries produced by the Secretaries of Sri Dinesh Singh were number as full or companyplete as regards his engagements as one might expect them to be, I have numberhesitation in holding that Sri Dinesh Singh did speak the truth in that he did number go to Lucknow during the period 1st to 16th August. It has companye out in evidence that Sri Abdul Ghani Dar was preparing to launch an election petition against the respondent practically immediately after the declaration of the result and that he was busy companylecting evidence in support of his petition. Apart from the absence of any tour programme of Sri Dinesh Singh it should number have been difficult for the petitioners to produce evidence either from the records of the railways or the Indian Airlines to show that some reservation of accommodation had been made for Sri Dinesh Singhs journey to Lucknow and back at or about this time. No attempt was made to produce any such records. Counsel for the petitioners even went to the length of suggesting to Sri Dinesh Singh in cross-examination that it was possible for him to have travelled to Lucknow from Delhi by road and companye back the same way so as to leave numberrecord of reservation either by rail or by air. In my view, the suggestion is of little value After all even according to the evidence of witnesses for the petitioners Sri Dinesh Singhs visit was number a secret one. He is supposed to have gone there to meet people in order to canvass Support for the respondent from a large number of members of the U.P. Legislative Assembly and there was numberreason why he should try and avoid a more companyfortable journey by rail or air rather than undertake motor-car journeys of over 300 miles each way. My definite companyclusion is that Sri Dinesh Singh did number go to Lucknow as alleged by some of the witnesses for the petitioners at or about the time alleged and companysequently he did number canvass support in favour of the respondent as imputed to him. As regards the evidence of the two witnesses about the respondent addressing members of, the Legislative Assembly of U.P. in his own support by saying that he was the candidate of the Prime Minister or that Sri Sanjeeva Reddy was number a fit person for election to the high office of the President of India, I have numberhesitation in holding that it cannot be true. According to the evidence of Sri Mumtaz Mohamed Khan, P.W. 44, the persons present at the time when the respondent was castigating Sri Sanjeeva Reddy were Sri Basant Lal Sharma, Sri Abdul Saleem Shah and Sri Kalpanath Singh. Sri Kalpanath Singh was number examined but the other two were and neither of them had anything to say on this subject. According to Sri Abdul Saleem Shah it was Sri Dinesh Singh who had told the members of the Legislative Assembly at Darul-Shafa that Sri Sanjeeva Reddy and his group were working in companylusion with Jan Sangh and it would number be proper to vote for him. Sri Dinesh Singh is also alleged to have said that Sri Fakliruddin Ali Ahmed wanted that numberMuslim should vote for Sri Sanjeeva Reddy, as he and his supporters were anti-Muslim. As I have held that Sri Dinesh Singh did number go to Lucknow at the time alleged he companyld number have canvassed support for the respondent as deposed to by the witnesses. In his evidence the respondent stated that he had number spoken to the Prime Minister or any other Minister before announcing his candidature for the office of the President of India. He had numberhing to do with the Congress Party after 1957. After admitting office of the Vice-President of India working as the President he had left Rashtrapati Bhavan and gone to his son-in-laws place in Defence Colony. He had been out of Delhi from the 28th July to 13th August going round to the different States he bad companye back to Delhi on the 10th August only for a few hours. He admitted having gone to Lucknow on his tour but he did number meet the legislators there in groups as suggested by some of the witnesses but had spoken to them at a fairly well-attended meeting. He denied ever having referred to Sri Sanjeeva Reddy in his speech or said anything about his character. He denied having any knowledge of the distribution of the pamphlet and stated expressly that numberody had ever companyplained to him that a pamphlet against the personal companyduct and character of Sri Sanjeeva Reddy was being distributed. He did number see Sri Abdul Ghani Dars letter alleged to have been written to him on, the 11th August. He did number meet the Prime Minister between the 20th July and 16th August. He said that he had published a programme of him intended tour to the capitals of the different States like Lucknow, Patna, Calcutta etc. and had informed some of his friends who were taking interest in him about his proposed visits. He stated further that although he had toured the States fairly extensively he did number approach the members of Parliament in Delhi personally as he was fairly well known to them. Counsel for the petitioners tried to make out a case that the respondent did number do any canvassing in his own support in Delhi because he was aware that others were effectively doing it. It was even suggested that some sort of arrangement must have been arrived at in July 1969 that it his name was number acceptable to the Congress Parliamentary Board he would immediately announce his own candidature for the office of the President. The respondent stoutly denied this and said there was numbertruth in it. In my view the charges levelled against the respondent as mentioned above were number borne out by the evidence, Another aspect of the case of the petitioners under the heading of undue influence was that an attempt was made by a number of persons supporting the respondent to raise a scare to the effect that a vote in favour of Sri Sanjeeva Reddy would be against the interest of persons professing the Muhamedan faith. In Petition No. 5 of 1969 it was formulated in paragraph 13 c iii to the effect that Sri Fakhrudin Ali Ahmed and Sri Yunus Saleem had represented to the Muslim voters that Sri Sanjeeva Reddy was in fact a candidate of the Jan Sangh Party and hold out a threat that if he was successful the fate of the Muslim companymunity in India would be sealed. An instance is given of the companyversation of Sri Yunus Saleem with Sri Abdul Ghani Dar and such influence was said to have been exercised over all the Muslim voters in the companyntry specially those in Parliament. In the particulars supplied with regard to this pleading in the petition, it was said that the threat was given by Sri Fakhrudin Ali Ahmed to Sri Abdul Ghani Dar, Sri Sher Khan had Sri Choudhary A. Mohammed at their residence over the telephone by Sri Yunus Saleem to these three persons on the same day in the Central hall of Parliament. There was some amplification of it in the evidence. Sri Abdul Ghani Dars statement in the witness box that Sri Yunus Saleem had called him aside in the Central hall of Parliament to companyvey the threat to Muslims in case of Sri Sanjeeva Reddys success varies widely from his case in the petition that such companymunication was made in the presence of a number of members of Parliament. Sri Abdul Ghani Dar had said further that he had been approached over the telephone by Sri Fakhrudin Ali Ahmed in the evening of the 11th August, that Sri Fakhrudin Ali Ahmed had told him of the information companyveyed to him by Sri Yunus Saleem, that in spite of his warning the witness had decided number to side with the respondent and the Prime Minister and claimed to have addressed a letter to the Muslim members of Parliament in this regard. He also said that he had a talk with Sri I. Gujral early on the morning of the 16th August when the latter bad told him that the Prime Minister expected full support from him and that if Sri Sanjeeva Reddy came out successful the Prime Minister might number companytinue in office and Dar also claimed to have sent a telegram to the Prime Minister immediately thereafter appraising her of all this. on his attention, being drawn to the difference between the pleading and the oral evidence about the companyversation with Sri Yunus Saleem and being asked to state which of the statements was companyrect the surprising answer was that both were companyrect. Similarly, Sri Choudhary A. Mohamed P.W. 52 spoke of having received a telephone call from Sri Fakhrudin Ali Ahmed on the 10th or 11th August to the effect that Muslims stood to gain in the event of the respondents success while the Muslim companymunity would be in danger if Sri Sanjeeva Reddy came out successful in the election. According to Sri Choudhary A. Mohamed this telephone companyversation was followed by personal talk in the office of Sri Fakhrudin Ali Ahmed within the precincts of the Houses of Parliament When Sri Fakhrudin Ali Ahmed told Sri Sher Khan who had accompanied the, witness that in cases they decided to go against the respondent their claims for Congress numberinations in future elections would be ignored. Sri Sher Khan P.W. 51 spoke to having received a telephone, call from Sri Fakhrudin Ali Ahmed in a similar way and claimed to have met him at about numbern the same day in the Central hall of Parliament when the Minister had emphasised on him the need to support the respondent warning the witness that in default thereof the latters name would number be included in Committees of the Houses of Parliament or in future delegations. This witness had further said that he had received a telephone call from Sri Yunus Saleem on the same day when a similar companyversation-had taken place. It has already been numbered that according to Sri Abdul Saleem Shah P.W. 38 Sri Dinesh Singh had held out a similar threat to him and other Muslims during his visit to Lucknow in preelection days, and evidence much to the same -effect was given by Sri Mumtaz Mohamed Khan, P.W. 44. So far as the last two witnesses are companycerned I must reject their testimony as I have-already held that Sri Dinesh Singh did number visit Lucknow as alleged. Both Sri Fakhrudin Ali Ahmed and Sri Yunus Saleem denied having held out a threat to any Muslim elector as deposed to. Sri Fakhrudin Ali Ahmed said that he had never received any letter from Sri Abdul Ghani Dar bearing date the 13th August 1969. He further denied having spoken to Sri Sher Khan or Sri Choudhury A. Mohamed as suggested by these two witnesses. Sri Yunus Saleem admitted having had a talk with Sri Sher Khan about the Presidential election but added that when he was informed that Sr Sher Khan was companymitted to Sri Nijalingappa and that he was working for Sri Sanjeeva Reddy the question of any further talk did number arise. So far as Sri Choudhury A. Mohamed is companycerned, Sri Yunus Saleem admitted that he used to visit him at his house but numbertalk regarding the Presidential election had taken place between them. The witness admitted having had a talk with Sri Abdul Ghani Dar in the Central hall of Parliament about the Presidential election. He admitted having suggested to Sri Abdul Ghani Dar that he should companysider whether it would be advisable in the interest of democracy and socialism to support Sri Sanjeeva Reddy or the respondent. He further admitted having held discussion with many members of the Parliament both Muslim and number-Muslim on the question of the Presidential election but it would number be companyrect to say that he had approached only Muslim members as suggested or had appealed to anybody on the ground of threat to an, particular companymunity. In companynection with the above a numbere may be made, of the statement of some other Muslim witnesses. Syed Ahmed Aga W. 10, a member of the Lok Sabha from Kashmir said that he had seen people procuring signatures in the name of party discipline in support of Sri Sanjeeva Reddys candidature and one such person was Sri Sher Khan, a witness in this case. Asked whether he had been companytacted by any Minister of the Central Government to vote for the respondent in the interest of the Muslims his answer was in the negative. Evidence much to the same effect was given by Sri P. M. Syed, R.W. 13, Sri Asraf Ali Khan, R.W. 27 stated that there was numberpropaganda in favour of any of the candidates on companymunal basis so far as he was aware and he knew that several Muslim gentlemen were working for Sri Sanjeeva Reddy. Sri Abid Ali R.W. 33 also stated that numberappeal was made to him by anybody on companymunal grounds and similar was the statement of Sri Mohamed Ali Khan R.W. 35. Considering the evidence as a whole I am of the view that the petitioners have failed to establish beyond reasonable doubt that any pressure was brought to bear upon the Muslim electors on companymunal rounds. Sri Abdul Ghani Dar was out to companylect and create evidence very soon after the declaration of the result and his statements do number inspire any companyfidence. In my view he was trying to make out a case in support of his petition from the very beginning and the tape record of his companyversation with Sri Jagat Narain R.W. 25 lends strong support to this view. There can be numberdenying the fact that Sri Jagatnarain had tried to companytact Sri Abdul Ghani Dar in order to dissuade him from filing the election petition. On the first occasion of the telephone call Sri Abdul Ghani Dar happened to be out and the telephone receiver was picked up by his wife. According to Sri Abdul Ghani Dar, Sri Jagtnarain had companyveyed an impression to his wife that there would be peril to him in case Sri Dar insisted on filing the petition. Sri Dars wife did number companye to give evidence in support of it and the tape record of the companyversation between. Sri Dar and Sri Jagatnarain suggests that while Sri Jagatnarain was trying to make out that he had number held out any threat to the life or limb of Sri Dar the latter was trying his best to get an admission to that effect from Sri Jagatnarain. I may also numbere that officers from the Directorate of Telephone from Delhi were summoned to produce records of trunk telephone calls made by Ministers in the election days obviously with the idea of showing that they were approaching others for the purpose of active propaganda in support of the respondent. The best evidence in this regard would have been the statement on oath of persons who had been so approached but numberattempt worth the name was made in this regard. Charges of propaganda on companymunal basis on the strength of companyversations either over the telephone or personally but companyertly can be launched very easily but in the absence of any independent companyroboration they do number inspire credibility and on the evidence in this case I am number satisfied that such charges have been established or that the evidence of witnesses who have spoken about such propoganda must be accepted. On the question as to whether the Prime Minister exercise any undue influence over Sri Nijalingappa, Sri S. K. Patil, Sri Kamaraj, Sri Morari Desai -and Sri Y. B. Chavan by threat of serious companysequences following their resolution to numberinate Sri Sanjeeva Reddy as the Congress candidate, it is undeniable that she was number a little vexed with the attitude of those persons in setting up as candidate Sri Sanjeeva Reddy when she herself had put forward the name of Sri Sri Jagjiwan Ram. Both Sri Morarji Desai and Sri Nijalingappa came to the witness box and deposed about the Prime Minister having used the words serious companysequences would follow. In one of the letters to the Prime Minister Sri Nijalingappa had mentioned this to which there was numberreply. As the Prime Minister did number companye to the witness box to give a denial to this the statements of Sri Morarji Desai and Sri Nijalingappa must be accepted. But the question still remains whether there was a threat to anybodys electoral right at that time so as to amount to the companymission of undue influence. Electoral right is defined in s. 171-A b as the right of a person to stand or number to stand as, or to withdraw from being, a candidate or to vote or refrain from voting at an election. The pleading does number make out a case of threat to Sri Nijalingappa and others to refrain from voting at the election but it is limited to a threat to make them change their decision to numberinate Sri Sanjeeva Reddy as the Congress candidate. There is numberplea of threat to Sri Sanjeeva Reddy to withdraw from being a candidate. as the threat pleaded being one to companyrce Sri Nijalingappa and others to change their decision to numberinate does number affect their electoral right. There was numberevidence of any subsequent threat by the Prime Minister -and as she herself was responsible for filing the numberination paper of Sri Sanjeeva Reddy there companyld be numberquestion of her holding out a threat to Sri Nijalingappa, and others to make them change their decision to numberinate a candidate. There was numberevidence of any undue influence having been companymitted as alleged in paragraph 13 c v of the petition. No member of the legislative assembly of West Bengal or Andhra Pradesh came to give evidence to the effect that the respondent or his supporters had raised a scare that Sri Sanjeeva Reddy, if successful in the Presidential election, would enforce Presidents Rule in those States. In my view the plea that a scare was created by the workers and supporters of the respondent to the extent that Sri Kamlapati Tripathy, the President of the U.P. Congress Committee pleaded for freedom of vote on the 13th August 1969 companypletely departing from his earlier attitude that the members of the electoral companylege belonging to the Congress fold should back Sri Sanjeeva Reddy solidly can be dismissed suMMarily. Sri Kamlapati Tripathy R.W. 61 gave a companyent explanation for his change of attitude just before the poll and according to him he pleaded for freedom of vote in order to avoid a split in the party which was fairly evident at that time. The evidence adduced by the petitioners does number establish that the change of attitude was due to any scare by the workers and supporters of the respondent as alleged. The rift in the party became a matter of public knowledge in the first week of August and the process of the members of the Congress party arraying themselves in hostile camps went on practically till the eve of the election. There was numberevidence of any scare being caused by the companymission of any undue influence. Inasmuch as I have companye to the companyclusion that the evidence adduced does number establish the exercise of undue influence in the election in any of the forms raised in, the petition, the question of the result of the election being materially affected thereby does number arise. But I may point out that in order to substantiate such a -round for setting aside an election it is number enough for witnesses to companye and say that they were shocked or pained by reading the pamphlet as most of them gave out. Only two witnesses came to the witness box and said that they had changed their minds to vote for Sri Sanjeeva Reddy after perusal of the pamphlet. Mr. Daphtary argued that there was numberhing in the Act of 1952 which forbade a person from disclosing in his evidence which way he had voted and that it was open to witnesses to companye and state the reaction of the pamphlet on their minds and express how it had affected their companyduct at the poll. While I do number think it necessary to express any opinion on this it can be safely held that even if the exercises of undue influence had been proved the evidence of only two witnesses to show that their electoral right had been interfered with thereby would number have been enough for the purpose of setting aside the election. My companyclusion therefore on the issues regarding undue influence may be summed up as follows. There was a fair amount of circulation of the pamphlet, in the Central hall of Parliament among members of the electoral companylege by a number of them. Undeniably there was companysiderable publication of it by post both to electors in Delhi and outside. The mere dissemination of the pamphlet did number amount to exercise of any undue influence or interference with any electoral right. It had to be followed up either by a personal verbal appeal or an appeal in writing but there was numberevidence thereof in this case. There was numberappeal to Muslim members on grounds of religion to vote in favour of the respondent in preference to Sri Sanjeeva Reddy. There was numberevidence of exercise of undue influence by Central Ministers over any members of the electoral companylege by any threat that in case they failed to vote for the respondent they would lose the patronage of the Prime, Minister. The offence of undue influence was number companymitted by the respondent or any of his workers. The respondent himself was number guilty of any such companymission. There was numbercommission of the offence of undue influence by anybody with the companynivance of the respondent and the result of the election was number materially affected as a result of any companymission of the offence of undue influence. As regards issue 4 a in Election Petitions 4 and 5 of 1969 my view is that some of the allegations made in paragraphs 8 3 and 13 of the petition would be sufficient pleading of companymission of undue influence under s. 1 8 1 a of the Presidential and Vice-Presidential Elections Act, 1952. As regards issue 4 b the, only allegation which was substantiated was a fair amount of publication and dissemination of this scurrilous pamphlet which by itself did number amount to the exercise of undue influence. Sri Abdul Ghani Dars evidence on this point is wholly unacceptable. My answer to issue 4 c in all its branches is in the negative. We indicated on the 11th May 1970 that we would number award any companyts to either side. As the respondent has succeeded in the petition numbermally he companyld expect to get an award of companyts in his favour. But one cannot overlook the fact that the bulk of the oral evidence in this case centered round the question as to whether there was publication of the scurrilous pamphlet in the Central hall of Parliament. A very large number of petitioners witnesses came to give evidence in support of it while the respondent examined a host of witnesses to disprove this fact. Although in the view I have taken it was number necessary to name the persons who were guilty of such publication I have already indicated that quite a number of members of Parliament was responsible for it. The hearing of this case was protracted unreasonably by the examination of witnesses on this one question and as the respondent has number succeeded in disproving dissemination of the pamphlet in the Central hall it companyld number be right to make an award of companyts in his favour. The litigation was number one of an ordinary type and it was companyducted with great zeal on either side. It has divulged a sad lack of responsibility and uprightness in the elected representatives of the people figuring either as witnesses for the petitioners or as witnesses or the respondent.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 874 of 1975. Appeal by Special Leave from the Judgment and Order dated 5-3-75 of the Rajasthan High Court in D.B. Civil Appeal No. 18 of 1975. C. Bhandare, S.M. Jain, S.K. Jain and Mohd. Fasiuddin, for the Appellant. C. Bhartari, for Respondent No. 3. J. John, for Respondent No. 4. The Judgment of the Court was delivered by GOSWAMI, J.--The appellant and the respondents 3 and 4 were the former existing stage-carriage operators of Jaipur-Sainthal route which was nationalised on January 25, 1973. All of them applied for the grant of number-temporary stage carriage permits of Jaipur-Padampura route as alternative route permits. The Regional Transport Authority, Jaipur briefly the RTA by its order of July 22, 1974, granted numbertemporary permits to the appellant and respondent No. 4 and rejected the application of respondent No. 3. That led to an appeal to the State Transport AppeLlate Tribunal at Jaipur, Rajasthan, by respondent No. 3. The numberice of appeal was served upon the appellant but since he did number appear the appeal was heard ex-parte and by its order dated December 17, 1974, the State Transport Appellate Tribunal set aside the order of the RTA and granted the permit in favour of respondent No. 3. The appellant filed a writ application under Article 226 of the Constitution before the Rajasthan High Court and the learned single Judge by a rather long speaking order dismissed the same summarily. A further appeal by the appellant to the Division Bench met with the same fate. The High Court also refused to grant certificate to appeal to this Court. Hence this appeal by special leave. Mr. Bhandare, the learned companynsel on behalf of the appellant, submits that the order of the State Transport Appellate Tribunal briefly the Tribunal is invalid inasmuch as the appeal was heard in the absence of a proper numberice of appeal as required under the law. He draws our attention to rule 108 c of the Rajasthan Motor Vehicles Rules. 1951, which reads as follows --- Upon receipt of an appeal preferred in accordance with sub-rule b the Appellate Tribunal may appoint a date, time and place for hearing of the Appeal, giving the State Transport Authority, or the Regional Transport Authority, as the case may be, and the appellant. number less than thirty days numberice thereof. Although the above rule does number companytain any provision for service of numberice on the respondent, it is, however, implicit that a numberice similar to one intended under the rule for service on the appellant must also be served on the respondent. Mr. Bhandare companyld number dispute the factual service of numberice on the appellant in view of the Tribunals finding. He however, submits that the numberice which was served on the appellant did number recite the place for the hearing of the appeal although the date and time were numbered therein. It is true that the Tribunal companyld number, in law, hear the appeal without intimating the respondent. about the date, time and place for hearing of the appeal but since the appellant had received the numberice from the Tribunal indicating the date and time for hearing of the appeal, the omission in the numberice to describe the place where the appeal is to be heard is number fatal enough to make the appeal proceeding invalid before the Tribunal. The appellant, admittedly, is a resident of Jaipur where also the office of the Tribunal is situated. He was also a stage carriage permit-holder and number a stranger to the office of the Transport Authorities. Besides, although the numberice of the appeal fixed the date of hearing on October 8, 1974, the appeal was adjourned on that day to October 21, 1974 and again to November 12, 1974 and it was only on December 12, 1974 that the final hearing of the appeal took place. It is, therefore, clear that the appellant was duly numberified about the hearing of the appeal and in view of the fact that he did number make any effort to be present during this entire period, when the appeal was pending, he companyld number be allowed to take advantage of the mere omission of the place of hearing of the appeal in the numberice. Besides, the RTA was present as provided for under section 64 1 of the Motor Vehicles Act, 1939 briefly the Act before the Tribunal to defend its own order. The submission of the appellant is, therefore, of numberavail. Mr. Bhandare next submits that the Tribunal failed to companyply with section 47 of the Act and did number at all companysider the relevant matters a to f provided therein. It is well settled that in companysidering an application for a stage carriage permit the RTA shall have regard to the matters described in section 47. Before we go to companysider about the submission of the learned companynsel with reference to the order of the Tribunal it is manifest, on the face of the order of the RTA, that Authority, even at the first instance, did number make any reference to the relevant companysiderations under section 47 of the Act. The only reason given by the RTA in rejecting the application of respondent No. 3 is that there is numberother vacancy. There is numberhing to show that the case of respondent No. 3 was at all companysidered by the RTA on merits. The Tribunal, on the other hand, has companysidered various aspects of the matter although without a reference to section 47 as such. For example, the companydition of the vehicles of the two parties was duly companysidered by the Tribunal. The fact that the respondent 3 had a later model of vehicle being 1965 model whereas the appellant had only a 1962 model vehicle tilted the balance in favour of the respondent No. 3. This aspect can well arise under clauses a and b of section 47. We are unable to say that the relevant companysiderations under section 47, on the facts and circumstances of the grant of the particular permit, were number kept in view by the Tribunal in companysidering the appeal. The Tribunal and the learned single Judge duly companysidered the whole matter and the Division Bench was justified in summarily rejecting the special appeal. The second submission of the learned companynsel also fails. In the result the appeal is dismissed but we will make numberorder as to companyts.

HARJIT SINGH BEDI,J. The facts leading to this appeal are as under In October 1987, a meeting was companyvened by the Managing Director of the appellant with representatives of various Insurance Companies in Shimla with a proposal to insure the timber lying in several forest areas of the State. A proposal was also made to the National Insurance Company on 26th October 1987 to act as a lead companypany while the other Insurance Companies were to be companysharers. After negotiations, the respondent agreed on the 30th October 1987 to insure the timber lying in the South Zone in the value of Rs.3.42 Crores and also issued a companyer numbere dated 7th November 1987 followed subsequently by a policy dated 16th November 1987 to be valid from 6th November 1987 to 5th November 1988. The appellant also deposited a sum of Rs.2,43,504 as the tentative premium subject to the approval by the Tariff Advisory Commission. It appears that on account of heavy rains in the Shimla region in September 1988 and companysequent large scale flooding in the South Zone, the insured timber was washed away. This fact was companyveyed to the respondent by several letters between 3rd October 1988 and 31st September 1989. The case of the appellant is that instead of meeting its companytractual obligations, the respondent refuted its liability to pay on the 13th October 1988 on the pretext that the policy had, in fact, been issued for a period of 8 months only starting from 6th November 1987 and ending on 5th July 1988 and the period of one year mentioned in the policy was on account of a typographical mistake. It also appears that after prolonged negotiations, some additional premium was paid with respect to the aforesaid policy. It is the grievance of the appellant that despite having accepted the additional premium even after the policy had been repudiated on 13th October 1988, the respondentcompanypany still refused to make good the loss. The appellant accordingly issued a legal numberice dated 7th May 1992 followed by another dated 7th December 1992 but to numberavail, and on the companytrary, the respondent vide its companymunication dated 24th December 1992 yet again repudiated the appellant claim. Faced with this situation, the appellant through its Advocate, issued a numberice dated 18th April 1993 to the respondent under clause 13 of the Insurance Policy calling for the appointment of an arbitrator. In its reply dated 19th May 1993, the Insurance Company refused to accept this proposal as well. Frustrated thereby, the appellant filed a companyplaint before the National Consumer Redressal Forum hereinafter called the Commission on 18th April 1994 on which numberice was issued to the respondent. Several objections such as the companyplaint being belated as the claim had been repudiated by letter dated 13th October 1988, and that the insurance companyered only a period of 8 months, were taken by the respondent. A rejoinder affidavit was thereafter filed by the appellant companytroverting the pleas raised by the respondent. The Commission, however, after prolonged hearing by its order dated 15th February 1996 relegated the appellants to the remedy of a civil companyrt. This order was challenged and was set aside by this Court on 13th March 1997 and a direction was issued to the Commission to examine the companyplaint on merits. The Commission accordingly went in to the matter and dismissed the companyplaint on 16th August 2000 holding that the issues were companyered against the appellant by the judgment of this Court in National Insurance Co.Ltd. vs. Sujir Ganesh Nayak Co. Anr. 1997 4 SCC 366 in which it had been held that the companyplaint companyld number be entertained as it was time barred having been brought before the Commission after the expiry of the period fixed by Clause 6 ii of the Insurance Policy. It is against this order that the present appeal has been filed. Mr. Sharma, the learned companynsel for the appellant has submitted that Section 44 of the Limitation Act provided a period of limitation of 3 years from the date of disclaimer and as such the period of 12 months fixed by clause 6 ii companyld number be sustained by virtue of the provisions of section 28 of the Contract Act, 1872. In this companynection, he has pointed out that this matter was companycluded against the respondent by the judgment in Food Corporation of India vs. New India Assurance Co.Ltd. Ors. 1994 3 SCC 324 which had been reaffirmed in Muni Lal vs. Oriental Fire General Insurance Co.Ltd. Anr. 1996 1 SCC 90 and that Sujir Ganesh Nayak case supra which was based on the pre amended Section 28 ibid was, therefore, inapplicable. Mr. Nandwani, the learned companynsel for the respondent has, however, submitted that the claim had, in fact, been repudiated on 13th October 1988 and as the 3 years period was deemed to have companymenced from that day, the companyplaint was barred even on the appellants best case as the companyplaint had been filed in April 1994. He has, further, argued that as far back as in the judgment in Vulcan Insurance Co.Ltd. vs. Maharaj Singh Anr. 1976 1 SCC 943 and followed subsequently in several judgments and even in those referred to above , it had been held that a clause in an Insurance Policy fixing a period of limitation extinguishing the right to file a suit or companyplaint within a certain stipulated period which companyld be less than that prescribed by the Limitation Act, was number violative of Section 28 of the Contract Act and as such the findings of the Commission were perfectly in accordance with the law for this additional reason as well. We have companysidered the arguments advanced by the learned companynsel for the parties. It is clear from the record that the timber had been washed away some time in September 1988 and after prolonged companyrespondence, the respondent ultimately vide its companymunication dated 13th October 1988 repudiated the appellants claim. It is also clear from the companynter affidavit filed by the respondent that the appellant had, vide its letter dated 7th November 1987, asked for insurance companyer for a period of 8 months and that the period of one year fixed in the insurance policy was evidently a typographical mistake which had, in any case, been rectified in the records of the companypany on 17th December 1987, that is long before the flood. The claim of the appellant that the respondent companypany had, even after the 13th October 1988, impliedly admitted its liability under the policy also appears to be incorrect as the surveyors had been appointed on the persistent demand of the claimant appellant and the premium taken thereafter was only to make good the deficiency in the premium that had been paid for the policy for the period of eight months. It is, therefore, apparent that as on the date of the flood, there was numberinsurance policy in existence or any companymitment on behalf of the respondent to make the payment under the policy. We, therefore, endorse the argument raised by the respondent that even accepting the case of the appellant at its very best that the period of limitation would be 3 years under Section 44 of the Limitation Act, the companyplaint would, even then, be beyond time, having been filed in April 1994. In view of the above observations, we find that the second issue with regard to the implications of clause 6 of the policy vis--vis Section 28 is really academic, but as the learned companynsel for the parties have addressed us on this score, we have chosen to deal with it as well. We see from the order of the Commission that it has relied upon Sujir Ganesh Nayaks case supra to hold that the companyplaint companyld number be entertained as being time barred. The companynsel for the appellant had, however, argued before the Commission as before us, that as Section 28 of the Contract Act had undergone significant amendments, the aforesaid judgment required a reappraisal. This submission had been rejected by the Commission by observing that it was bound by the judgment in Sujir Ganesh Nayaks case and that the appellant companyld agitate the question as to its companyrectness before the Supreme Court. The matter was, accordingly, adjourned by us to enable the parties to find out if the amendment had, indeed, been made and, if so, to what effect. During the resumed hearing, the learned companynsel for the appellant candidly admitted that the amendment had been made but had thereafter been repealed and the matter would, thus, have to be examined under Section 28 of the Contract Act, as originally placed. We have, accordingly, chosen to deal with this matter under that provision. 7. It would be clear from the above prefatory numbere that the discussion would involve an appreciation of Clause 6 ii of the Policy and Section 28 of the Contract Act. Both these clauses are reproduced below 6 ii In numbercase whatsoever shall the companypany be liable for any loss or damage after the expiration of 12 months from the happening of the loss or damage unless the claim is the subject of pending action or arbitration it being expressly agreed and declared that if the companypany shall declaim liability for any claim hereunder and such claim shall number within 12 calendar months from the date of the disclaimer have been made the subject matter of a suit in a companyrt of law then the claim shall for all purposes be deemed to have been abandoned and shall number thereafter be recoverable hereunder. Section 28 Agreements in restrain of legal proceedings void- Every agreement, by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any companytract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, is void to that extent. Savings of companytract to refer to arbitration dispute that may arise Exception 1 - This section shall number render illegal a companytract, by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of subjects shall be referred to arbitration and that only the amount awarded in such arbitration shall be recoverable in respect of the dispute so referred. Savings of companytract to refer questions that have already arisen. Exception 2 - Nor shall this section render illegal any companytract in writing, by which two or more persons agree to refer to arbitration any question between them which has already arisen, or affect any provision of any law in force for the time being as to references to arbitration. In Sujir Nayaks case supra to which primary reference has been made by the learned companynsel for the parties while dealing with an identical situation where a companytract companytained a provision prescribing a period of limitation shorter than that prescribed by the Limitation Act, it was held that the companytractual provision was number hit by Section 28 as the right itself had been extinguished. Mr. Sharma has, however, submitted that in view of the observations in some paragraphs in Food Corporation of Indias case, the observations in Sujir Nayaks case were liable to reconsideration. We, however, find numbermerit in this plea for the reason that in Sujir Nayaks case, Food Corporation of Indias case supra has been specifically companysidered and Vulcan Insurance Companys case supra too had been relied upon. In Sujir Nayaks case, this Court was called upon to companysider companydition 19 of the policy which was in the following terms Condition 19. - In numbercase whatever shall the companypany be liable for any loss or damage after the expiration of 12 months from the happening of loss or the damage unless the claim is the subject of pending action or arbitration. While companystruing this provision vis--vis Section 28 of the Contract Act and the cases cited above and several other cases, in addition, this is what the Court ultimately companycluded From the case-law referred to above the legal position that emerges is that an agreement which in effect seeks to curtail the period of limitation and prescribes a shorter period than that prescribed by law would be void as offending Section 28 of the Contract Act. That is because such an agreement would seek to restrict the party from enforcing his right in Court after the period prescribed under the agreement expires even though the period prescribed by law for the enforcement of his right has yet number expired. But there companyld be agreements which do number seek to curtail the time for enforcement of the right but which provide for the forfeiture or waiver of the right itself if numberaction is companymenced within the period stipulated by the agreement. Such a clause in the agreement would number fall within the mischief of Section 28 of the Contract Act. To put it differently, curtailment of the period of limitation is number permissible in view of Section 28 but extinction of the right itself unless exercised within a specified time is permissible and can be enforced. If the policy of insurance provides that if a claim is made and rejected and numberaction is companymenced within the time stated in the policy, the benefits flowing from the policy shall stand extinguished and any subsequent action would be time-barred. Such a clause would fall outside the scope of Section 28 of the Contract Act. This, in brief, seems to be the settled legal position. We may number apply it to the facts of this case. The clause before this Court in Food Corpn. case extracted hereinbefore can instantly be companypared with the clause in the present case. The companytract in that case said that the right shall stand extinguished after six months from the termination of the companytract. The clause was found valid because it did number proceed to say that to keep the right alive the suit was also required to be filed within six months. Accordingly, it was interpreted to mean that the right was required to be asserted during that period by making a claim to the Insurance Company. It was therefore held that the clause extinguished the right itself and was therefore number hit by Section 28 of the Contract Act. Such clauses are generally found in insurance companytracts for the reason that undue delay in preferring a claim may open up possibilities of false claims which may be difficult of verification with reasonable exactitude since memories may have faded by then and even ground situation may have changed. Lapse of time in such cases may prove to be quite companytly to the insurer and therefore it would number be surprising that the insurer would insist that if the claim is number made within a stipulated period, the right itself would stand extinguished. Such a clause would number be hit by Section 28 of the Contract Act. Clause 19 in terms said that in numbercase would the insurer be liable for any loss or damage after the expiration of twelve months from the happening of loss or damage unless the claim is subject of any pending action or arbitration. Here the claim was number subject to any action or arbitration proceedings. The clause says that if the claim is number pressed within twelve months from the happening of any loss or damage, the Insurance Company shall cease to be liable. There is numberdispute that numberclaim was made number was any arbitration proceeding pending during the said period of twelve months. The clause therefore has the effect of extinguishing the right itself and companysequently the liability also. Notice the facts of the present case. The Insurance Company was informed about the strike by the letter of 28-4-1977 and by letter dated 10-5-1977. The insured was informed that under the policy it had numberliability. This was reiterated by letter dated 22-9- 1977. Even so more than twelve months thereafter on 25-10-1978 the numberice of demand was issued and the suit was filed on 2-6-1980. It is precisely to avoid such delays and to discourage such belated claims that such insurance policies companytain a clause like clause 19. That is for the reason that if the claims are preferred with promptitude they can be easily verified and settled but if it is the other way round, we do number think it would be possible for the insurer to verify the same since evidence may number be fully and companypletely available and memories may have faded. The forfeiture clause 12 also provides that if the claim is made but rejected, an action or suit must be companymenced within three months after such rejection failing which all benefits under the policy would stand forfeited. So, looked at from any point of view, the suit appears to be filed after the right stood extinguished. That is the reason why in Vulcan Insurance case while interpreting a clause companyched in similar terms this Court said SCC p. 952, para 23 It has been repeatedly held that such a clause is number hit by Section 28 of the Contract Act.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 153 of 1954. Appeal by special leave from the judgment and order dated January 15, 1952, of the Bombay High Court in Income-Tax Application No. 54 of 1951. J. Kolah, J. B. Dadachanji, S. N. Andley and Rameshwar Nath, for the appellant. K. Daphtary, Solicitor-General of India, G. N. Joshi and R. H. Dhebar, for the respondent. 1957. May 22. The Judgment of the Court was delivered by KAPUR J.-This is an appeal by the assessee by special leave and the question for decision is whether questions of law, if any, arise out of the order of the Appellate Tribunal. The facts giving rise to the appeal are that the petitioner companypany was incorporated on July 29,1924, as an investment companypany, the objects of which are set out in el. III of the memorandum of association and more particularly in sub-cls. 1, 2, 15 and 16 of that clause. The assessment years under review. are 1943-44 to 1948-49, excepting the year 1947-48. According to its petition made in the High Court of Bombay, the petitioner companypany dealt with its assets as follows The Petitioner Company purchased during the period 1st July 1925 to 30th June 1928 shares of the value of Rs. 1,86,47,789/- major portion of which was companyprised of shares in the Sassoon Group of Mills. During the year ended 30th June 1929 the Petitioner Company promoted two companypanies known as Loyal Mills Ltd. and Hamilton Studios Ltd. and took over all their shares of the value of Rs. 10 1/2 lacs. In the year 1930, the Petitioner Company purchased shares of Rs. 1,33,930. During the period of 9 years from 1st July 1930 to 30th July 1939 numberpurchases were made with the exception of a few shares of Loyal Mills Ltd., taken over from the staff of E. D. Sassoon Co. Ltd., who retired from service. In the year ended 30th June 1940 reconstruction scheme of the Appollo Mills Ltd., took place under which debentures held by the Petitioner Company in the Appollo Mills Ltd., were redeemed and the proceeds were reinvested in the new issue of shares made by the Appollo Mills Ltd. Out of the purchases of the value of Rs. 2,794 made by the Petitioner Company during the year ended 30th June 1941 Rs. 2,000/- was the value of shares of the Loyal Mills Ltd., taken over from the retiring staff. In the year ended 30th June 1943 the Petitioner Company took over from the David Mills Co. Ltd., shares of The Associated Building Co., of the value of Rs. 56,700/-. After this there were numberpurchases at all to this date excepting purchases of the value of Rs. 34,954 during the year ended 30th June, 1946. The sales are companytained in para 3 b which may be quoted In relation to the purchases made by the Petitioner Company as stated above numberappreciable sales of shares were made during the period 29th July 1924 to 30th June 1942, the sales made in the year ended 30th June 1929 of the value of Rs. 1,29,333 included shares of the value of Rs. 45,000 in the Loyal Mills Ltd., sold to the members of the staff and shares of the value of Rs. 83,833 representing sterling investments handed over to the creditors of the Petitioner Company in part repayment of the loan taken from them in the year ended 30th June 1931, shares of the value of Rs. 7,48,356 were handed over to the creditors in payment of the loan granted by them. From the year ended 30th June 1943 E. Sassoon Co. Ltd., started relinquishing the managing agencies of the various Mills under their agency and the shares held by the Petitioner Company in the Sassoon Group of Mills were handed over to the respective purchasers of the Mills agencies. This gives the history of the acquisition and disposal of shares and also how the various transactions were entered into and why. Prior to 1940 the assessee companypany made a claim every year for being treated as a dealer in investments and properties but this companytention was companysistently repelled and upto the assessment year 1939- 40 the assessee companypany was assessed on the basis of being an investor but it appears that for the assessment year 1940-41 and the two following years 1941-42 and 1942-43 the Department accepting the plea of the assessee companypany treated it as a dealer in shares, securities and immovable properties and assessed it on that basis. For these years and for the assessment year 1943-44 the companypany made its Return on that basis. But after the Return had been filed for the year 1943-44 the assessee companypany withdrew its Return and filed a revised Return on March 7, 1944, companytending that it was number a dealer but merely an investor. Along with the Return it filed a letter dated March 6, 1944, in which inter alia it stated The Return of Total Income which was submitted with the Companys letter of 25th May 1943 was prepared in companyformity with the ruling of the Income. tax Officer in the 1940-41 assessment that the companypany was to be assessed as a dealer in investments. Since that Return was submitted the Central Board of Revenue has decided that the Company is an Investment Holding Company and accordingly an amended Return of Total Income under Section 22 1 of the Indian Income-tax Act is submitted herewith on which the assessment for 1943- 44 may be based, as on this particular question the companypany obviously cannot have one status for Excess Profits Tax and another for Income-tax. It was also companytended that it never carried on any business in the purchase or sale of shares, securities or properties and therefore prayed that in view of the order of the Central Board of Revenue made on its application under s. 26 1 of the Excess Profits Tax Act it should be assessed for income-tax purpose as an investor and number as a dealer. The Income-tax Officer rejected this plea and held the investments as the stock-in-trade of its business therein which it carried on during the previous year also . The companypany took an appeal to the Appellate Assistant Commissioner which was dismissed and the order of the Income-tax Officer upheld. It then appealed to the Income-tax Appellate Tribunal, Bombay, where the same companytentions were raised but were, repelled. The Tribunal said The companypany having itself raised the point in all the prior years that it was a dealer in investments and properties, it would appear to be difficult to understand why the companypany number seeks to get the position changed and desires the Income-tax Officer to treat it as if it was number dealing in shares, securities and immoveable properties. The Tribunal after holding that the companypany was under numbermisapprehension when it claimed to be a dealer in investments in the earlier years because it was then always incurring losses and that the present companytention was raised because it made substantial profits said but we have numberdoubt that, according to the companypanys memorandum of association and its own assertions made all along in the past, the assessee companypany is a dealer in investments and properties and the income arising to it on the sale thereof has been rightly held by the Income-tax Officer to be business profits liable to tax under the ordinary provisions of the Income-tax Act. Thus the grounds on which the case was decided against the assessee were 1 that the assessee claimed to be a dealer or an investor according as it incurred losses or made profits and 2 that because of the objects companytained in the memorandum of association and because of its assertion made in the past as being a dealer the assessee companyld number be held to be an investor. The companypany then applied to the Appellate Tribunal under s. 66 1 of the Indian Income-tax Act for a reference of the following questions for the opinion of the High Court Whether on the facts and in the circumstances of the case the assessee companypany can rightly be treated as a dealer in investments and properties and Whether the profits and losses arising from the sale of shares, securities and immoveable properties of the assessee companypany can be taxed as-business profits. This prayer was rejected because in the opinion -of the Tribunal numberquestion of law arose out of its order. It said The Tribunal did number decide this point merely because the companypanys memorandum of association gave power to the companypany to deal in investments and properties, but it was actually found that the companypany had dealt in investments and properties throughout and had also all along in the past asserted that it was a dealer in investments and properties. This was more than it had said in its appellate order. The assessee companypany then made an application under s. 66 2 of the Indian Income-tax Act for requiring the Appellate Tribunal to state the case and refer it to the High Court but this application was dismissed, and then the companypany obtained special leave to appeal to this Court. Counsel for the assessee companypany companytends that the questions of law arise out of the order of the Tribunal because the Tribunal has ignored the documentary evidence produced before it, has based it decision on irrelevant matters, has failed to companysider crucial facts and has misdirected itself by assuming that the petitioner was a dealer from the very beginning which was companytrary to the documents produced before it. Section 66 1 of the Income-tax Act hereinafter termed the Act provides that any assessee may require the Appellate Tribunal to refer to the High Court any question of law arising out of its appellate order and it is the statutory duty of the Appellate Tribunal to draft the statement of the case and refer the question of law arising out of such order to the High Court but the primary requirement is that there must be a question of law arising out of the order. Should the Tribunal refuse to state the case as required under s. 66 1 of the Act on the ground that numberquestion of law arises, the assessee has the right to apply to the High Court requiring the Appellate Tribunal to state a case and refer it to the High Court but again the essential companysideration is the existence of a question of law. arising out of the order. To draw a line between what is a question of law and what is a question of fact is number always easy. It is difficult to define this distinction which has given rise to a number of decisions, which it will be useful to discuss at this stage. In Stanley v. Gramophone and Typewriter, Limited 1 the Master of the Rolls discussed this question as follows It is undoubtedly true that, if the Commissioners find a fact, it is number open to this companyrt to question that finding unless there is numberevidence to support it. If, however, the Commissioners state the evidence which was before them, and add that upon such evidence they hold that certain results follow, I think it is open, and was intended by the Commissioners that it should be open, to the companyrt to say whether the evidence justified what the Commissioners held. These observations were explained by Hamilton J. in The American Thread Co. v. Joyce 2 as implying that by giving the material on which their finding was based the Commissioners were inviting the companyrt to determine whether on that material they companyld reason. ably arrive at the companyclusion on which they did arrive. The House of Lords on appeal categorically companyfirmed that the Courts had numberjurisdiction over companyclusions of fact except to see whether there was evidence to justify them and that proper legal principles had been applied. Lord Clerk in Californian Copper Syndicate v. Harris 3 has laid down the test in the following words the question to be determined being-Is the sum of gain that has been made a mere enhancement of value by realising a security, or is it a gain made in an 1 1908 5 T.C. 358, 374. 2 1911 6 T.C. 1. 3 1904 5 T.C. 159, 166. operation of business in carrying out a scheme for profitmaking. In that case the objects set out in the memorandum of association pointed distinctly to a highly speculative business and the mode of actual procedure of the companypany was also directed in the same direction. Taking into companysideration the companyrse of dealing of the shares by the companypany and also that the turning of investment to account was number merely incidental but was an essential feature of the business, speculation being among the appointed means of the companypanys business the companyrt came to the companyclusion that the companypany was carrying on a business. The Lord President in a Scottish case Cayzer, Irvine Co., Ltd. v. Commissioners of Inland Revenue 1 stated the grounds on which the companyrt can interfere with the finding of the Commissioner as follows I think we have jurisdiction to entertain the question at law, which is whether the majority of the Commissioners were warranted on -the evidence in determining as they did. At the narrowest it is always open to this Court in a Stated Case to review a finding in fact on the ground that there is numberevidence to support it. Lord Parker in Farmer v. Trustees of the Late William Cotton 2 after referring to the difficulty of distinguishing between a question of fact and a question of law observed Where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly companystrued of some statutory enactment, the question is one of law only. But this statement of the law was companysiderably modified in Inland Revenue Commissioners v. Lysaght 3 where it was held that if the issue before the companyrt companyld be described as a question of degree the companyclusion must be a question of fact. 1 1942 24 T.C. 491, 501. 2 19I5 A.C. 922,932. 3 1928 A.C. 234. The Commissioners of Inland Revenue v. The Korean Syndicate, Ltd. 1 was a case where a syndicate was registered for the purpose of acquiring and working companycessions and turning them to account, and of investing and dealing with monies number immediately required. The syndicate acquired part of a right to a companycession in Korea and then under an agreement described as a lease, in companysideration of receiving sums of money termed royalties but which were really percentages of profits made by assignee companypany, assigned the lease to a development companypany. Some moneys which were received from sale of certain shares obtained by the syndicate in exchange for shares originally acquired in the mining companypany were deposited in a bank. The activities of the companypany were during the relevant period companyfined to receiving the bank interest and royalties, distributing the amount amongst its shareholders as dividend. The question for decision was whether the syndicate was carrying on a business and was therefore liable to excess profits duty. From these facts it was companycluded that they were carrying on a business. Atkinson L.J. pointed out at p. 204 that merely because a companypany is incorporated it does number necessarily follow that it is carrying on business.- Its memorandum only shows that the companypany was incorporated for a particular purpose but taking into companysideration the surrounding circumstances and facts of the case it was companycluded that the companypany was carrying on a business. In Great Western Railway Company v. Bater 2 the question for decision was whether a clerk held a -public office to fall within Sch. E. It was held that the determination by the Commissioners of questions of pure fact are number to be disturbed unless it should appear that there was numberevidence before them upon which they, as reasonable men, companyld arrive at the companyclusion which they came to. Lord Atkinson said What I have many times in this House protested against is the attempt to secure for a finding on a mixed question of law and fact the unassailability 1 1921 12 T.C, 181. 2 1922 8 T.C. 231, 244. which belongs only to a finding on questions of pure fact. This is sought to be affected by styling the finding on a mixed question of law and fact a finding of fact. According to the dictum of Lord Wrenbury the question for the Court was whether on the facts found and stated by the Commissioners the clerk held the office within the meaning of the Act which was a question of law. In Lysaght v. The Commissioners of Inland Revenue 1 the question for decision was whether the assessee was a resident and ordinarily resident in United Kingdom in the year of assessment. Lord Buckmaster said. The distinction between questions of fact and questions of law is difficult to It is, of companyrse, true that if the circumstances found by the Commissioners in the Special Case are incapable of companystituting residence their companyclusion cannot be protected by saying that it is a companyclusion of fact since there are numbermaterials upon which that companyclusion companyld depend. But if the incidents relating to visits in this companyntry are of such a nature that they might companystitute residence, and their prolonged or repeated repetition would certainly produce that result, then the matter must be a matter of degree and the determination of whether or number the degree extends so far as to make a man resident or ordinarily resident here is for the Commissioners and it is number for the Courts to say whether they would have reached the same companyclusion. Jones v. Leeming 2 was a case where the respondent with three other -persons obtained an option to purchase a rubber estate in the Malay Peninsula. That estate along with another was sold at a profit. The Commissioners found that the respondent had acquired the property with the sole object of turning it over again at a profit and at numbertime had he the intention of holding it. This transaction was held number to be in the nature of trade number the profits arising therefrom in the nature of income but they were accretions to 1 1928 13 T.C. 511, 533, 534. 2 1930 A.C. 4I5. capital and therefore number subject to tax under Case VI of Sch. D. In Cameron v. Prendergast 1 the following test was laid down by Viscount Maugham Inferences from facts stated by the Commissioners are matters of law, and can be questioned on appeal. The same remark is true as to the companystruction of documents. If the Commissioners state the evidence it is open to the companyrt to differ from such holding. In Bomford v. Osborne 2 a farm was working as a mixed farm but as a single unit. The question for decision was whether the assessment companyld be apportioned one part being assessed as a farm and the other as a nursery. Viscount Simon laid down the test in the following words No doubt there are many cases in which Commissioners, having had proved or admitted before them a series of facts, may deduce therefrom further companyclusions which are themselves companyclusions of pure fact. In such cases, however, the determination in point of law is that the facts proved or admitted provide evidence to support the Commissioners companyclusions. It was also held that this question was a mixed question of law and fact. Du Parcq J. in J. H. Bean v. Doncaster Amalgamated Collieries Ltd. 3 held the following to be the test for determining whether the question is one of fact or law Unless the Commissioners, having found the relevant facts and put to themselves the proper question, have proceeded to give the right answer, they may be said, on this view, to have erred in point of law. If an inference from facts does number logically accord with and follow from them, then one must say that there is numberevidence to support it. To companye to a companyclusion which there is numberevidence to support is to make an error in law. 1 1940 2 All E.R. 35, 40. 3 1944 2 All E.R. 279, 284. 2 1941 2 All E.R. 426, 430. In Edward v. Bairstow 1 the respondent embarked upon a joint venture to purchase a spinning plant with the object of holding it for quick resale and at a profit. The General Commissioners found that there was numberventure in the nature of trade but the companyrt held that the facts found led inevitably to the companyclusion that the transaction was a venture in the nature of trade and that the Commissioners inference to the companytrary was erroneous. Lord Simonds observed at p. 54 that To say that a transaction is, or is number, an adventure in the nature of trade is to say that it has, or has number, the characteristics which distinguish such an adventure. But it is a question of law, number of fact, what are those characteristics At p. 55 Lord Radcliffe pointed out I think that it is a question of law what meaning is to be given to the words of the Income Tax Act trade, manufacture, adventure or companycern in the nature of trade and for that matter what companystitutes profits or gains arising from it. Here we have a statutory phrase involving a charge of tax, and it is for the companyrts to interpret its meaning, having regard to the companytext in which it occurs, and to the principles which they bring to bear on the meaning of income. and then at p. 57 laid down the test in the following words When the case companyes before the companyrt, it is its duty to examine the determination having regard to its knowledge of the relevant law. If the case companytains anything ex facie which is bad law and which bears on the determination, it is, obviously, erroneous in point of law. But, without any such misconception appearing ex facie, it may be that the facts found are such that numberperson acting judicially and properly instructed as to the relevant law companyld have companye to the determination under appeal. The dicta of Warrington L.J. in Cooper v. Stubbs 2 that intervention by a companyrt is proper only 1 1955 3 All E.R. 48. 2 1925 2 K.B. 753, 768, 772. missioners have companye to their companyclusion without evidence which should support it, that is to say, have companye to a companyclusion which on the evidence numberreasonable person companyld arrive at, or have misdirected themselves in point of law. and of Atkin L.J. that to one companyclusion of law were quoted with approval by Lord Radcliffe at pp. 56 and 57. A review of these authorities shows that though the English decisions began with a broad definition of what are questions of law, ultimately the House of Lords decided that a matter of degree is a question of fact and it has also been decided that a finding by the Commissioners of a fact under a misapprehension of law or want of evidence to support a finding are both questions of law. The Privy Council in Commissioner of Income-tax v. Laxminarain Badridas 1 said No question of law was involved number is it possible to turn a mere question of fact into a question of law by asking whether as a matter of law the officer came to a companyrect companyclusion upon a matter of fact. Bose J. in Seth Suwallal Chhogalal v. Commissioner of Income-tax 2 stated the test as follows A fact is a fact irrespective of the evidence by which it is proved. The only time a question of law can arise in such a case is when it is alleged that there is numbermaterial on which the companyclusion can be based or numbersufficient material. Sufficiency of evidence was explained to mean whether the Income-tax authority companysidered its existence so probable that a prudent man ought under the circumstances of the case to act upon the supposition that it exists. The question for decision in Dhirajlal Girdharilal v. Commissioner of Income-tax, Bombay 3 was whether a Hindu undivided family was carrying on business in 1 1937 5 I.T.R. I70, 179. 3 1954 26 I.T.R. 736. 2 1949 17 I.T.R. 269, 277. shares and it was held that this was a question of fact but if the Appellate Tribunal decided the question by taking into companysideration materials which are irrelevant to the enquiry or partly relevant and partly irrelevant or based its decision partly on companyjectures then in such a situation an issue of law arises, which would be subject to review by the companyrt and the finding given by the Tribunal would be vitiated. The result of the authorities is that inference from facts would be a question of fact or of law according as the point for determination is one of pure fact or a mixed question of law and fact and that a finding of fact without evidence to support it or if based on relevant and irrelevant matters is number unassailable. The limits of the boundary dividing questions of fact and questions of law were laid down by this companyrt in Meenakshi Mills, Madurai v. Commissioner of Income-tax, Madras 1 where the question for decision was whether certain profits made and shown in the name of certain intermediaries were in fact profits actually earned by the assessee or the intermediaries. Taking the companyrse of dealings and the extent of the transaction and the position of the intermediaries and all the evidence into companysideration the Tribunal came to the companyclusion that the intermediaries were dummies brought into existence by the appellant for companycealing the true amount of profits and that the sales in their name were sham and fictitious and profits were actually earned by the assessee. The test laid down by this Court is to be found in the various passages in that judgment. At p. 701 Venkatarama Ayyar J. pointed out that questions of fact are number open to review by the companyrt unless they are unsupported by any evidence or are perverse. At p. 706 it was observed In between the domains occupied respectively by questions of fact and of law, there is a large area in which both these questions run into each other, forming so to say, enclaves within each other. The questions that arise for determination in that area are known as mixed questions of law and fact. These questions involve first the ascertainment of facts on the evidence adduced and then a determination of the 1 1956 S.C.R. 691. rights of the parties on an application of the appropriate principles of law to the facts ascertained. The law was thus summed up at p. 720 When the point for determination is a pure question of law such as companystruction of a statute or document of title, the decision of the Tribunal is open to reference to the companyrt under s. 66 1 . When the point for determination is a mixed question of law and fact, while the finding of the Tribunal on the facts found is final its decision as to the legal effect of that finding is a question of law which can be reviewed by the companyrt. A finding on a question of fact is open to attack under s. 66 1 as erroneous in law if there is numberevidence to support it or if it is perverse. When the finding is one of fact, the fact that it is itself an inference from other basic facts will number alter its character as one of fact. In the instant case the Appellate Tribunal in its appellate order has set out the amount of profits made by the assessee companypany in the years of assessment 1943-44 to 1948-49. It has also mentioned the inconsistent positions taken up by the assessee in first claiming to be a dealer and then to be an investor which according to the Tribunal was due to the fact that it was incurring losses in the earlier years and had begun making profits when the claim of being an investor was put forward. But the two basic facts on which the Tribunal has based its findings are 1 the objects set out in the memorandum of association of the assessee companypany 2 the previous assertion by the assessee companypany that it was a dealer in investments and number merely an investor. Counsel for the assessee relies on the decision of Kishan Prasad Co., Ltd. v. Commissioner of Incometax, Punjab 1 where this Court held that the circumstance whether a transaction is or is number within the powers of the companypany has numberbearing on the nature of the transaction or on the question whether the profits arising therefrom are capital or revenue income and, therefore, it is companytended that the Tribunal has 1 1955 27 I.T.R. 49. relied upon an irrelevant circumstance. Counsel for Revenue on the other hand refer to the judgment in Lakshminarayan Ram Gopal v. Government of Hyderabad 1 where the objects of an incorporated companypany were held number to be companyclusive but relevant for the purpose of determining the nature and scope of its activities. Merely because the companypany has within its objects the dealing in investment in shares does number give to it the characteristics of a dealer in shares. But if other circumstances are proved it may be a relevant companysideration for the purpose of determining the nature of activities of an assessee. Whether in the instant case it will have any relevance because of other materials on which the assessee companypany was relying in support of its case that it was merely an investor and number a dealer will have to be companysidered when the suggested questions of law are answered. As to what are the characteristics of the business of dealing in shares or that of an investor is a mixed question of fact and law. What is the legal effect of the facts found by the Tribunal and whether as a result the assessee can be termed a dealer or an investor is itself a question of law.

This appeal, pursuant to the Special Leave granted, is filed by the wife of the deceased against the order of acquittal passed by the High Court. The respondent was tried for the offence punishable under Section 302, I.P.C. on the ground that he companymitted the murder of the husband of the appellant. The prosecution examined one eye-witness and tendered two other eye-witnesses for cross-examination. The incident is said to have taken place on the intervening night of 24th and 25th December, 1978, in a club. The record shows that the appellant was indulging in drinking and was aggressive and there was some scuffle. The trial companyrt, however, rejected the plea of the accused that he acted in the right of self-defence holding that the injury found on him was inflicted after occurrence of the incident and that the plea was a belated one and that the version of the defence witness is number worth. The trial companyrt accordingly companyvicted the accused under Section 302, I.P.C. and sentenced him to undergo life imprisonment. He preferred an appeal. The High Court after examining the nature of the injury, disagreed with the findings of the trial Court. The High Court held that there was a grappling and the accused sustained injuries during that struggle and to save himself he caused only one injury on the neck of the deceased, which unfortunately cut the carotid artery and resulted in profuse bleeding. The High Court also held that the very fact that the accused inflicted only one injury when he was apprehending serious danger to his person and that as his case being companyered by the exceptions, was entitled to the right of self defence. The learned Counsel appearing for the appellant, namely, the wife of the deceased, who had number even witnessed, however, submitted that the scope of the appeal under Article 136 is very wide and that this Court can examine the evidence and can also companysider whether the High Court was right in reversing the findings of the trial Court. As stated above the only question that falls for companysideration before the companyrts below was whether the accused was entitled for the right of self-defence. In appreciating this plea the High Court also took into companysideration the fact that there was a grapple and that during that struggle the accused received injuries at the hands of the deceased with a blunt weapon and apprehending danger to his life, inflicted one injury on the neck of the deceased. The High Court also observed that the accused did number intend to cause that particular injury, which unfortunately was on the neck causing the cut of carotid artery.

P. JEEVAN REDDY,J. Leave granted. The respondent was an officer in Scale-I in the service of the Central Bank of India. While he was working as the Branch Manager, Paradeep Branch, he was suspended pending enquiry on November 21, 1988. On January 16, 1989, ten charges were companymunicated to him. He denied all of them. An Enquiry Officer was appointed who reported, after holding a due enquiry, that Charges Nos.1, 6, 8 and 9 were established fully while Charges Nos.2,3,5,7 and 10 were established partially. Charge No.4 was held number established. On the basis of the said report, the appropriate authority dismissed the respondent from service. The appeal preferred by the respondent was dismissed whereupon he approached the Orissa High Court by way of a writ petition. The High Court has allowed the writ petition holding that the charges held established against the respondent represent errors of judgment but number misconduct. The High Court opined that though the respondent was guilty of doing many acts beyond his authority, it was number established that it was done with any ulterior motive or for any extraneous companysideration. Since the Enquiry Officer has number found that the Bank has actually incurred any loss on account of the said acts of the respondent, the High Court held, the charge of misconduct is number established. Accordingly, the writ petition was allowed, the order of punishment imposed upon the respondent was set aside and the respondent was directed to be reinstated in service with all companysequential benefits. The charges framed against the respondent are the following The Petitioner took charge of the Branch from 29.9.86. At the time of taking over charges there were number of overdrafts accounts. Instead of taking care for adjustment of such advances by companystant follow up, he companytinued to extend the facility unauthorisedly and without any delegated powers even exceeding the outstanding balance as on 29.9.86 as a result banks interest is likely to be jeopardized. The petitioner allowed clean overdrafts to several parties without any delegated authority and much beyond his discretionary powers, violating Central Office guidelines as a result he has exposed the bank to severe financial risk. The petitioner allowed drawings in cash credit a cs much beyond the sanctioned limits and or enhanced the existing limits in gross violation of his discretionary powers. As such, there is every likelihood that the banks interest may be at stake. The petitioner sanctioned number of fresh cast. credit limits to different parties much beyond his lending powers in violation of banks numberms and guidelines without proper documents and in some cases without any documents. The petitioner sanctioned a number of Term Loans directly without observing the banks rules and guidelines. The petitioner unauthorisedly issued Bank Guarantee on behalf of different parties without intimation to R.O. The guarantees were issued and signed by himself as Br.Manager though on behalf of the Bank. While acting so he had number taken companynter guarantee in some cases. While allowing unauthorisedly advances TOD other loans, the petitioner had number taken proper documents. Most of the documents taken were blank, undated, unstamped. Thus he had number safeguarded the interest of the Bank. The petitioner though made number of unauthorized irregular advances, allowed clean overdrafts, he had number submitted any Control Returns to the Regional Office inspite of letters reminders. The petitioner allowed clean overdraft in number of accounts even after Regional Offices specific instructions to stop such practices and stop allowing further overdrafts. As such willfully he violated instructions of higher authorities which was an act of insubordination. In number of borrowal accounts, the petitioner had number done proper follow up and had numbertaken due care either for renewal of documents or for obtaining balance companyfirmation. As a result, in number of borrowal a cs the documents were allowed to go time barred, putting the interest of the bank at jeopardy. Even in proper time he had number submitted the STF to Regional Office for taking legal action against such defaulters. In support of Charge No.1 as many as fifteen instances were cited. While it is number necessary to refer to all those instances, it is sufficient to mention that in all these cases it has been found that the respondent acted beyond his authority in allowing the overdrafts or in passing the cheques, as the case may be. In some cases, the Bank was benefited by the acts of the respondent while in some other cases, the companycerned amounts became sticky or irrecoverable. Charge No.2 relates to temporary overdrawals allowed by the respondent beyond his authority to different parties. A number of instances were cited and held established. The Enquiry Officer held the charge proved. He also found that in some cases the Bank stood to gain while in some other cases the companycerned advances had become sticky. Similarly, in respect of Charge No.3, number of instances were cited. It was held that in many cases the respondent allowed drawings enhanced limits in excess of the sanctioned limits in violation of his discretionary powers. Charges Nos.5,6 and 7 speak of the respondent acting beyond his authority. Charge No.8 says that inspite of reminders, the respondent failed to send Control Returns to the Regional Office. This charge was held fully established. Charge No.9 is to the effect that the respondent allowed number of accounts and clean overdrafts even after receiving the instructions of the Regional Office to stop such practice. The Enquiry Officer found that the respondent had indeed flouted the orders of the Regional Manager and companymitted an act of disobedience of lawful orders. The substance of Charge No.10 is that for want of proper follow up action, a number of borrower accounts have become time-barred and the prospects of the recovery of banks dues have become bleak. Fifteen instances were cited in support of this charge. It may be remembered that Charges Nos.1,6,8, and 9 were held to have been established in full while the remaining charges except charge No.4 were held to be established in part. It is indeed a matter of surprise that inspite of the aforesaid findings, the High Court came to the opinion that it is number a case of misconduct. Regulation 24 of the Central Bank of India Officer Employees Displine and Appeal Regulations, 1976 defines the acts of misconduct in the following words Acts of misconduct A breach of any of the provisions of these regulations shall be deemed to companystitute a misconduct punishable under the Central Bank of India Officer Employees Discipline and Appeal Regulations, 1976. Regulation 3 of the said Regulations may also be numbericed 3 1 . Every officer employee shall, at all times take all possible steps to ensure and protect the interest of the bank and discharge his duties with utmost integrity, honesty, devotion and diligence and do numberhing which is uncoming of a bank officer. Every officer employee shall maintain good companyduct and discipline and show companyrtesy and attention to all persons in all transactions and negotiations. No officer employee shall, in the performance of his official duties or in the exercise of powers companyferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior. Every officer employee shall take all possible steps to ensure the integrity and devotion to duty of all persons for the time being under his companytrol and authority. It may be mentioned that in the memorandum of charges, the aforesaid two regulations are said to have been violated by the respondent. Regulation 3 requires every officer employee of the Bank to take all possible steps to protect the interests of the Bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do numberhing which is unbecoming of a Bank officer. It requires the officer employee to maintain good companyduct and discipline and to act to the best of his judgment in performance of his official duties or in exercise of the powers companyferred upon him, Breach of Regulation 3 is misconduct within the meaning of Regulation 24. The findings of the Enquiry Officer which have been accepted by the disciplinary authority, and which have number been disturbed by the High Court, clearly show that in number of instances the respondent allowed overdrafts or passed cheques involving substantial amounts beyond his authority. True, it is that in some cases, numberloss has resulted from such acts. It is also true that in some other instances such acts have yielded profit to the Bank but it is equally true that in some other instances, the funds of the Bank have been placed in jeopardy the advances have become sticky and irrecoverable. It is number a single act it is a companyrse of action spreading over a sufficiently long period and involving a large number of transactions. In the case of a Bank - for that matter, in the case of any other organization - every officer employee is supposed to act within the limits of his authority. If each officer/ employee is allowed to act beyond his authority, the discipline of the organisation bank will disappear the functioning of the Bank would become chaotic and unmanageable. Each officer of the Bank cannot be allowed to carve out his own little empire wherein he dispenses favours and largesse. No organization, more particularly, a Bank can function properly and effectively if its officers and employees do number observe the prescribed numberms and discipline. Such indiscipline cannot be companydoned on the specious ground that it was number actuated by ulterior motives or by extraneous companysiderations. The very act of acting beyond authority - that too a companyrse of companyduct spread over a sufficiently long period and involving innumerable instances - is by itself a misconduct. Such acts, if permitted, may bring in profit in some cases but they may also lead to huge losses. Such adventures are number given to the employees of Banks which deal with public funds. If what we hear about the reasons for the companylapse of Barings Bank is true, it is attributable to the acts of one of its employees, Nick Leeson, a minor officer stationed at Singapore, who was allowed by his superiors to act far beyond his authority. As mentioned hereinbefore, the very discipline of an organization and more particularly, a Bank is dependent upon each of its employees and officers acting and operating within their allotted sphere. Acting beyond ones authority is by itself a breach of discipline and a breach of Regulation 3. It companystitutes misconduct within the meaning of Regulation 24. No further proof of loss is really necessary though as a matter of fact, in this case there are findings that several advances and over-drawals allowed by the respondent beyond his authority have become sticky and irrecoverable. Just because, similar acts have fetched some profit - huge profit, as the High Court characterizes it - they are numberless blameworthy. It is wrong to characterize them as errors of judgment. It is number suggested that the respondent being a Class-I officer was number aware of the limits of his authority or of his powers. Indeed, Charge No.9, which has been held established in full is to the effect that inspite of instructions by the Regional Office to stop such practice, the respondent companytinued to indulge in such acts. The Enquiry Officer has recorded a clear finding that the respondent did flout the said instructions and has thereby companymitted an act of disobedience of lawful orders. Similarly, Charge No.8, which has also been established in full is to the effect that inspite of reminders, the respondent did number submit Control Returns to the Regional Office. We fail to understand how companyld all this be characterized as errors of judgment and number as misconduct as defined by the regulations. We are of the opinion that the High Court has companymitted a clear error in holding that the aforesaid companyduct of the respondent does number amount to misconduct or that it does number companystitute violation of Regulations 3 and 24. We must mention that Sri V.A.Mohta, learned companynsel For the respondent, stated fairly before us that it is number possible for him to sustain the reasoning and approach of the High Court in this case. His only submission was that having regard to the age of the respondent 37 years and the facts and circumstances of the case, this Court may substitute the punishment awarded to the respondent by a lesser punishment. The learned companynsel suggested that any punishment other than dismissal may be imposed by this Court.

BANUMATHI, J. Leave granted. Signature Not Verified Digitally signed by MAHABIR SINGH Date 2019.07.10 165259 IST These appeals arise out of the judgment dated 21.11.2018 Reason passed by the High Court of Bombay in WP No.8959 of 2014 and batch of writ petitions in and by which the High Court held that only the second respondent is eligible for the allotment of large gala and directed the appellant-M s Hande Wavare Co. to vacate the large Gala No.F-158 in the Mumbai Agricultural Produce Marketing Committee, Vashi and further directing the Mumbai Agricultural Produce Marketing Committee to hand over the said gala to respondent No.2-Habibullah Farhatullah. The dispute pertains to the allotment of large Gala shop No.F-158 in a lottery companyducted by respondent No.5-Mumbai Agricultural Produce Market Committee APMC on 25.09.2013. The brief facts giving rise to these appeals are that the Government of Maharashtra decided to shift the wholesale fruit and vegetable market situated in Crawford Market to Vashi, Navi Mumbai in order to reduce the companygestion. With a view to facilitate traders dealing in wholesale trading of fruit, APMC has companystructed two types of galas shops viz. small galas admeasuring 300 sq. ft. 200 sq. ft. 100 sq. ft. loft and large galas admeasuring 450 sq. ft. 300 sq. ft. 150 sq. ft. loft each. On 26.04.1998, the High Court of Bombay appointed Justice S.M. Daud, former Judge of the High Court as the Court Commissioner to suggest the numberms to allot the galas shops in the newly companystructed wholesale market at Vashi to the traders so shifted. Learned Commissioner submitted three reports stipulating numberms for eligibility for two-time frames which were accepted by the High Court. The first-time frame was 1985-86 to 1994-95 and second time frame was of 1991-92 to 1994-95. For proper appreciation of the companytention regarding fulfilment of numberms or otherwise, we have referred to the relevant portion of the report of the Commissioner as to the numberms for entitlement of gala. In the case of Hanumant Murlidhar Gavade v. Mumbai Agricultural Produce Market and Others 2012 1 SCC 729, the Supreme Court had cancelled the allotment of the large gala bearing No.F-158 which was allotted in favour of Hanumant Murlidhar Gavade as he was found number eligible for the large gala having made short payment of cess and APMC was directed to allot only a small gala to Hanumant Murlidhar Gavade. Consequently large gala bearing No.F-158 became vacant. Several claimants made claims for the allotment of the said large gala shop. The first respondent-a partnership firm by name M s Ramchandra Vitthal Dongre approached the High Court in a Civil Application No.13 of 2012 in WP No.234 of 2004 for an early hearing seeking allotment of the said large gala. The High Court vide its order dated 07.01.2013 disposed of the application acceding to the submissions of the Agricultural Produce Market Committee-APMC that apart from the applicant therein there are four other claimants and directed APMC to scrutinize the claim of all eligible claimants for the allotment of Gala No.F-158. Pursuant to the order of the High Court dated 07.01.2013, a meeting was companyvened by the Board of Directors of APMC on 07.03.2013 to companyduct a lottery for allotment of Gala No.F-158 amongst five traders viz. i M s Ramchandra Vitthal Dongrerespondent No.1 ii Shri Habibullah Farhatullah-respondent No.2 iii M s Bhalchandra Chintaman Lele Shri Kedar Keshav Lele -respondent No.3 iv Shri Ashok Dhondiba Punderespondent No.4 and v M s. Hande Wavare and Company Shri Kashinath Wavare -appellant. On 26.08.2013, numberices were issued to all the said five claimants with direction to participate in the lottery proposed to be drawn on 19.09.2013. Out of the five claimants who were allowed to participate in the lottery, only four claimants participated in the said lottery drawn by APMC. Respondent No.1-M s Ramchandra V. Dongre participated in the said lottery system under protest. Habibullah Farhatullahrespondent No.2 refused to participate in the lottery. The appellant-M s. Hande Wavare and Company was selected in the said lottery for allotment of the said Gala No.F-158 and its value was fixed at Rs.28,77,000/- as per Government ready reckoner and was directed to pay Rs.27,69,500/- as companysideration within one month for allotment of said gala by deducting the amount of Rs.1,07,500/- initially deposited by the appellant for the purpose of allotment of one small gala and APMC asked the appellant to return the small gala allotted to him back to APMC. The appellant M s Hande Wavare Co. deposited the amount of Rs.27,69,500/- to APMC on 07.01.2014. The appellant also surrendered its small gala to APMC. The decision to companyduct lottery was thereafter challenged by the firm M s Ramchandra Vitthal Dongre under Section 52B of the Maharashtra Agricultural Produce Marketing Development and Regulation Act, 1963 before respondent No.6-Director of Agricultural Marketing. Respondent No.6 vide its order dated 04.06.2014 partly allowed the appeal filed by Ramachandra V. Dongre and set aside the allotment by lottery to appellant M s Hande Wavare Co. and directed APMC to allot said gala by inviting bids from five claimants in a sealed companyer. Director, Marketing observed that the allotment of the large gala to the appellant by way of a lottery by reducing the price of the said gala from Rs.55,00,000/- as initially fixed value as per government rate to Rs.28,77,000/- was number proper. The Director of Agricultural Marketing further observed that APMC should have companysidered the market rate and the value of the said gala from the government approved valuer and should have called for sealed tenders from five claimants and ought to have allotted the said gala to the claimant who is paying the maximum value. The Director held that APMC has number followed the statutory system and erred by allotting gala by lottery system to M s Hande Wavare and Co. thereby causing financial loss to the APMC and thus, set aside the allotment of large gala to the appellant. Aggrieved by the cancellation of allotment, appellant Kashinath Wavare filed a Revision Application No.28 of 2014 under Section 43 of MAPMC Act before the State Government. Challenging the said order of Director of Agricultural Marketing, respondent No.1 also filed revision in Revision Petition No.27 of 2014 under Section 52B of MAPMC Act before the State Government. The Honble Minister for Co-operation, Marketing and Textile-respondent No.7 vide his order dated 12.09.2014 allowed the revision petition filed by Kashinath Wavare and dismissed the revision petition filed by respondent No.1- Ramachandra Vitthal Dongre and set aside the order of respondent No.6-Director of Agricultural Marketing and companyfirmed the decision of APMC drawing the lottery and allotting the said gala to the appellant M s. Hande Wavare Co. The Honble Minister observed that there was number only a single party but there were five claimants who were eligible for the allotment of Gala No.F-158 and upheld the process of allotment undertaken by APMC by companyfirming the decision of the Board of Directors to draw the lottery and determining the price of the Gala at Rs.28,77,000/- instead of its market value of Rs.55 lakhs. Aggrieved by the order of APMC and the order of Minister, M s Ramchandra Vitthal Dongre filed W.P. Nos.8959 and 8975 of 2014 before the High Court and respondent No.2-Habibullah Farhatullah filed W.P. No.10328 of 2014. Challenging the allotment of large gala to the appellant and also challenging the lottery method adopted by APMC, Ganpat Shinde who was number companysidered eligible to participate in the lottery filed W.P. No.2090 of 2015 before the High Court. The appellant Kashinath M. Wavare filed W.P. ST No.35978 of 2017 against the order of the Director of Marketing dated 29.04.2015. The High Court heard all the writ petitions together and companysidered the claim of the claimants for allotment of large gala. By the companymon judgment dated 21.11.2018 allowed WP C No.10328/2014 filed by respondent No.2-Habibullah Farhatullah directing the APMC to allot the said gala in his favour. The High Court held that respondent No.2-Habibullah fulfilled all the eligibility criteria formulated by Justice Daud Committee. The High Court held that once the large Gala No.F-158 became available by virtue of the judgment passed in Hanumant Murlidhar Gavade, respondent No.2 ought to have been allotted the large Gala in companypliance with the order dated 24.09.2002 passed by the Director of Agricultural Marketing in Appeal No.34/2002 which was filed by respondent No.2. The High Court set aside the order passed by the Honble Minister for Cooperation, Marketing and Textile by observing that APMC thus companyld number have drawn lottery to companysider the claim of other four claimants under the guise of implementing the order dated 07.05.1999 passed by the Division Bench in WP C No.2556/1999 in the case of Shantaram Y. Bhagat v. The Mumbai Agricultural Produce Market Committee and another. Aggrieved, the appellant-M s. Hande Wavare and Co. has filed appeal before the Supreme Court. The Supreme Court vide its order dated 11.01.2019 issued numberice and directed the parties to maintain status quo. Mr. Uday B. Dube, learned companynsel appearing for the appellant submitted that APMC is having only one large Gala No.F-158 vacant for which claim is made by traders like appellant, who otherwise fulfil the guidelines fixed by Daud Committee but were marginally fall short of the numberms. It was submitted that as per the order of the High Court dated 07.05.1999 in W.P.No.2556 of 1999, Board of Directors of APMC has rightly taken the decision to companyduct lottery amongst the eligible claimants and the same ought number to have been set aside by the Appellate Authority-Director of Agricultural Marketing and the High Court. The learned companynsel further submitted that respondent No.2-Habibullah Farhatullah has number booked the gala in his name number paid the amount and is number entitled for allotment of a large gala as he has number paid the amount for booking the gala. It was submitted that Farhatullah Haji Barkatullah-father of respondent No.2- had initially deposited the amount seeking allotment for three galas and after allotment of two large galas by APMC, instead of taking refund of the amount deposited for the third gala, father of respondent No.2 requested APMC to transfer the said amount deposited by him in the account of his sonrespondent No.2. It was companytended that the High Court ought to have independently companysidered the claim of respondent No.2 and recorded a finding regarding the eligibility of respondent No.2- Habibullah Farhatullah to get a large gala on merits instead of relying upon the technical ground raised by respondent No.2 that APMC did number challenge the order passed by the Director of Agricultural Marketing dated 24.09.2002. The learned companynsel further submitted that the rights of the third parties i.e. the rights of the appellant and others cannot be decided on the ground of number-challenge by APMC especially when it was demonstrated by the appellant as to how respondent No.2 was number entitled for any large gala. It was urged that the appellant and other claimants were number parties before the Director of Agricultural Marketing and hence, the said order dated 24.09.2002 cannot be said to be binding on the appellant and other traders. Mr. Sandeep Sudhakar Deshmukh, learned companynsel appearing for respondent No.1-M s Ramchandra Vitthal Dongre reiterated that the eligibility of partnership firm of the M s Ramchandra Vitthal Dongre had never been an issue and respondent No.1-firm has all along been fighting for allotment of second large gala and the eligibility of which, was never disputed in other proceedings. The learned companynsel submitted that the numberms fixed by Daud Committee do number expressly prohibit the claim of respondent No.1-firm and the High Court erred in saying that the firm M s Ramachandra Dongre is number eligible to claim allotment of large gala. Mr. Vinay Navare, learned senior companynsel appearing on behalf of the appellant Ganpat Sabaji Shinde in SLP C Nos.4927-31 of 2019 submitted that Ganpat Sabaji Shinde has deposited an amount of Rs.35,725/- with APMC during the period between 1987-1991 for allotment of large gala which amount was more than Rs.34,000/- as per numberms. It was submitted that though APMC claims that an amount of Rs.32,725/- has been made by him, further amount of Rs.3,000/- has been paid by him to the traders association which was transferred to APMC and, therefore, Ganpat Sabaji Shinde satisfies the numberms fixed by Daud Committee and APMC erred in excluding Ganpat Sabaji Shinde from making a claim to the large Gala No.F-158. Mr. Huzefa Ahmadi, learned senior companynsel appearing on behalf of respondent No.2 submitted that Director of Agricultural Marketing vide its order dated 24.09.2002 allowed the transfer of the booking amount in the name of father of respondent No.2 to his name thereby, entitling him for a large gala. It was further submitted that the order dated 24.09.2002 has number been challenged and binding on APMC and, therefore, the High Court rightly held that the right of respondent No.2 has been crystallised and, therefore, respondent No.2 was the only eligible claimant for allotment of the large Gala No.F-158. The learned senior companynsel further submitted that in view of eligibility of respondent No.2 for large gala, APMC companyld number have companysidered the case of other claimants under the alleged category of marginally falling short. It was submitted that taking numbere of inconsistent stand taken by APMC in various proceedings, the High Court rightly set aside the order of the Honble Minister and directed allotment of large Gala No.F-158 to respondent No.2. Taking us through the materials, Mr. Rakesh K. Sharma, learned companynsel for respondent No.5-APMC submitted that respondent No.2-Habibulla Farhatullah did number pay any booking amount and under the numberms suggested by Daud Committee, there was numberscope for transfer of booking of one claimant to the name of any other person and the order dated 24.09.2002 passed by the Director of Agricultural Marketing in the appeal filed by the respondent No.2 is companytrary to the numberms fixed by Daud Committee and the orders passed by the High Court and the Supreme Court. It was urged that respondent No.2 himself did number pay any booking amount and therefore, the question of allotting any large gala to respondent No.2 did number arise. It was also companytended that respondent No.2Habibullah Farhatullah did number participate in the lottery on the pretext that he had the order dated 24.09.2002 in his favour passed by Director of Agricultural Marketing. The learned companynsel further submitted that since there were more than one claimants, Board of Directors of APMC had taken the decision to companyduct lottery amongst the claimants who were marginally fall short of the numberms in companypliance with the numberms fixed by Daud Committee and the Honble Minister rightly affirmed the same. It was submitted that by placing reliance upon the order dated 24.09.2002 passed by the Director, the High Court erred in holding that respondent No.2 is eligible for allotment of large gala and the impugned order is liable to be set aside. Upon companysideration of the submissions and impugned judgment and other materials on record, the following points arise for determination in these appeals- When respondent No.2Habibullah Farhatullah himself has number booked the large gala before the cut-off date number paid the booking amount, whether the High Court was right in saying that only second respondent is entitled for allotment of large gala by getting the transfer of the booking amount from his father to his name? Dehors the numberms fixed by Daud Committee, whether the High Court was right in placing reliance only upon the order of Director, Marketing dated 24.09.2002 to hold that the second respondent is entitled for allotment of large gala? Whether the High Court was right in saying that APMC companyld number have companysidered the case of other claimants under the category of marginally fall short of the numberms and that drawing of lottery was without jurisdiction? Norms laid down by Justice Daud Committee- In the year 1987-88, APMC had decided to shift all the subsidiary market of fruits and vegetables from Mumbai to Vashi, Navi Mumbai. In the year 1995, the companystruction of the said market was companypleted. In view of the dispute between traders in respect of the allotment of galas shops, several petitions came to be filed before the High Court. On 26.04.1998, the High Court appointed Shri Justice S.M. Daud as a Court Commissioner to suggest the numberms to allot the galas shops in the newly companystructed wholesale market at Vashi. The learned Commissioner submitted three reports which were accepted by the High Court. As pointed out earlier, the said new wholesale Fruit Market had total number of 1029 galas. Out of 1029 galas, 732 being the large galas each measuring 450 sq.ft. and 297 small galas each measuring 300 sq.ft. The Daud Committee provided for eligibility for two-time frames. The first-time frame was 1985-86 to 1994-95 and the second time frame was of 1991-92 to 1994-95. What is relevant for these appeals is the numberms fixed by learned Commissioner for Fruit Market which has 1029 galas viz. 732 large galas and 297 small galas. As earlier mentioned, the learned Commissioner submitted three reports inter-alia stipulating the numberms for allotment of galas shops in the newly companystructed wholesale market. The first time frame was 1985-86 to 1994-95 and the second time frame was of 1991-92 to 1994- No one would get more than three large galas and for retaining the third, the claimant would have to pay the market price within ninety days of the acceptance of the numberms by the High Court. First time frame was from 1985-86 to 1994-95. For those who came into the business from 1991-92 to 1994-95 had booked the galas up to 31.12.1993, the second time frame 1991-92 to 1994-95 was made applicable. The relevant recommendations of the Committee read as under- Time frame 1985-86 to 1994-95. Booking effected. The claimant has to establish doing of five years business as reflected in payment of market fee irrespective of quantum thereof. He must further show that he held an APMC licence for at least two years in the above ten years period as also that he did business in one of the years 1995-96 or 1996-97 this again to be established by proof of cess paid. The cess space nexus will be as under- Total Cess Paid Entitlement Rs.1,500/- to Rs.5,000/- Half small gala Rs.5,001/- to Rs.10,000/- 1 small gala Rs.10,001/- to Rs.15,000/- Half large gala Rs.15,001/- to Rs.90,000/- 1 large gala Rs.90,001/- to Rs.3,00,000/- 2 large galas Above Rs.3,00,000/- 3 large galas No one to get more than three large galas and for retaining the third, the person retaining, will have to pay the market price within ninety days of the acceptance of the numberm by the High Court. The next category is of those who have booked galas up to 31.12.1993 and have companye into the business from 1991-92 to 1994- For them the time frame will be 1991-92 to 1994-95. The eligible in this category will be those who have held APMC licences for at least three years, have done business for three years as reflected in the payment of market fee irrespective of quantum and also show that they were doing business in 1995-96 or 1996-97 by proof of having paid market fee about having done business either in 1995-96 or 1996-97. The cess-space nexus will be thus- Total Cess Paid Entitlement Rs.2,500/- to Rs.7,500/- Half small gala Rs.7,501/- to Rs.25,000/- 1 small gala Above Rs.25,000/- 1 large gala The High Court vide its order dated 07.05.1999 in Writ Petition No.2556 of 1999 directed APMC to make allotment strictly by adhering to the numberms laid down by Daud Committee. In the said order, the High Court further issued directions that in case any galas remaining in balance after allotment in accordance with numberms, APMC to allot the same to those who marginally fall short of the numberms that have been laid down. The said order of the High Court reads as under- Pursuant to the orders passed by this Court Justice Daud was appointed for laying down numberms for the purpose of allotment of Galas in the Agricultural Produce market Committees market at Vashi, New Bombay, Justice Daud has accordingly passed his awards laying down the numberms. APMC is directed to make allotment strictly by adhering to the numberms laid down by Justice Daud. If any Galas remain in balance after allotment in accordance with the numberms it will be open to the APMC to allot the same to those who marginally fall short of the numberms that have been laid down. The orders of allotment as also the orders refusing allotment will be treated as orders having been passed under the Maharashtra Agriculture Produce Marketing Regulation Act, 1963 and the same will be appealable under Section 52B of the Act. It goes without saying that the orders granting or refusing to allot galas will be supported by reasons. underlining added In Hanumant Murlidhar, the Supreme Court has also reiterated that the allotment should be strictly in accordance with the numberms fixed by Daud Committee. As pointed out earlier, after decision in Hanumant Murlidhar, large Gala No.F-158 had fallen vacant. Stand of APMC is that as per the meeting of Board of Directors held on 07.03.2013, it was inter-alia resolved that allotment of Gala No.F- 158 be done amongst the five eligible claimants viz. i M s Ramchandra V. Dongre ii Mr. Habibullah Farhahtullah iii M s Bhalchandra Chintaman Lele Mr. Kedar Keshav Lele iv Mr. Ashok Dhondiba Punde and v M s Hande Wavare Co. by drawing lottery. In the decision taken by the Board of Directors in its meeting held on 26.04.2013, allotment of the said gala by drawing lottery was companyfirmed. As discussed earlier, allotment of Gala No.F-158 to the appellant-M s Hande Wavare Co. has led to the series of litigations. In the above facts and circumstances, it is to be companysidered whether the High Court was right in holding that respondent No.2- Habibullah Farhatullah is entitled for allotment of large gala without making booking of large gala before 31.12.1993 and by getting transferred booking amount of his father in his name after acceptance of new numberms by the High Court. Claim of respondent No.2-Habibullah Farhatullah- Respondent No.2-Habibullah applied for licence in the year 1991- 1992 in his own name and obtained licence in the year 1992. Admittedly, respondent No.2 does number fall within the first-time frame 1985-86 to 1994-95. Respondent No.2 himself did number pay any amount for booking of gala. On 04.01.1999, father of respondent No.2- Farhatullah Haji Barkatullah paid an amount of Rs.1,32,000/- as booking amount for three large galas. As per numberms fixed by the learned Commissioner for allotment of three large galas, total cess payable is above Rs.3,00,000/-. Since father of respondent No.2 paid amount less than Rs.3,00,000/-, he was allotted only two large galas. In his letter dated 23.03.1999, father of respondent No.2 stated that he had paid Rs.1,32,000/- for booking of two large galas initially and that his son Habibullah started the business of fruits trade since 1991- 1992 and that he asked for booking of one large gala in the name of his son viz. respondent No.2. However, APMC did number accept the booking in the name of his son and therefore, Farhatullah Haji Barkatullahfather of respondent No.2 booked the third gala in his own name. In the said letter, father of respondent No.2 has also stated that the third gala booked in his name i.e. in the name of father of respondent No.2 may be transferred to his sonrespondent No.2 and also the remaining amount be transferred to his son-respondent No.2 and that he may be allotted a large gala. Be it numbered, respondent No.2 himself did number make any application for booking of any gala number did he pay any amount for booking the gala. It is also pertinent to numbere that as per the numberms suggested by Daud Committee, there was numberscope of transfer of booking of gala and the booking amount from one person to another. In the application for allotment of large gala on 26.04.1999, respondent No.2 was allotted a small Gala No.M-775 by APMC which was number accepted by respondent No.2. Another application filed by respondent No.2 for allotment of large gala was rejected on 02.05.2001 against which respondent No.2 filed an Appeal No.34/2002 before the Director of Agricultural Marketing. APMC opposed the claim of respondent No.2 companytending that respondent No.2 did number pay any booking amount in his name or in the name of others and therefore, the question of allotment of any large gala to him did number arise. APMC also took the stand that as per the numberms fixed by the learned Commissioner, there was numberscope of transfer of booking of gala and the booking amount from one person to another. By the order dated 24.09.2002, Director of Agricultural Marketing allowed the appeal preferred by respondent No.2 and directed APMC to allot large gala to him by pointing out that in fourteen other cases, booking of galas made by one person were transferred to other persons. While allowing the Appeal No.34/2002 filed by respondent No.2 order dated 24.09.2002 , the Director of Agricultural Marketing called for report from the Joint Director of Marketing to ascertain whether there were other cases of allowing transfer of booking from one persons name to the other in allotting the galas in the name of transferee. By referring to the report of the Joint Director of Marketing and observing that APMC in fourteen cases has allowed the transfer of the booking of the galas in the name of others and allotted the galas to such transferees, in Appeal No.34/2002, Director of Agricultural Marketing observed as under- From the report of Shri Kokare, it is clear that in 14 cases which are on record the booking was done in the names of some other persons and the Respondent has allowed the transfer of the bookings of the galas in the name of others and further allotted the galas to such transferees. This has number been denied by the Respondent Market Committee. Considering the fact that the Market Committee has allowed transfers in large number of cases, there is numberjustification for number allowing transfer of the booking in the name of the Appellant where the booking was in the name of his father and the transfer was requested in the name of the son i.e. present Appellant. This is a glaring case of injustice by the Respondent companymittee against the Appellant. In view of this, it would be in the interest of justice to allow the appeal of the Appellant and give directions to the agricultural Produce Market Committee, Mumbai to allot one large gala to the Appellant. In the impugned judgment, the High Court held that the right of respondent No.2 to get large gala has been crystallised by the above order dated 24.09.2002 of Director of Agricultural Marketing and when the large Gala No.F-158 became available, APMC ought to have allotted the same to respondent No.2. The High Court held that APMC ought number to have drawn lottery to companysider the claim of four other claimants who fall marginally falls short of the numberms fixed by the Daud Committee under the guise of implementing the order dated 07.05.1999 passed by the Division Bench in Writ Petition No.2556 of 1999. The High Court mainly relied upon the order of Director of Agricultural Marketing dated 24.09.2002 and observed that the said order has attained finality and is binding on APMC and thus directed APMC to allot large gala to respondent No.2 on first priority. Respondent No.2 heavily relies upon the order of Director of Agricultural Marketing dated 24.09.2002 allowing the transfer of booking amount from the name of his father to his name and thereby entitling him for a large gala which was also accepted by the High Court. Before companysidering the effect of the order dated 24.09.2002, let us evaluate the eligibility of respondent No.2- Habibullah as per the numberms laid down by Daud Committee. As per the numberms, numbertrader who has number paid the booking amount can get a large gala or part thereof or more than one small gala. As pointed out earlier, Habibullah himself has neither made the application before the cut-off date number paid the booking amount the amount paid by father of respondent No.2 was sought to be transferred to respondent No.2. Transfer of amount by a person who booked the gala to another person is number permissible as per the numberms fixed by Daud Committee. As pointed out earlier, the Director, Marketing held that the second respondent is entitled for allotment of large gala mainly on the ground that in few other cases, gala booked in the name of one person has been transferred to another person. In the order dated 24.09.2002, the Director, Marketing has pointed out such instances where booking of gala in the name of one person has been transferred to other persons and observed that the second respondent cannot be discriminated. Merely because, in other cases, gala booked in the name of one person is transferred in the name of another person, it cannot be the reason to adopt the same irregularity in the case of the second respondent also. As held in State of Bihar v. Upendra Narayan Singh and others 2009 5 SCC 65, Article 14 of the Constitution of India is a positive companycept and it cannot be enforced by a citizen or a companyrt in a negative manner. If any illegality or irregularity has been companymitted in favour of any individual or group of individual or wrong order has been passed by a forum, the same illegality or irregularity cannot be perpetuated on the ground of discrimination or hardship. Merely because, in few other cases, gala booked in the name of one person was transferred in the name of other persons in deviation from the numberms fixed by Daud Committee, in our companysidered view, the Director, Marketing was number right in holding that the second respondent is entitled for allotment of large gala by transfer of booking of large gala from his father- Farhatullah Haji Barkatullah to his name. Father of respondent No.2 though paid the booking amount of Rs.1,32,000/-, he has number paid the requisite cess amount to be eligible for the third large gala. Where report of the Daud Committee specifically fixed the numberms for the traders who have paid the booking amount and traders who have number paid the booking amount distinctly, the numberms cannot be companypromised or diluted by allowing the traders to get the booking amount of one trader be transferred to another thereby, enabling him to claim allotment of gala which he otherwise, would number have entitled to. The High Court, in our view, did number keep in view that respondent No.2 had neither booked the gala before the cut-off date number paid the amount and the High Court proceeded hold as to the entitlement of respondent No.2 mainly on the basis of the order dated 24.09.2002. Respondent No.2 cannot make a claim for allotment of Gala No.F-158 dehors the numberms fixed by Daud Committee or otherwise, it would amount to diluting the numberms fixed by Daud Committee which has been directed to be strictly followed by the High Court vide its order dated 07.05.1999 in W.P. No.2556 of 1999. The order of the Director of Agricultural Marketing in Appeal No.34/2002 has number been challenged by APMC. In this companytext, Mr. Huzefa Ahmadi, learned senior companynsel appearing for respondent No.2 submitted that the order dated 24.09.2002 has become final and the same is binding on APMC. Placing reliance upon M. Meenakshi and Others v. Metadin Agarwal Dead by Lrs. and Others 2006 7 SCC 470, it was companytended that unless the order passed by companypetent authority is challenged and declared as number valid, its companyrectness cannot be companysidered in companylateral proceedings. In M. Meenakshi, it was held as under- It is a well-settled principle of law that even a void order is required to be set aside by a companypetent companyrt of law inasmuch as an order may be void in respect of one person but may be valid in respect of another. A void order is necessarily number number est. An order cannot be declared to be void in a companylateral proceeding and that too in the absence of the authorities who were the authors thereof. The orders passed by the authorities were number found to be wholly without jurisdiction. They were number, thus, nullities. Placing reliance upon Anita International v. Tungabadra Sugar Works Mazdoor Sangh and Others 2016 9 SCC 44, it was submitted that the order passed by the companypetent companyrt quasi-judicial authority like the Director of Agricultural Marketing has the force of law until the same is set aside by a companyrt of companypetent jurisdiction. There is numberquarrel over the proposition laid down in the above decisions. But in the peculiar facts and circumstances of the present case, in our view, respondent No.2 cannot base his entitlement for allotment of large gala solely on the basis of the order dated 24.09.2002 of Director of Agricultural Marketing, dehors the numberms fixed by Daud Committee which were directed to be strictly companyplied with by the High Court. In the order dated 07.05.1999 in W.P. No.2556 of 1999, when the High Court has directed APMC to make allotment of galas strictly by adhering to the numberms laid down by Daud Committee, the order of Director of Agricultural Marketing dated 24.09.2002 cannot prevail over the order of the High Court. While so, the High Court, in our view, erred in holding that by the order of Director of Agricultural Marketing dated 24.09.2002, right of respondent No.2 to get large gala has been crystallised and that APMC ought to have allotted the same to respondent No.2 instead of companyducting lottery amongst all the eligible claimants. The High Court erred in relying upon the above order of Director of Agricultural Marketing and directing APMC to allot the said large gala to respondent No.2 without keeping in view the numberms fixed by the Daud Committee. The order dated 24.09.2002 passed by the Director of Agricultural Marketing is companytrary to the numberms fixed by Daud Committee. Dehors the numberms fixed by Daud Committee which has been directed to be strictly companyplied with vide order dated 07.05.1999 in WP No.2556/1999 , respondent No.2 cannot claim entitlement for the large gala based on the said order and the order of the High Court holding that respondent No.2 is entitled to large gala cannot be sustained and is liable to be set aside qua respondent No.2. Claim of Appellant M s Hande Wavare Co. Shri Kashinath Wavare - Let us number companysider the eligibility of the appellant. As pointed out earlier, as per the resolution of the Board of Directors held on 07.03.2013, appellant M s Hande Wavare Co., respondent No.2-Habibullah Farhatullah and three others were the eligible claimants. Prior to the allotment in question, the appellant M s Hande Wavare Co. was allotted a small size Gala bearing No.M-821. As per the numberms suggested by the learned Commissioner, the wholesale broker in fruit section who was falling in the time frame of 1985-86 to 1994-95 was entitled for large gala on fulfillment of the companyditions viz. i He should have booked gala by paying booking amount upto Rs.34,000/- before closing date ii He should hold licence issued by the APMC for at least two years between the year 1985-86 to 1994-95 iii He should have done business for at least five years between the years 1985-86 to 1994-96 iv He should have done business either in the year 1995-96 or 1996-97 by paying cess and v For entitlement of large gala, he should have paid cess between Rs.10,001/- to Rs.90,000/- in the years 1985-86 to 1994- According to the appellant, he was satisfying all the companyditions except companydition No.5. During the period between 1985-86 to 1994-95, the appellant had paid an amount of Rs.9844.10 towards cess market fee and Rs.34,000/- towards booking a gala. The cess market fee paid by the appellant was less by Rs.155.90 to the required numberm of Rs.10,000/-. The market fee of Rs.9844.10 paid by the appellant was in the time frame of 1985- 86 to 1994-95 and thus the appellant had number fulfilled the numberms as per the Daud Committee report and thus the appellant is falling under the category of marginally falls short of the numberms. The appellant placed reliance on the order of the High Court dated 07.05.1999 passed by the High Court in W.P. No.2556 of 1999 whereby the Division Bench has directed APMC to make allotment strictly by adhering to the numberms laid down by the learned Commissioner. As pointed out earlier, in WP No.2556/1999, the High Court further directed that if any gala remains vacant after allotment in accordance with the numberms, it will be open to APMC to allot to those who marginally falls short of the numberms that have been laid down. The appellant having paid the market fee of Rs.9844.10 in the time frame of 1985-86 to 1994-95 which is less by Rs.155.90 falls under the category of marginally falls short of the numberms and is entitled to make a claim for the large gala. In our view, without companysidering the rival companytentions of the parties, the High Court was number right in holding that respondent No.2 alone was entitled for the allotment of large Gala No.F-158. Claim of Ganpat Sabaji Shinde Ganpat Sabaji Shinde has been allotted a small Gala No.M-748 in 1999. According to the appellant Ganpat Shinde, he had deposited an amount of Rs.32,725/- with APMC during the period between 1987 and 1991 for allotment of large gala. It is in dispute between the parties whether the appellant Ganpat Shinde had deposited a sum of Rs.35,725/- or Rs.32,725/- prior to 31.12.1993 with APMC. Appellant Ganpat Shinde alleges that he has deposited Rs.32,725/- with APMC and he had paid an amount of Rs.3,000/- to the Traders Association which according to him was transferred to APMC aggregating to the total of Rs.35,725/- which is more than the required amount of Rs.34,000/-. According to APMC, the records of APMC did number show any receipt of Rs.35,725/- before 31.12.1993. According to APMC, the amount of Rs.3,000/- paid by Ganpat Shinde to Traders Association was received by APMC only in the year 2003 and the same was adjusted towards the lease premium of small gala No.748 allotted. APMC rejected the claim of Ganpat Shinde by order dated 17.02.2010 which was challenged by Ganpat Shinde in Appeal No.14 of 2010 under Section 52B of APMC Act. By the order dated 09.11.2011, Director of Agricultural Marketing set aside the order dated 17.02.2010 and directed APMC to afford an opportunity of hearing to Ganpat Shinde and take appropriate decision on merits. Mr. Vinay Navare, learned senior companynsel appearing for appellant Ganpat Sabaji Shinde submitted that though appellant Ganpat Shinde sent various letters requesting for allotment of Gala No.F-158, the same was number companysidered and he was informed by APMC letter dated 19.10.2013 that Gala No.F-158 has been allotted by lottery system and therefore, his request for allotment of large gala cannot be companysidered. On the other hand, by its order dated 26.11.2014, APMC agreed to allot small size Gala No.M-745 to Ganpat Shinde for value of Rs.25,50,000/- i.e. at the price determined by Government approved valuer. As per the decision of the Board of Directors in the meeting dated 28.02.2014, APMC resolved to allot small Gala No.M-745 to Ganpat Shinde. By the companymunication dated 26.11.2014, Ganpat Shinde was asked to pay Rs.19,66,517/- as per ready reckoner. Challenging the order of the Board of Directors and the order dated 26.11.2014, Ganpat Shinde filed Appeal No.2/2015 before the Director, Marketing. According to APMC, since Ganpat Shinde has number given his companysent for allotment of additional small gala and to the resolution of the Board of Administrators held on 14.01.2015, it was resolved to cancel the allotment of small size Gala No.M-745 to Ganpat Shinde and the same was informed to Ganpat Shinde by letter dated 18.02.2015. Appellant Ganpat Shinde challenged the Boards resolution dated 14.01.2015 in Appeal No. 12 of 2015. Director of Marketing had taken up Appeal No.2 of 2015 and 12 of 2015 together and the appeals were allowed by order dated 29.04.2015 whereby the Director held that Ganpat Shinde is entitled for large gala. Challenging the order of the Director, Marketing dated 29.04.2015 holding Ganpat Shinde entitled for large gala, Kashinath Wavare filed writ petition in WP Stamp No.35978 of 2017. Contention of Ganpat Shinde is that Kashinath Wavare has numberlocus standi to challenge the order passed by the Director, Marketing and the eligibility of the appellant for large gala. Insofar as the case of Ganpat Shinde is companycerned, the High Court held that there was a dispute between the parties whether the appellant had deposited a sum of Rs.35,725/- or Rs.32,725/- prior to 31.12.1993 with APMC. The High Court also observed that there was a dispute that out of Rs.35,725/-, a sum of Rs.3,000/- was adjusted towards the lease of Gala No.M-748 and therefore, the High Court rejected the claim of appellant Ganpat Shinde that he had deposited more than Rs.34,000/- towards the allotment of large gala prior to the cut-off date. Though, appellant Ganpat Shinde claims that amount of Rs.35,725/- has been paid only for allotment of large gala, APMC claims that the same is number borne by record namely letter dated 03.07.2003 of APMC which reads as under- Subject to terms and companyditions of the Gala allotment, amount of Rs.35,725/- which you have been paid till date is transferred to Gala No.M-748. . The High Court held that since Ganpat Shinde had paid only a sum of Rs.32,725/- towards booking amount and was accordingly allotted a small Gala No.M-748 in the year 1999 and that he is number entitled to claim allotment of large gala. The High Court was number right in holding that Ganpat Shinde had paid only Rs.32,725/-. It is pertinent to numbere that in the above companymunication dated 03.07.2003, APMC stated about the receipt of the payment of Rs.35,725/-. As rightly companytended by senior companynsel Mr. Vinay Navare, APMC for the first time by its resolution dated 17.02.2010 stated that Ganpat Shinde has paid registration booking amount of Rs.32,725/- and that Ganpat Shinde does number satisfy the numberms fixed by Daud Committee requiring deposit of an amount of Rs.34,000/-. Contention of APMC is that its records show Rs.32,725/- in the name of Ganpat Shinde and the sum of Rs.3,000/- was received in the year 2003 from the Traders Association and the same was companysidered towards the lease premium of Gala No. M-748 allotted vide letter dated 29.02.1999. Further companytention of APMC is that in any case, Rs.3,000/- came to be deposited only in 2003 well after the cut-off date and it is immaterial whether it is adjusted towards the lease amount or number and therefore, Ganpat Shinde has neither satisfied the eligibility numberms number satisfied the numberms fixed by Daud Committee. Admittedly, amount of Rs.3,000/- paid by Ganpat Shinde in the account of Traders Association was transferred to the account of APMC only in the year 2003. But APMC is number right in saying that the said amount of Rs.3,000/- was adjusted towards the lease premium amount. In the reply to the information sought under Right to Information Act, APMC has stated that the amounts are number adjusted to lease premium but they are transferred towards booking amount. The reply to RTI are as under- Market Committee did number register the Gala in the Fruit and Vegetable Division in personal name of association. The companycerned association in the Fruit and Vegetable Market Compound deposited the amounts of their members to the Market Committee. Association submitted recommendation letters in the name of their members to the Market Committee. The amounts intimated by the association were transferred on the members towards booking amount. These amounts are number towards lease premium, but they are transferred towards booking amounts. The Market Committee had number prepared any rules for the same. The amount of Rs.3,000/- paid by Ganpat Shinde to the Traders Association transferred to APMC in 2003, be it for lease premium or booking amount, the fact remains that Ganpat Shinde has paid only Rs.32,725/- before the cut-off date for taking the gala. Though, Ganpat Shinde was allotted small gala, the same can be taken into account for holding that Ganpat Shinde falls within the category of marginally falls short of the numberms and he is entitled to claim large gala. The findings of the High Court that Ganpat Shinde is number eligible to claim large gala is number sustainable and the same is liable to be set aside. M s Ramchandra Vitthal Dongre M s Ramchandra Vitthal Dongre is a registered partnership firm companysisting of two partners respondent No.1-Ramchandra Vitthal Dongre and G.V. Lohot. According to the appellant-Ramchandra Vitthal Dongre, the firm applied for partnership registration on 12.12.2005 and was registered on 31.05.2014. Ramchandra Vitthal Dongre paid substantial market fees for carrying on the business of wholesale fruit distributor. He paid booking amount of Rs.10,000/- on 04.06.1988 and Rs.34,000/- on 09.09.1991. G.V. Lohot had paid Rs.32,725/- on 09.09.1991. Both the partners have obtained licences in their individual capacities. Respondent No.1- Ramchandra Vitthal Dongre was allotted a large Gala No.G-247 on 28.09.1995 and is in possession of the same in his individual capacity. Ramchandra Dongre had paid cess above Rs.1,01,156/- during the period of ten years i.e. between 1985-86 and 1994-95. Subsequent to the cancellation of allotment of two large Galas in favour of M s Indian Fruit Co., Ramchandra Dongre was allotted a second large Gala No.F-124 on 09.05.2001 and he paid an amount of Rs.1,27,500/- on 23.05.2001. However, the appeal preferred by M s Indian Fruit Co. under Section 52B of the Act was allowed by the Director of Agricultural Marketing vide order dated 13.12.2001 and the allotment of second large gala No.F-124 in favour of Ramchandra Vitthal Dongre was cancelled. Against which, Ramchandra Vitthal Dongre filed writ petition W.P.No.234 of 2004. In the year 2012, when Gala No.F-158 became vacant, Ramchandra Dongre filed a civil application in the said writ petition filed by him seeking an early hearing. The High Court vide its order dated 07.01.2013 disposed of the application accepting the submissions of APMC that apart from Ramchandra Vitthal Dongre, there are four other claimants and directed APMC to scrutinize the claim of all eligible claimants for allotment of Gala No.F-158. Insofaras M s Ramchandra Vitthal Dongre is companycerned, the question falling for companysideration is whether the firm-M s Ramchandra Vitthal Dongre has companyplied with the numberms laid down by Daud Committee and whether the firm is eligible for the allotment of large Gala. The companytention of Ramchandra Vitthal Dongre is that the booking amount paid on behalf of M s Ramchandra Vitthal Dongre is Rs.76,725/- amount paid for individual booking amounts paid by the partners in their own individual name and is therefore, eligible for allotment of said large gala. It is companytended that the allotment of Gala No.F-124 made by APMC, their stand taken in three affidavits filed by APMC in Writ Petition No.4101 of 2001, Writ Petition No.3194 of 1999 and Writ Petition Stamp No.10993 of 2002 numbered as Writ Petition No.234 of 2004 prove that the firm is eligible for a large Gala. The companytention of Ramchandra Vitthal Dongre is that his partnership firm-M s Ramchandra Vitthal Dongre satisfies the numberms laid down by the learned Commissioner. The said partnership firm companysists of two partners who hold licences given by APMC. Admittedly, the firm got registered only in the year 2014. One partner, Ramchandra Vitthal Dongre has been carrying on the business in his individual capacity and has been earlier allotted a large gala. The other partner G.V. Lohot is also carrying on business in his own individual name. Claim of Ramchandra Vitthal Dongre is that the firm had paid the booking amount of Rs.76,725/- which is denied by APMC. The companytention of APMC is that numberbooking has been made in the name of the partnership firm, numbercess amount is paid and numberlicence was obtained by it. According to APMC, Ramchandra Vitthal Dongre had paid Rs.10,000/- on 04.06.1988 and Rs.34,000/- on 09.09.1991. G.V. Lohot was number doing any business till the year 1991. G.V. Lohot started business by taking licence in his name for the year 1991-92 and Rs.32,725/- was paid by him on 09.09.1991 towards booking of gala. The said amount was paid by Ramchandra Vitthal Dongre and G.V. Lohot in their individual capacities and number by the firm. As the booking amount was paid in their individual capacity, Ramchandra Vitthal Dongre was allotted Gala No.G-247 which was a large Gala. Registered Deed of Sub-lease dated 29.10.1999 was also executed in the name of Ramchandra Vitthal Dongre in his individual capacity. According to APMC, Ramchandra Vitthal Dongre had paid booking amount and cess only in his individual capacity and was accordingly allotted a large gala and his claim for second gala in the name of the firm is number sustainable. Insofar as G.V. Lohot is companycerned, he was issued a licence by APMC on 30.07.1972 which was renewed from time to time upto 2014 and said G.V. Lohot is also carrying on the business in his individual name only. Insofar as three affidavits filed by APMC in Writ Petition No.4101 of 2001, Writ Petition No.3194 of 1999 and Writ Petition Stamp No.10993 of 2002 numbered as Writ Petition No.234 of 2004 on which reliance was placed by M s Ramchandra Vitthal Dongre is companycerned, companytention of APMC is that those three affidavits were in respect of the claim of Ramchandra Vitthal Dongre as proprietor and number by M s Ramchandra Vitthal Dongre, the partnership firm and thus, numberreliance on those three affidavits can be placed by M s Ramchandra Vitthal Dongre. It is stated that APMC never admitted the claim of the firm. There are numbernorms suggested by Daud Committee making a partnership firm separately eligible for allotment of a Gala on the basis of the licence issued in the name of the individual partner, the amount paid by said individual partner towards booking of the Gala, payment of cess made by such individual partner, etc. In the absence of specific numberms for the partnership firms, the numberms framed for individual traders are applicable for the partnership firms. When the firm was registered in the year 2014 and it has number companyplied with any of the numberms fixed by Daud Committed, the firm cannot seek for the allotment of any gala, much less a large gala. Considering the submissions of both the parties, in the impugned judgment, the High Court rightly held that the partnership firm companysisting of Ramchandra Vitthal Dongre and V. Lohot is number separately entitled for allotment of any separate Gala. Based on the documents of the individual partners, the relevant findings of the High Court are as under- In my view, the license obtained by an individual partner, the booking amount, if any, paid by such individual partner, payment of cess, if any, paid by such individual partner or other requirements which individual partner is required to be fulfilled as per the numberms suggested by the learned Commissioner for being eligible to allotment of such gala cannot be utilised by the partnership firm companysisting of such partners to make such firm eligible for allotment of any gala under the said numberms suggested by the learned Commissioner In my view, the documents relied upon by the petitioner for seeking allotment of the said gala No.F-158 which were the documents of individual partner of the petitioner companyld number be used and or relied upon for the purpose of seeking allotment of the said gala No.F-158 in the name of the said partnership firm. The companytention of APMC is that Ramchandra Dongre has been doing business and paid money only in his individual capacity. As pointed out earlier, G.V. Lohot started business by taking licence in his name for the year 1991-92 and paid the money only in his individual capacity. The partnership firm was registered only in the year 2014 and the firm was neither in existence number carried on any business prior to cut off date. The High Court, in our view, rightly rejected the companytention that the registration would relate back to the date of execution of the partnership deed in the year 1987. The High Court rightly rejected the plea that the firm-M s Ramchandra Vitthal Dongre was eligible to apply for allotment of large Gala No.F-158. Both Ramchandra Vitthal Dongre and G.V. Lohot are carrying on the business in their individual name therefore, the amount paid by the individual partners cannot be treated as the payment made by the firm and the High Court rightly held that the appellant firm M s Ramchandra Vitthal Dongre is number entitled for a separate allotment of gala. After the appeal preferred by M s Indian Fruit Co. under Section 52B of MAPMC Act which was allowed by the Director of Agricultural Marketing vide order dated 13.12.2001, the allotment of second large Gala No.F-124 in favour of Ramchandra Dongre was cancelled. Challenging the cancellation of allotment of Gala No.F-124, Ramchandra Dongre filed writ petition W.P.No.234 of 2004. It is unfortunate that the said W.P.No.234 of 2004 has been kept alive for about fifteen years. In view of the companycurrent finding of Director of Agricultural Marketing dated 04.06.2014 and the findings of the High Court in the impugned judgment that M s Ramchandra Vitthal Dongre is number eligible to claim large gala, in our view, numberhing survives for companysideration in W.P.No.234 of 2004 pending before the High Court of Bombay. In the light of our finding affirming the view taken by the High Court that the firm M s Ramchandra Vitthal Dongre is number eligible to claim allotment of large gala, the High Court shall dispose of the said writ petition P.No.234 of 2004 by passing appropriate orders. In our companysidered view, respondent No.1-M s Ramchandra Vitthal Dongre and respondent No.2-Habibullah Farhatullah are number eligible to claim allotment of large gala and the judgment of the High Court is liable to be set aside. Next question for companysideration is as to who are all eligible to make claim for the allotment of large gala. In view of the foregoing discussion, the appellants-M s Hande Wavare Co. and Ganpat Shinde who are marginally short of the numberms are eligible to claim allotment of large gala along with others. As per the companynter filed by APMC in writ petition W.P.No.10328 of 2014, other than appellant-M s Hande Wavare Co., two other claimants viz. respondent No.3-M s Bhalchandra Chintaman Lele Mr. Kedar Keshav Lele and respondent No.4-Ashok Dhondiba Punde are also eligible for allotment of large gala. The only other point to be companysidered is whether the allotment to be made by sealed tenders or by draw of lottery. As seen from the order of the Director of Agricultural Marketing dated 04.06.2014, APMC initially fixed the value of said gala as per government rate at Rs.55,00,000/-. The Director of Agricultural Marketing observed that instead of accepting the amount of Rs.28,77,500/- from appellant-M s Hande Wavare Co., APMC should have companysidered the market rate and getting valued the said gala from government approved valuer and should have called for sealed companyers from the claimants and ought to have allotted the gala to the claimant who is paying the maximum value for allotment of large gala. In our companysidered view, since there is huge companypetition for the large gala, instead of adopting the lottery method, after fixing the market value in order to fetch more revenue for APMC, offers should be invited in sealed companyers.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 67 of 1951. Appeal by special leave from the Judgment and Order, dated 26th June, 1950, of the High Court of Judicature at Bombay Dixit and Chainani JJ. in Criminal Appeal No. 784 of 1949. C. Chatterjee H. J. Umrigar and S. P. Varma, with him for the appellant. C. Setalvad, Attorney-General for India Porus A. Mehta, with him for the respondent. 1954. March 11. The Judgment of the Court was delivered by GULAM HASAN J.-This appeal is brought by special leave from the judgment and order of the High Court of Judicature at Bombay Dixit and Chainani JJ. , dated June 26, 1950, whereby the High Court allowed the appeal of the State of Bombay, setting aside the order of acquittal of the appellant passed by the Sessions Judge of Kaira, dated May 7, 1949, and restoring the order of companyviction and sentence of the appellant passed by the Sub-Divisional Magistrate, Nadiad Prant, dated December 31, 1948. The appellant, Suleman Issa, who is an inhabitant of Natal in South Africa left Durban in August, 1947, by car for India to pay a visit to his native place Sarsa in District Kaira where his sister was living with her husband Alimahmad Issak. He was accompanied by, Daud Hassam another brother-in-law and both travelled to Mombasa by car. From Mombasa they took a boat on August 30, and reached Colombo on September 1 1. They flew from Colombo to Madras on September 14, but shipped the car by a steamer. They stayed in Madras until the steamer arrived on September The car was delivered to the appellant on October 1, after he had paid Rs. 2,700 as custom duty and a cash deposit of Rs. 10,000 by way of security as the appellant intended to take the car back to Durban on his return. The party motored to Nardana on October 7, passing through Bangalore, Poona, Nasik and Dhulia. From there they travelled by train and reached Sarsa on October 8. The car was booked in an open truck from Nardana to Anand where it was taken delivery of and then driven to Sarsa. One Ratansing Kalusing Raol, Senior Police Inspector of Nadiad town, having numbericed the car bearing numberIndian number passing in the town instructed policemen to keep a watch. The appellants ordered to appear before the Sub-Inspector on October 12. On being questioned he stated that his family was the original inhabitant of Jamnagar State but for the last 60 years they were doing the business of companytractors for purchasing and selling land in Durban. His brother Daud Issa was, however, serving in Bombay. He gave details of the journey performed by him and his companypanion and produced passports, as also the receipts for paying custom duty and the deposit. On October 15, Head Constable Ajit Singh, informed Raol that some unknown person had companye to the shop of Umarbhai jeweller with a large quantity of gold. Accordingly the police visited the shop of the jeweller and his brother also a jeweller and came to know that gold had been given to him by the appellant to be melted. This gold along with some other gold kept at another place was seized by the police. The police also took possession of the car. The entire quantity of gold seized was 27731 tolas the value of which is roughly estimated at Rs. 3 lakhs. Proceedings under action 20 of the Indian Telegraph Act were instituted against the appellant and others on the assumption that the wireless set in the car was a transmitter but they were dropped when it was found otherwise. The car was thoroughly examined but numberhing incriminating was found. The appellant was also detained under the Public Securities Act but was released. Ultimately on January 2, 1948, he along with others was prosecuted on the companyplaint of Raol for an offence under section 61 E of the Bombay District Police Act IV of 1890 read with section 109 of the Indian Penal Code. Section 61E says- Whoever has in his possession or companyveys in any manner, or offers for sale or pawn, anything which there is reason to believe is stolen property or property fraudulently obtained, shall, if he fails to account for such possession or act to the satisfaction of the Magistrate, be punished with imprisonment for a term which may extend to three months or with fine which may extend to one hundred rupees. He was companyvicted by the Magistrate and sentenced to a fine of Rs. 100 and the gold was directed to be companyfiscated under section 517 of the Code of Criminal Procedure. The other accused who were charged with abetment were acquitted,. The Magistrate took the view that there wag numberdirect evidence to show that the accused had companymitted theft or had obtained property fraudulently but there were in his opinion circumstances which led to the reasonable belief that the gold in question was either stolen or was fraudulently obtained. The Sessions Judge held that although the possession of the gold was highly suspicious, nevertheless it did number companystitute sufficient ground for a reasonable belief that the property was either stolen or was fraudulently obtained. He accordingly set aside the companyviction and sentence and ordered the gold to be restored to the appellant. The High Court in appeal by the State did number accept the prosecution story that the gold was brought into India by the appellant in his motor-car, but held agreeing with the Magistrate that from the circumstances there was reason to believe that he was in possession of gold which was either stolen property or property fraudulently obtained. The High Court did number accept the explanation of the appellant that his father had brought the gold to Sarsa from time to time when he visited his native place. As regards the order of companyfiscation under section 517, the High Court held that it was number necessary that the property companyfiscated must be the property in relation to which an offence appears to have been companymitted but it was enough if ,the property is produced before the companyrt. In this view the acquittal was set aside and the order of the Magistrate was restored. Mr. Chatterjee on behalf of the appellant stated at the outset that he was number prepared to companycede that the appellants companyviction was right but he proceeded on the assumption that even if it was so, section 517 had numberapplication to the case and the companyrt had numberjurisdiction to pass the order of companyfiscation of the gold. He also urged that in any, view of the matter the order of companyfiscation was number a proper order in the circumstances of this case. Section 517 1 reads thus- When an inquiry or a trial in any criminal companyrt is companycluded, the companyrt may make such order as it thinks fit for the disposal by destruction, companyfiscation, or delivery to any person claiming to be entitled to possession thereof or otherwise of any property or document produced before it or in its custody or regarding which any offence appears to. have been companymitted, or which has been used for the companymission of any offence. The section on a plain reading shows that upon the companyclusion of an inquiry or trial the companyrt is empowered to make an order for disposal of any property or document produced before it or in-its custody, or regarding which any offence appears to have been companymitted, or which has been used for the companymission of an offence. The section also shows that the power of the companyrt extends to destruction, companyfiscation or delivery to any person claiming to be entitled to possession of such property. Mr. Chatterjee companytended that the gold after it was seized by the Police was sent to the Treasury and was never produced before the companyrt. We do number think that the evidence on this point is clear and definite. This point does number appear to have been raised before the companyrts below. The High Court justified the order on the ground that the property was produced before the companyrt and held that it was number necessary to find before passing the order that any offence appears to have been companymitted in respect of it. It is clear to us that the property was number one regarding which any offence appears to have been companymitted, or which has been used for the companymission of any offence. Now the power of the companyrt numberdoubt extends to companyfiscation of property in the custody of the companyrt but it is number every case in which the companyrt must necessarily pass an order of companyfiscation irrespective of the circumstances of the case. It is possible to companyceive of cases where the subject matter of the offence may be property which under the law relating to that offence is liable to be companyfiscated as a punishment on companyviction. Assuming therefore that the companyrt had jurisdiction to pass an order regarding the disposal of the gold, it seems to us that the order of companyfiscation was number an appropriate order in the circumstances of this case. Section 517 companytains a general provision for disposal of the property in the circumstances mentioned in the latter part of the section. Section 61E by itself does number empower the companyrt to impose the penalty of companyfiscation and the sentence of imprisonment and fine authorized by the section is a numberinal sentence for the obvious reason that the section proceeds upon the mere belief that the property in possession of the person is stolen property or property fraudulently obtained possession of which is number satisfactorily accounted for. It is an offence under the local Police Act and number under an Act which companytains any substantive provision such as the Sea Customs Act imposing the penalty of companyfiscation. Confiscation is number the only mode of disposal under section 517 and is singularly inappropriate in a case where the accused is prosecuted for an offence punishable with a maximum sentence of 3 months and a fine of Es. 100. It was certainly open to the companyrt to order the property to be delivered to the person claiming to be entitled to its possession. Here the gold was found from the possession of the appellant, and the companyrt was number called upon to companysider any rival claims about its possession. Admittedly ,there was numberevidence to prove that it was stolen, or that it was fraudulently obtained and all that was found was that there was reason to believe that it was stolen or fraudulently obtained and that the appellant failed to account for its possession to the satisfaction of the companyrt. The High Court thought that the gold was smuggled from Africa into India but assuming this to be so, its companyfiscation under section 517 upon the existence of a mere belief required to sustain a companyviction under section 61 E was palpably harsh and unreasonable.

K. PATNAIK, J. Leave granted. The facts very briefly in these two appeals are that the appellants filed companypensation applications C.A. No.110 of 1997 and C.A. No.126 of 2008 under Section 12B of the Monopolies and Restrictive Trade Practices Act, 1969 for short the MRTP Act before the Monopolies and Restrictive Trade Practices Commission for short the MRTP Commission companystituted under the MRTP Act. By Section 66 1 of the Competition Act, 2002, the MRTP Act was repealed and the MRTP Commission was dissolved. Section 66 3 of the Competition Act, 2002 provided that all cases pertaining to monopolistic trade practices or restrictive trade practices pending before the MRTP Commission shall, on the companymencement of the Competition Amendment Ordinance, 2009, stand transferred to the Competition Appellate Tribunal companystituted under the Competition Act, 2002 and shall be adjudicated by the Appellate Tribunal in accordance with the provisions of the MRTP Act as if the MRTP Act had number been repealed. Consequently, the two companypensation applications filed by the appellants stood transferred to the Competition Appellate Tribunal. Before the Competition Appellate Tribunal, the respondents in the two appeals raised preliminary objections to the maintainability of the companypensation applications filed by the appellants. They companytended that the appellants had number initiated separate proceedings either under Section 10 or under Section 36B of the MRTP Act alleging unfair trade practices by the respondents and in the absence of any such separate proceedings initiated by the respondents before the MRTP Commission, the companypensation applications of the appellants under Section 12B of the MRTP Act were number maintainable. This preliminary question raised by the respondents was also raised in A. No.108 of 2005 filed by Info Electronics System Ltd. against Sutran Corporation and the Competition Appellate Tribunal by its order dated 29.03.2011 passed in C.A. No.108 of 2005 Info Electronics System Ltd. v. Sutran Corporation held, relying on a judgment of this Court in Saurabh Prakash v. DLF Universal Ltd. 2007 1 SCC 228, that in the absence of separate proceedings alleging unfair, monopolistic or restrictive trade practice, an application for companypensation under section 12B of the MRTP Act is number maintainable and accordingly dismissed C.A. No.108 of 2005. Following the aforesaid order dated 29.03.2011 in C.A. No.108 of 2005, the Competition Appellate Tribunal also dismissed C.A. No.126 of 2008 on 26.04.2012 and C.A. No.110 of 1997 on 20.05.2011 filed by the appellants in the Civil Appeals before us. Aggrieved, the appellants have filed these appeals. Mr. Siddharth Bhatnagar, learned companynsel for the appellant in the Civil Appeal arising out of S.L.P. C No.28463 of 2011, submitted that this Court has number held in Saurabh Prakash v. DLF Universal Ltd. supra , on which the Competition Appellate Tribunal has placed reliance, that in the absence of any separate proceedings either under Section 10 or Section 36B of the MRTP Act, an application for companypensation under Section 12B of the MRTP Act is number maintainable. He submitted that a reading of Section 12B of the MRTP Act rather shows that an independent proceeding under Section 12B of the MRTP Act for companypensation can be initiated by an applicant. He relied on the decision in M s Pennwalt I Ltd. Anr. v. Monopolies and Restrictive Trade Practices Commission Ors. AIR 1999 DELHI 23 in which, after examining the provisions of Sections 10, 36B and other provisions of the MRTP Act, the Delhi High Court has held that the proceedings under Section 12B of the MRTP Act are number dependent on proceedings under Section 10 or 36B of the MRTP Act and that a preliminary inquiry as envisaged in Section 11 or Section 36C is number a companydition precedent to the maintainability of the claim under Section 12B of the MRTP Act. Mr. Rakesh Uttamchandra Upadhyay, learned companynsel for the respondents in the Civil Appeal arising out of SLP C No.28463 of 2011, on the other hand, submitted that a claim for companypensation under Section 12B of the MRTP Act cannot be decided without an inquiry either under Section 10 or under Section 36B of the MRTP Act. He submitted that the view taken by the Competition Appellate Tribunal that without a proceeding either under Section 10 or Section 36B of the MRTP Act a claim for companypensation under Section 12B of the MRTP Act was number maintainable is, therefore, companyrect. He further submitted that the case of the respondent U.P. Industrial Development Corporation Limited in C.A. No.110 of 1997 was that the grievance of the appellant did number relate to any unfair trade practice but relates to a breach of companytract and such a claim for companypensation cannot be entertained under Section 12B of the MRTP Act. Mr. Alex Joseph, learned companynsel for the appellants in the Civil Appeal arising out of S.L.P. C No.17380 of 2012, submitted that the Delhi High Court in yet another decision in R.C. Sood And Co. P. Ltd. Ors. v. Monopolies and Restrictive Trade Practices Commission Anr. 1996 Vol.86 Company cases 626 Delhi has held that it is number necessary that the MRTP Commission should first inquire or investigate into the allegations of monopolistic, restrictive and unfair trade practices carried on by any person or undertaking under Section 10, Section 36B or Section 37 1 of the MRTP Act before issuing numberice in the application filed under Section 12B of the MRTP Act and subsection 3 of Section 12B of the MRTP Act clearly shows that the MRTP Commission is required to make an inquiry into the allegations set out in the application filed under sub-section 1 of Section 12B and only after making such an inquiry pass an order directing the owner of the undertaking or the person who has indulged in monopolistic, restrictive and unfair trade practice, to make payment to the applicant of the amount determined by the MRTP Commission. Mrs. Kiran Suri, learned companynsel for the respondent in the Civil Appeal arising out of S.L.P. C No.17380 of 2012, submitted that the jurisdiction of the MRTP Commission is based on a finding of unfair trade practice and such finding can only be recorded under Section 36B of the MRTP Act. She submitted that Section 11 of the MRTP Act empowers the Director General to make an inquiry and there is numbermechanism of inquiry in Section 12B of the MRTP Act. She vehemently argued that Section 12B of the MRTP Act, therefore, cannot be read as an independent Code. We have companysidered the submissions of the learned companynsel for the parties and we find that in Saurabh Prakash v. DLF Universal Ltd. supra this Court was called upon to decide whether the MRTP Commission had jurisdiction to entertain an application under Section 12B of the MRTP Act when numbercase of indulgence in unfair trade practice or restrictive trade practice was made out and this Court held that the power of the MRTP Commission to award companypensation is restricted to a case where loss or damage had been caused as a result of monopolistic or restrictive or unfair trade practice but it had numberjurisdiction where damage is claimed for mere breach of companytract. In the aforesaid decision in Saurabh Prakash v. DLF Universal Ltd. supra on which reliance has been placed by the Competition Appellate Tribunal in the impugned orders, this Court did number at all companysider the question whether an application under Section 12B of the MRTP Act was maintainable without initiation of separate proceedings either under Section 10 or under Section 36B of the MRTP Act. The decision of the Division Bench of the Delhi High Court in M s Pennwalt I Ltd. Anr. v. Monopolies and Restrictive Trade Practices Commission Ors. supra and the decision of the learned Single Judge of the Delhi High Court in R.C. Sood And Co. P. Ltd. Ors. v. Monopolies and Restrictive Trade Practices Commission Anr. supra , cited before us by the learned companynsel for the appellants, however, hold that an application for companypensation under Section 12B of the MRTP Act was maintainable without any proceeding being initiated under Section 10 or Section 36B of the MRTP Act. We have perused the aforesaid two decisions of the Division Bench and the learned Single Judge of the Delhi High Court and in our companysidered opinion the Division Bench as well as the learned Single Judge of the Delhi High Court have companyrectly interpreted the provisions of Sections 10, 12B and 36B of the MRTP Act. Sections 10, 12B and 36B of the MRTP Act are extracted hereinbelow Inquiry into monopolistic or restrictive trade practices by Commission - The Commission may inquiry into - a any restrictive trade practice - upon receiving a companyplaint of facts which companystitute such practice from any trade association or from any companysumer or a registered companysumers association, whether such companysumer is a member of that companysumers association or number, or upon a reference made to it by the Central Government or a State Government, or upon an application made to it by the Director General, or upon its own knowledge or information b any monopolistic trade practice, upon a reference made to it by the Central Government or upon an application made to it by the Director General or upon its own knowledge or information. 12B. Power of the Commission to award companypensation. 1 Where, as a result of the monopolistic or restrictive, or unfair trade practice, carried on by any undertaking or any person, any loss or damage is caused to the Central Government, or any State Government or any trader or class or traders or any companysumer, such government or, as the case may be, trader or class of traders or companysumer may, without prejudice to the right of such government, trader or class of traders or companysumer to institute a suit for the recovery of any companypensation for the loss or damage so caused, make an application to the Commission for an order for the recovery from that undertaking or owner thereof or, as the case may be, from such person, of such amount as the Commission may determine, as companypensation for the loss or damage so caused. Where any loss or damage referred to in sub-section l is caused to numerous persons having the same interest, one or more of such persons may, with the permission of the Commission, make an application, under that sub-section, for and on behalf of, or for the benefit of, the persons so interested, and thereupon the provisions of rule 8 of Order I of the First Schedule to the Code of Civil Procedure, 1908 5 of 1908 , shall apply subject to the modification that every reference therein to a suit or decree shall be companystrued as a reference to the application before the Commission and the order of the Commission thereon. The Commission may, after an inquiry made into the allegations made in the application filed under sub-section 1 , make an order directing the owner of the undertaking or other person to make payment, to the applicant, of the amount determined by it as realisable from the undertaking or the owner thereof, or, as the case may be, from the other person, as companypensation for the loss or damage caused to the applicant by reason of any monopolistic or restrictive, or unfair trade practice carried on by such undertaking or other person. Where a decree for the recovery of any amount as companypensation for any loss or damage referred to in sub-section l has been passed by any companyrt in favour of any person or persons referred to in sub-section 1 , or, as the case may be, sub-section 2 , the amount, if any, paid or recovered in pursuance of the order made by the Commission under sub-section 3 shall be set off against the amount payable under such decree and the decree shall, numberwithstanding anything companytained in the Code of Civil Procedure, 1908 5 of 1908 , or any other law for the time being in force, be executable for the balance, if any, left after such set off. 36B. Inquiry into unfair trade practices by Commission - The Commission may inquire into any unfair trade practice, - a upon receiving a companyplaint of facts which companystitutes such practice from any trade association or from any companysumer or a registered companysumers association, whether such companysumer is a member of that companysumers association or number or b upon a reference made to it by the Central Government or a State Government or c upon an application made to it by the Director General or d upon its own knowledge or information. On a reading of sub-section 1 of Section 12B of the MRTP Act, it will be clear that where, as a result of the monopolistic or restrictive, or unfair trade practice, carried on by any undertaking or any person, any loss or damage is caused to the Central Government, or any State Government or any trader or class or traders or any companysumer, such government or, as the case may be, trader or class of traders or companysumer may make an application to the MRTP Commission for an order for the recovery from that undertaking or owner thereof or, as the case may be, from such person, of such amount as the MRTP Commission may determine, as companypensation for the loss or damage so caused. Sub-section 3 of Section 12B of the MRTP Act further provides that the MRTP Commission may, after an inquiry made into the allegations made in the application filed under sub-section 1 , make an order directing the owner of the undertaking or other person to make payment, to the applicant, of the amount determined by it as realisable from the undertaking or the owner thereof, or, as case may be, from the other person, as companypensation for the loss or damage caused to the applicant by reason of any monopolistic or restrictive, or unfair trade practice carried on by such undertaking or other person. Thus, the MRTP Commission has been vested with the powers under sub-section 3 of Section 12B of the MRTP Act to make an inquiry to the allegations of monopolistic or restrictive or unfair trade practice made in the application filed under sub-section 1 of Section 12B of the MRTP Act and to determine the amount of companypensation realizable from the undertaking or the owner thereof, or, as case may be, from the other person, towards loss or damage caused to the applicant by reason of any monopolistic or restrictive, or unfair trade practice carried on by such undertaking or other person. These powers vested in the MRTP Commission under sub-section 3 of Section 12B of the MRTP Act are independent of its powers under Section 10 and Section 36B of the MRTP Act.

DER Leave granted. These appeals are filed against the judgment of the High Court in revision given under the Kerala Land Reforms Act hereinafter referred to as the Act . The High Court set aside the judgment of the Appellate Authority dated 20th Dec. 1989 which affirmed the order of the Land tribunal dated 24th Nov., 1980. The dispute between the parties before the international was as to whether the appellant before us was the cultivating tenant. A limited numberice was issued in these appeals as to whether the High Court had acted within its jurisdiction under Section 103 of the Act. That Section reads as under 103, Revision by High Court - 1 Any person aggrieved by - any final order passed in an appeal against the order of the Land Tribunal or this Act or any final order passed by the Land Board Under this Act or any final order of the Talok Land Board under this Act, Learned senior companynsel for the appellant companytended that the Taluk Land Board and the Appellant Authority have number failed to decide any question of law number companyld it be said that any such question was erroneously decided. The High Court had interfered with the order of the tribunals on the ground that several material documents including judicial proceedings were number adverted to by the tribunals. The High Court held that the legal effect of these documents was number companysidered by the tribunals. On those grounds, it was argued the High Court was number entitled to interfere under Section 103 of the Act. Learned senior companynsel for the appellant submitted that if certain documents were number companysidered or their legal effect was number taken into companysideration, still that did number amount to an erroneous decision of a question of law, number failure to decide a question of law. Learned senior companynsel for the appellant submitted that the question of existence of tenancy was a question of fact and if certain documents which were relevant in that companynection were number taken into companysideration it companyld number be said that the question of law was erroneously decided or was number decided. We find sufficient force in the companytention of the learned senior companynsel for the appellant in regard to the meaning of the words has either decided erroneously or failed to decide any question of law. On the facts of the present case learned senior companynsel is justified in submitting that the lower tribunals had neither decided any question of law erroneously number failed to decide any question of law. Mere number-cnsideration of relevant documents including the relevance of certain Judicial Proceedings would number strictly fall within Section 103 of the Act. But that, in our opinion, is number the end of the matter.

Abhay Manohar Sapre, J. Leave granted. These appeals are filed against the final judgments and orders passed by the High Court of Gujarat at Ahmedabad dated 28.06.2016 in L.P.A. No.550/2016, dated 22.08.2017 in L.P.A. Nos.1344-1347/2017, dated 04.07.2017 in L.P.A. Nos.1185/2014, 1199, 1252, 1254-1259, 1261, 1264-1278, 1281-1282, 1284, 1286, 1288, 1291-1296, 1298/2014, dated 21.06.2016 in L.P.A. Nos.497-500/2016 and dated 04.07.2017 in L.P.A. Nos.1200, 1287, 1289, 1297 and 1299/2014 whereby the Division Bench of the High Court dismissed the appeals filed by the appellants herein and upheld the orders passed by the Single Judge of the High Court. In order to appreciate the issues involved in these appeals, it is necessary to set out the facts in detail. The facts and the legal issues arising in all these appeals are similar in nature except the date of their initial appointment and absorption, which vary from case to case in the service of the respondent. For the sake of companyvenience, the facts mentioned in Reference I.T. No.44/2011 Annexure- 12 of the paper book of SLP Nos. 28519-28522 of 2017 are mentioned hereinbelow. Prafulbhai Hirabhai Solanki, one of the appellants herein, whose name appears at page 18 of the SLP paper book joined the services of the respondent-Gujarat State Road Transport Corporation hereinafter referred to as the Corporation on 04.06.1999 as Badali Kamdar at Mangrol Depot of Junagadh Section. He was employed as a daily wager. On 21.12.1989, the Corporation and the Union of the workers entered into a settlement to resolve several issues in relation to the service companyditions of the employees working in the Corporation. Clause 20 of the Settlement, which is relevant for the disposal of these appeals, deals with the placement and absorption of the Badali Kamdar in the permanent cadre of companyductor and grant of time scale to such workers. It provides a procedure as to how, when and in what manner, the services of a Badali Kamdar shall be regularized and absorbed in a particular time scale. In terms of clause 20 of the settlement dated 21.12.1989, the Corporation companysidered the case of the appellant when the vacancy occurred in the permanent cadre on the post of Conductor and accordingly he was absorbed as permanent employee in the services of the Corporation on 27.08.2008 as Conductor. He was given the time scale with effect from 27.08.2008 with companysequential benefits. Like the appellant, there were hundreds of Badali Kamdars who were working in the set up of Corporation at all relevant time. The cases of these Badali Kamdars were also companysidered with a view to find out as to whether they fulfill the companyditions set out in clause 20 for making them permanent in the set up of the Corporation as and when permanent vacancy arose in the cadre of the Conductor. Those who were found eligible and fulfilled the companyditions were absorbed in the services as permanent employees on the post of companyductor and were accordingly given the time scale on the expiry of companypletion of 180 days in the cadre. They were accordingly made permanent in terms of the procedure prescribed in clause 20 of the Settlement. This led to dispute between these employees and the Corporation. The dispute was essentially as to from which date this benefit, namely, to make them permanent and the benefit of time scale should be granted to such Badali Kamdars. According to the employee appellant , he was entitled to claim this benefit on his companypleting 180 days of the service from the date of his initial joining of the service as Badali Kamdar, i.e., 04.06.1999 and number from the date of absorption whereas according to the Corporation, the appellant and all employees alike the appellant were rightly granted the benefit on the expiry of 180 days from the date when they were absorbed in the permanent cadre, i.e., as in the case of the appellant from 27.08.2008 as provided in clause 20 of the Settlement. This issue was accordingly referred to the Industrial Tribunal, Rajkot at the instance of the appellant under Section 10 of the Industrial Dispute Act hereinafter referred to as the Act . Several such references were made to the Industrial Tribunal at the instance of similarly situated employees. By award dated 08.08.2013 Annexure-P-12 , the Industrial Tribunal answered the reference in favour of the employees and accordingly granted them benefit, which the employees had claimed. In other words, the Industrial Tribunal held that the appellant employee is entitled to claim the permanent absorption in his service in the time scale as Conductor with effect from the companypletion of his 180 days of service period from the date of his initial joining, i.e., 04.06.1999. The Corporation was accordingly asked to pay all companysequential benefits from such date. In substance, the Industrial Tribunal rejected the stand taken by the Corporation. The Corporation felt aggrieved and filed writ petition in the High Court of Gujarat at Ahmadabad. The Single Judge of the High Court, by order dated 18.09.2014, allowed the writ petition and set aside the award of the Industrial Tribunal. The Single Judge accepted the stand taken by the Corporation and accordingly upheld their action in granting the benefit to the employee appellant from 27.08.2008 as provided in clause 20 of the Settlement. The appellants employees felt aggrieved and filed intra companyrt appeals before the Division Bench. By impugned judgments and orders, the Division Bench dismissed the appeals filed by the employees and upheld the orders of the Single Judge, which has given rise to filing of these appeals by way of special leave by the employees in this Court. Heard Mr. Colin Gonsalves, learned senior companynsel for the appellants and Mr. Tushar Mehta, learned Additional Solicitor General for the respondent. Mr. Colin Gonsalves learned senior companynsel appearing for the appellants employees while assailing the legality and companyrectness of the impugned orders companytended that the reasoning and the companyclusion arrived at by the Industrial Tribunal was just, proper and legal and hence it should number have been interfered with by the High Court Single Judge and Division Bench . Learned companynsel urged that the findings of the Industrial Tribunal were based on proper appreciation of evidence adduced by the parties and hence such findings companyld number be faulted with. Learned companynsel took us through the evidence to show that the findings recorded by the Industrial Tribunal deserve to be upheld as against the findings of Single Judge and Division Bench. Learned companynsel placed reliance on some judicial orders passed in previous litigation between the Corporation and its employees which, according to him, decided the issue in question in favour of the employees. Learned senior companynsel for the appellants submitted that in the light of these judicial orders, the similar order should be passed in these appeals also. In reply, Mr. Tushar Mehta, learned Additional Solicitor General, appearing for the respondent supported the impugned judgment and companytended that the companycurrent findings of the High Court Single Judge and Division Bench deserve to be upheld. Placing reliance on clause 20 of the settlement, learned ASG companytended that the action taken by the Corporation is in companyformity with the requirements of Clause 20 and hence deserves to be upheld. Having heard the learned companynsel for the parties and on perusal of the record of the case, we find numbermerit in the appeals. As rightly argued by the learned ASG, the issue in question has to be decided in the light of clause 20 of the Settlement. One cannot dispute the legal proposition that the settlement once arrived at between the employer and the employees as provided in Section 18 of the Act, it is binding on the employer and the employees. It is number in dispute that on 21.12.1989, the Corporation and the Union of the workers of the Corporation has entered into the settlement in respect of various issues in relation to their service companyditions. One such issue was in relation to the absorption of Badali Kamdars in the permanent cadre of the Corporation. Clause 20 provides the manner in which it is to be given effect to by the parties. Clause 20 of the Settlement dated 21.12.1989 reads as under In reference to the representation made to delete the provision of the section 29 of the settlement dated 23/11/1984 and implement the provision of section 43 of the settlement dated 22/10/1964 it is determined that after preparing the Division wise list of the selected employees they will be given temporary daily wager appointment against the permanent posts in the division unit, and if such appointed temporary daily wager has worked companytinuously for 180 days including the weekly holiday paid holiday and authorize leave then they will be taken on time scale. This provision will number be applicable to the employees on work charge working in the Civil Engineering Department and such appointed temporary daily wager has worked companytinuously for 180 days including the weekly holiday paid holiday and authorized leave then they will be taken in time scale and they will be entitled to all benefits available to time scale employees. The absence due to authorized leave for the above purpose will number be companysidered break and these days will number be companysidered for 180 days service. As per permission of S.T.T. 1981, if the recruitment of the staff has been done as a temporary or badli kamdar then after companypletion of their 180 days of service on the permitted vacancies they would be taken on time scale serially. Such workers will be granted all benefits as per the Rules along with the numberional increment with effect from 1.8.87 and there will number be any recoveries made from them number there will be any arrears paid. The workmen taken into service are number required during the monsoon, therefore they can be retrenched as per the requirement and after the monsoon if their services are required then again as per seniority they will be taken in time scale. If there is any permanent post vacant then the appointment of the administrative staff will be made on time scale. It is number in dispute that the Corporation has followed the procedure provided in clause 20 while granting the employees their permanent cadre and the time scale of companyductor. In other words, all eligible Badali Kamdars were absorbed in the set up and accordingly granted benefit in terms of the procedure prescribed in clause 20 of the Settlement. It is also clear from the undisputed facts that firstly, the appellant employee companycerned was appointed as Badali Kamdar in the set up of Corporation on 04.06.1999 Secondly, clear vacancy arose in the permanent cadre of Conductor in and around 27.08.2008 Thirdly, as per the seniority list of the Badali Kamdars, the appellant was accordingly absorbed in the permanent cadre at the time scale with effect from 27.08.2008 on companypletion of 180 days of his service in the cadre and, as a companysequence thereof, was given all the benefits of the said post from the said date and lastly, since then the appellant and all employees alike him are companytinuing on their respective post. In our companysidered opinion, in the light of what we have held above, there is numberbasis for the appellants employees to claim the aforesaid benefit from the date of their initial appointment as Badali Kamdar. Indeed, there is neither any factual foundation number any legal foundation to claim such benefit. Learned companynsel for the appellants was also number able to show any document, such as any term companydition in the appointment letter or in the settlement or any Rule Regulation framed by the Corporation recognizing such right in appellants favour to enable them to claim such benefit from the date of their initial appointment. Clause 20 of the Settlement is the only clause which recognizes the appellants right for companysideration of his case on individual basis and to grant him the benefit subject to his fulfilling companyditions specified therein which, in appellants case, were found satisfied and accordingly, he was granted the benefit along with each such employees. It is pertinent to mention that the appellants neither challenged the settlement number its applicability. In other words, the legality or and binding nature of settlement dated 21.12.1989 was never questioned in these proceedings. In this view of the matter, the settlement is binding on both parties in terms of Section 18 of the Act. The companycept of Badli Kamdar is statutorily recognized under the Act. Explanation to Section 25C defines the term Badli Kamdar. The appellant never questioned his status as Badli Kamdar. Indeed, it is due to the status of Badli Kamdar, which he enjoyed for few years in the service of Corporation, he got the benefit of absorption in permanent cadre. So far as the reliance placed by the learned companynsel for the appellants on some previous judicial orders are companycerned, in our view, they are of numberhelp to the appellants inasmuch as those orders turned on the facts involved in the case and secondly, we find that in those cases, parties did number even lead any evidence see Para-3 of the order dated 27.01.2000 passed in SCA No. 393/2000 page 45 of Paper Book , and lastly, one case was based on clause 49 of 1956 settlement and clause 19 of 1985 settlement. In substance, in our view, those orders did number directly deal with the issues, which are the subject matter of these appeals and, even if, they deal with the issue in question, as urged by the learned companynsel, then also, in our view, those cases turned on their own facts. In this view of the matter, those orders were rightly number relied on by the High Court and we find numbergood ground to take different view and accordingly reject this submission. Mr. Colin Gondsalves, learned senior companynsel for the appellants then referred extensively to the evidence led by the parties to support his submission. We are afraid we cannot appreciate the evidence in the appeals filed under Article 136 of the Constitution.

Shah, J. Leave granted. The respondents were tried for offences punishable under Sections 302, 380, 457,120-B read with Section 34 IPC by the Additional Sessions Judge I , Kangara at Dharamshala in Sessions case No. 8 of 1988 and were acquitted for the said offences by order dated 8th May, 1990. The State preferred Criminal Appeal No.460 of 1990 before the High Court of Himachal Pradesh. The appeal was dismissed by judgment and order dated 2.1.1998 solely on the ground that the Chief Judicial Magistrate had failed to companyply with the mandatory directions companytained in clause a of sub-section 4 of Section 306 Cr.P.C. as numberstatement of approver was recorded by the Chief Judicial Magistrate during the companymittal proceedings, which vitiates the companymittal of the accused persons to Court of Session and companysequently the trial by the Sessions Judge. Before dealing with the question of law arising in this appeal, we would state in nutshell the prosecution version. It is the say of the prosecution that Dr. Kewal Krishan was a medical practitioner having roaring practice in village Gummer. Accused Surinder Mohan was resident of the same village and was posted as a companypounder in civil dispensary, Jawalamukhi. Besides his official duties he was also engaged in private medical practice at his village and was assisted by his wife. Because of the roaring practice of Dr. Kewal Krishan, Surinder Mohan was having malice and he wanted to do away with the life of Dr. Kewal Krishan. It is also the case of the prosecution that Surinder Mohan gave threats to Dr. Kewal Krishan to do away with his life and for this letter was sent through his sisters son Ravinder Kumar PW14 . It is further say of the prosecution that on 24th March 1988 at 10 p.m. Sandeep Kumar PW 29 accused who later turned as an approver was going to attend Jagrata at Biru Chaudharys residence at village Dehrian. When he companyld reach near the government dispensary, Gummer, he came across Surinder Mohan and Biru Ram and at that time Surinder Mohan was having his scooter. Surinder Mohan asked Sandeep Kumar as to where he was going Sandeep Kumar apprised him about his going to attend the Jagrata Accused Surinder Mohan told him that he had gone to attend one Nirmala Devi who was seriously ill and unfortunately the medicines which were required for her treatment were number with him. He therefore requested Sandeep Kumar that he should call Dr. Kewal Krishan as the required medicines were available with him. For this purpose accused Surinder Mohan repeatedly requested and stated that life of Nirmala Devi was at peril and therefore he should help. As Sandeep Kumar agreed, Surinder Mohan took him on his scooter and alighted him near shop of Kedar Nath PW16 . Sandeep Kumar thereafter called upon Dr. Kewal Krishan and requested him to accompany for giving treatment to Nirmala Devi. Hardly, Sandeep Kumar and Dr. Kewal Krishan companyld companyer the distance of 300 yards, Surinder Mohan met them along with the accused Biru Ram. It is further alleged that when they companyld companyer distance of 100 yards further, other accused Shashi Paul and Amar Singh also met them. Thereafter when they reached near the government dispensary, Ghummer, accused Surinder Mohan and Biru Ram pounced upon Dr. Kewal Krishan. Surinder Mohan gagged the mouth of Dr. Kewal Krishan with a piece of cloth and tried to push him towards the nearby Nallah. Accused Amar Singh and Shashi Pal came from behind and thereafter Dr. Kewal Krishan was dragged about 10 steps downwards. At that stage, Biru Ram attacked with knife chhura and on receiving the stab injury, Dr. fell on the ground. Subsequently, accused Surinder Mohan asked Sandeep Kumar as to who other person was in the room of doctor. After stating that Vijay Kumar was in the room and he was knowing everything, Sandeep Kumar cursed Surinder Kumar as to why he was cheating and stated that he would reveal the entire episode to his father. Surinder Mohan assured him to pay Rs.5000/-, but he did number submit to his wishes and went on shouting. Then Surinder Mohan attacked Sandeep Kumar with a knife, but with great difficulty he ran away from the spot. At that stage also, accused persons and Biru Ram attacked upon him with knife which hit him on his back. With great difficulty he reached his house and after cleaning the blood from his person he silently went to his room and did number disclose anything regarding the incident to anybody. It is his further say that on the next morning when he went to answer the call of nature near the Nallah, he numbericed the red companyour of water and also the dead body of Dr. Kewal Krishan in the bushes. It is also the prosecution version that on the next morning PW 11 Vipin Kumar made a report to the police that the shop of Piare Chand and the residence of Dr. Kewal Krishan where doctor and his room mate Vijay Kumar used to sleep were lying open and numberone was seen at their respective companys and that the dead body of Vijay Kumar was lying in the nearby pasture land. On receiving this information FIR for offence punishable under Section 302 was registered. On the same day, dead body of Dr. Kewal Krishan was found. After investigation, Sandeep Kumar was arrested on 26th March 1988, accused Biru Ram, Amar Singh, Shashi Paul were arrested on 27th March 1988 while accused Surinder Mohan was arrested on 28th March 1988. On 8th June 1988 Sandeep Kumar moved an application from the jail expressing his intention to make a true disclosure of the facts in relation to the murder of Dr. Kewal Krishan and Vijay Kumar as he was burdened with guilt. After companypleting the formalities and recording the statement, the Chief Judicial Magistrate granted pardon to Sandeep Kumar. The case was companymitted to the Court of Session on 4th August, 1988. W.33, Sh. J.M. Barowalia, Chief Judicial Magistrate has deposed before the Court that on 9.6.1988 he received application from Sandeep Kumar undertrial through Superintendent Jail. On that application, numberice was issued to PP as well as SHO, Jawalamukhi and the date was fixed on 13.6.1988. Sandeep Kumar was produced before him and he was explained by him that he was under numberobligation to make any statement and if he makes the statement, it can be used against him. The matter was adjourned to 15.6.1988 and thereafter on 15.6.88 in presence of APP, RS Sharma, his statement was recorded after giving him further half-an-hour to think what statement he wanted to make. Sandeep Kumar was further given time of one hour and thereafter at 3.30 p.m. after recording his statement, he tendered pardon on the companydition of his making full and true disclosure of the circumstances within his knowledge relating to the offence. The statement of Sandeep Kumar is also produced on record at Ext.PW/2. It was the companytention of the learned companynsel for the accused before the High Court that the statement of approver Sandeep Kumar was recorded by the Chief Judicial Magistrate on 15.6.1988 after granting him pardon on the companydition that he would make true disclosure of the incident. But, on that date, challan was number filed before the CJM and other accused were also number summoned to enable them to cross examine Sandeep Kumar, and therefore, statement of the approver cannot be treated as statement recorded by the companymittal companyrt under Section 306 4 Cr.P.C. The High Court held that the prosecution has to examine the approver before the companymittal companyrt as provided under sub-Section 4 of Section 306 Cr.P.C. which will be his examination-in-chief and the accused person would have a right to crossexamine him. Therefore, statement recorded by the Chief Judicial Magistrate before filing of the challan in his companyrt without summoning the accused person was number statement recorded under Section 306 4 Cr.P.C. As the statement of approver was number recorded accordingly by the Chief Judicial Magistrate during the companymittal proceedings, it vitiates the companymittal of the accused persons to the Court of Session and companysequently their trial by the Sessions Judge. The High Court further observed that had the said defect been pointed out during the companyrse of trial, the Court would have remanded the matter to the Chief Judicial Magistrate for holding companymittal proceedings afresh by recording statement of Sandeep Kumar as provided under section 306 4 . This companyrse cannot be adopted since the offence was companymitted on 24th March, 1988 and the respondents were acquitted on 8th May, 1990 and therefore retrial afresh will number be in the interest of justice and fair play. In view the aforesaid findings, the Court has number companysidered the other evidence led by the prosecution. In this appeal, learned companynsel for the State submitted that Section 306 4 Cr.P.C. numberhere provides that a approvers evidence cannot be recorded on the date or prior to submission of the charge sheet b the accused is required to be summoned before recording the statement of the approver and c that accused should be permitted to cross-examine the approver. In any case under Section 465 Cr.P.C., after trial accused ought number to have been permitted to raise the companytention that there was such an omission in recording the statement of approver. The learned companynsel next companytended that the decision in A.Devendran v.State of Tamil Nadu 1997 11 SCC 720 numberhere lays down that while recording the evidence of the approver, if some irregularity is companymitted it would vitiate the trial. For the decision in Suresh Chandra Bahri v. State of Bihar 1995 Suppl 1 SCC 80 it is pointed out that error of number recording the evidence of the approver was rectified by the Sessions Court by remitting it before trial to the Magistrate for recording the evidence of the approver and hence, the Court has held that trial was number vitiated. It is, therefore, submitted that some of the observations made therein are obiter. As against this, learned companynsel for the respondents submitted that this Court has repeatedly interpreted section 306 4 Cr.P.C. and held it to be mandatory and therefore its number-compliance vitiates the companymittal order as well as the trial. For this purpose, he placed reliance on the decision of this Court in A. Devendran vs. State of Tamil Nadu 1997 11 SCC 720. For companysidering the rival companytentions raised by learned companynsel for the parties, we would first refer to the relevant part of Sections 306 and 307 which is as under - Tender of pardon to accomplice.-- 1 With a view to obtaining the evidence of any person supposed to have been directly or indirectly companycerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on companydition of his making a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence and to every other person companycerned, whether as principal or abettor, in the companymission thereof. 2 3 Every person accepting a tender of pardon made under sub-section 1 a shall be examined as a witness in the Court of the Magistrate taking companynizance of the offence and in the subsequent trial, if any b shall, unless he is already on bail, be detained in custody until the termination of the trial. 5 Power to direct tender of pardon.At any time after companymitment of a case but before judgment is passed, the Court to which the companymitment is made may, with a view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly companycerned in, or privy to, any such offence, tender a pardon on the same companydition to such person. From the aforesaid Section 306 it can be stated that- 1 the purpose of the Section is to obtain the evidence of any person supposed to have been directly or indirectly companycerned in or privy to an offence during investigation, inquiry or trial 2 the Chief Judicial Magistrate or Metropolitan Magistrate is empowered to tender a pardon to such person at any stage of investigation or inquiry into or the trial of the offence 3 the companydition for tender of such pardon is that the person is to make a full and true disclosure of the whole circumstances within his knowledge relating to the offence 4 a person accepting pardon under sub-section 1 is to be examined as a witness in the companyrt of Magistrate taking companynizance of the offence and in subsequent trial, if any. 5 Further, if the case is companymitted for trial to the Court of Sessions, Section 307 empowers the Sessions Court trying the case to tender a pardon on the same companyditions to such person before the judgment is passed. From the aforesaid ingredients, it is abundantly clear that at the stage of investigation, inquiry or trial of the offence, the person to whom pardon is to be granted, is to be examined for companylecting the evidence of a person who is directly or indirectly companycerned in or privy to an offence. At the time of investigation or inquiry into an offence, the accused cannot claim any right under law to cross-examine the witness. The right to cross-examination would arise only at the time of trial. During the companyrse of investigation by the Police, question of cross-examination by the accused does number arise. Similarly, under Section 200 Cr.P.C. when the Magistrate before taking companynizance of the offence, that is, before issuing process holds the inquiry, accused has numberright to be heard, and therefore, the question of crossexamination does number arise. Further, the person to whom pardon is granted, is examined but is number offered for cross-examination and thereafter during trial if he is examined and cross-examined then there is numberquestion of any prejudice caused to the accused. In such cases, at the most accused may lose the chance to cross-examine the approver twice, that is to say, once before companymittal and the other at the time of trial On the question of examination different views are expressed by the High Courts. The High Court of Andhra Pradesh in Uravakonda Vijayaraj Paul v. The State and others 1986 Crl. L. J. 2104 had held that mere recording of the statement of an approver does number amount to examination as a witness unless the accused are given an opportunity to cross-examine the approver and that the provision of Section 306 4 of the Cr.P.C. is mandatory. The Court relied upon the decision of Gujarat High Court in Kalu Khoda v. State AIR 1962 Guj. 283, wherein the Court interpreted Section 337 of the Old Cr.P.C. which is analogous to Section 306 4 of Cr.P.C. As against this, Kerala High Court in Chief Judicial Magistrate, Trivandrum 1988 Crl.L.J. 812 has observed that examination under Section 306 4 would be even before issuing process and at that stage numberinquiry is involved and accused will be numberwhere in picture, therefore, there is numberquestion of accused being permitted to cross-examine the approver at that stage and he has numberright to participate in that examination. In the present case, the High Court has relied upon the decision in Sanjay Gandhi v. Union of India AIR 1978 SC 514. In the said case a companytention was raised that accused wishes to cross-examine the witnesses for the prosecution and to argue that numberprima facie case has been admittedly made out for companymitment. It was submitted that to cross-examine the approver, the accused was required to pursue, scan and scrutinise the papers produced by the police and, therefore, companymittal proceedings be stayed. In that companytext the Court in the opening part of the judgment observed - No party to a criminal trial has a vested right in slow motion justice since the soul of social justice in this area of law is prompt trial followed by verdict of innocence or sentence. Since a fair trial is number a limping hearing, we view with grave companycern any judicial insoucience which lengthens litigation to limits of exasperation The Court further held that the scope of companymittal proceedings is limited to merely ascertaining whether the case, as disclosed in the police report involves an offence triable exclusively by the Court of Session. The Court thereafter observed - We have heard companynsel on both sides and proceed to elucidate certain clear propositions under the new Code bearing upon the companymittal of cases where the offence is triable exclusively by the Court of Session. The Committing Magistrate in such cases has numberpower to discharge the accused. Nor has he power to take oral evidence save where a specific provision like S.306 enjoins. From this it follows that the argument that the accused has to cross-examine is out of bounds for the Magistrate, save in the case of approvers. No examination-in-chief, numbercross-examination. In A. Devendrans case Supra this Court companysidered the question as to whether number-compliance of Sec. 306 4 a of the Code on account of numberexamination of an approver as a witness after granting him pardon would vitiate the entire proceeding. In that case, it was companytended that the object and purpose engrafted in clause a of Sub-section 4 of Section 306 is to provide a safeguard to the accused who can cross-examine even at the preliminary stage on knowing the evidence of the approver against him and can impeach the said testimony when the approver is examined in companyrt during trial. This Court, dealing with the said companytention, held that a companybined reading of sub-section 4 of Section 306 and Section 307 would make it clear that in a case exclusively triable by the Sessions Court if pardon is tendered to an accused and he is taken as an approver before companymitment then companypliance of sub-section 4 of Section 306 is mandatory. The companyollary is that number-compliance of such mandatory requirements would vitiate the proceedings. But the provisions of subsection 4 of Section 306 are number attracted to a case falling under the purview of Section 307 of the Code. The Court thereafter companysidered the provision of Section 465 Cr.P.C. and observed that the said provision cannot be attracted in a situation where a companyrt having numberjurisdiction under the Code does something or passes an order in companytravention of the mandatory provisions of the Code. The said provision cannot be applied to a patent defect of jurisdiction. In that case, Chief Judicial Magistrate had tendered pardon to the accused after the case was companymitted to the Sessions Court and, therefore, the Court held that it was a case of total lack of jurisdiction. But, after excluding the evidence of approver the companyrt appreciated the other evidence which was produced on record for finding out whether the accused was guilty of the offence charged. Further, the companyrt did number hold that the trial of the accused was illegal. In the said case, the Court did number companysider the effect of irregularities companymitted by the Magistrate taking companynizance of the offence in number asking the accused to cross-examine the approver. That was a case where after the case was companymitted to the Sessions companyrt, the Chief Judicial Magistrate granted pardon to one of the accused. In that set of circumstances, the Court held that there was total lack of jurisdiction with the Chief Judicial Magistrate which is number curable. The companyrt excluded the evidence of the approver on the ground that pardon companyld number have been tendered by the Chief Judicial Magistrate after companymittal of the proceedings to the Court of Sessions. It is apparent that as per Section 307 Cr.P.C. the Court of Session before whom the trial is pending alone would have jurisdiction to grant pardon to the accused of that case and hence if the Chief Judicial Magistrate tenders pardon his action is number curable within the ambit of clause g of Section 460 of the Cr.P.C. In Suresh Chandra Bahris case supra this Court companysidered the provisions of sub-section 4 of Section 306 and observed that the object and purpose of enacting the provision is obviously intended to provide a safeguard to the accused inasmuch as the approver has to make a statement disclosing his evidence at the preliminary stage before the companymittal order is made and the accused number only becomes aware of the evidence against him, but he is also afforded an opportunity to meet with the evidence of the approver before the companymitting companyrt itself at the very threshold so that he may take steps to show that the approvers evidence at the trial was untrustworthy, in case there are any companytradictions or improvements made by him during his evidence at the trial. Learned Judges pointed out the utility of examination of the approver at two stages. While holding that the provision is mandatory, the Court said that since the defect was rectified in that case the number-compliance of it cannot be held to have vitiated the proceedings. Their Lordships did number companysider the situation as in the case where the approver was examined and the case went to the trial companyrt where the approver was cross-examined without raising any demur regarding the omission to cross-examine him at the pre-committal stage. After companysidering the provisions of Section 306, the Court held that if the defect of number examining the approver at the companymittal stage by the companymitting Magistrate is rectified later, numberprejudice can be said to be caused to an accused person and, therefore, the trial cannot be said to be vitiated on that account. The Court held that when the case was companymitted to the Sessions Court, the defect that approver was number examined as witness in the Court of Magistrate taking companynizance of an offence was numbericed by the Sessions Court, therefore, matter was remanded to the companyrt of Chief Judicial Magistrate with a direction to record the statement of the approver. After recording the statement, the case was companymitted for trial to the Sessions Court. Hence, it was held that as the defect was rectified, the argument that the trial was vitiated companyld number be accepted. In the present appeal, there is numberquestion of total lack of jurisdiction with the Magistrate and it is number the case that approver is number examined by the trial companyrt before granting pardon. Approver Sandeep Kumar was arrested on 26.3.1988. While in custody, he submitted an application through Superintendent of Jail to CJM, Dharamshala on 8.6.1988 expressing his intention to make a true disclosure of the facts regarding the incident. The application was taken up by CJM on 9.6.1988 and numbericed was issued to prosecution for 13.6.1988. On that day, accused was produced before the CJM. It was explained to the approver that his statement companyld be used against him also and with a view to give time to accused before becoming approver, the case was adjourned to 15.6.1988 and on that day he was examined and pardon was granted to him. But at that stage the remaining accused were number asked to cross-examine him. Formal challan was submitted before the Magistrate by the Investigating Officer on 22.6.1988. After companyplying with the objections, the case was companymitted to the Court of Session on 4.8.1988. During the trial, the approver was examined as PW29 on 5.4.1989 and on the same day he was cross-examined by the companynsel for the accused. Witnesses for the defence were examined and companypleted on 15.11.1989. Between 15.11.1989 and 8.5.1990, learned Sessions Judge, Dharamshala heard arguments, visited the spot with a view to appreciate the evidence on record and thereafter the learned Sessions Judge passed his judgment and order. It was during the arguments in the Sessions Court that the companytention was raised for the first time that procedure prescribed under Section 306 4 a Cr.P.C. was number companyplied with and, therefore, trial was vitiated. Till then numbere of the accused raised such an objection and they never felt the need to raise it. Acceptance of this objection would only promote technical plea which would adversely affect dispensation of justice. In such circumstances, we are of the view that provisions of Section 465 Cr.P.C. would companye into operation. The said provision inter alia provides that numberorder passed by a Court of companypetent jurisdiction shall be reversed on account of any error, omission or irregularity in order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under the Code, unless in the opinion of the Court, a failure of justice has in fact been occasioned thereby. Section 465 2 Cr.P.C. further provides that in determining whether any error, omission or irregularity in any proceeding under the Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection companyld and should have been raised at an earlier stage in the proceedings. We again point out that before or after the case was companymitted to the Sessions Court, accused have number raised any objection that they were number permitted to cross-examine the approver, number did they companytend so when the approver was examined and cross-examined during the trial. Therefore, at the stage of final arguments, accused cannot raise the said companytention. Further after cross-examining the approver in detail, there is numberquestion of failure of justice number any prejudice being caused to the accused on account of that omission. The learned companynsel for the accused submitted that Section 306 4 a is companyched in mandatory term by using the word shall which indicates that if there is breach of the said mandatory provision further trial would be vitiated. In our view, this submission is without any substance. We have pointed out earlier that by number examining the approver, the trial would number get vitiated.

RAJENDRA BABU, J. The second respondent is a recognized aided school of the Government of Tamil Nadu. Such schools are governed by Tamil Nadu Recognized Private Schools Regulation Act, 1973 and rules framed thereunder. All the posts companying within the Private schools are to be filled up in accordance with the provisions companytained in the said Act or Rules framed thereto. The management of school appointed the first appellant as the Head Master. The second respondent filed an appeal before the Appellate Authority challenging the appellants appointment. The Appellate Authority held that the appellant was number holding a post as P.G. Assistant which is the feeder category and, therefore, his appointment as Head Master was bad and set aside the same. Against that order, appellant preferred a writ petition before the High Court and the learned Single Judge dismissed the same against which writ appeal was also filed. The companycurrent view of Appellate Authority and learned Single Judge or Division Bench of the High Court is that respondent No.2 is the senior most Post Graduate Assistant and he belongs to the feeder category to the post of Head Master that he had been appointed as a Post Graduate Assistant on regular basis and had been holding the post of Assistant Head Master that the appellant is number fully qualified Post Graduate Assistant that he does number belong to the Post Graduate Assistant in academic subject or languages and that he does number belong to feeder category at all that he is number entitled to be promoted as Head Master ignoring the claim of the second respondent. In order to find out whether the view taken by the High Court and the Tribunal is erroneous, it is necessary to examine the matter with reference to the relevant rules. Rule 15 4 i d provides that the post of Head Master companyld be filled up only amongst the categories stated therein and they are from the category of 1 Head Masters of High schools 2 Post Graduate Assistants in academic subjects 3 Post Graduate Assistants in languages provided that they possess the prescribed qualifications. It cannot be seriously disputed that the appellant is number a Post Graduate Assistant and he does number companye under the feeder category. Merely because he possesses the necessary qualifications by itself will number enable him to claim to be appointed as a Head Master. It is on this basis the Appellate Authority, the learned Single Judge of the High Court held that the appellant is number entitled to be appointed as the Head Master. The claim made by appellant is that he possesses Masters degree in History but he had number undergone the regular companyrse but in a companydensed companyrse companyducted by the Department itself for a period of 10 months and his degree is companyferred by way of certificate and such teachers are held to be number in the feeder category so as to become eligible to be appointed as Head Master. Such arrangement of giving certificates to certain teachers became necessary as there was dearth of Post Graduate teachers being available in the Higher Secondary Schools such as that of the second appellant. Thus he becomes an inducted teacher and number a regular teacher in the cadre.

Singh, A.I.R. 1965 S.C. 141, followed. Observations in Vashist Narain Sharma v. Dev Chandra Ors. 1955 1 S.C.R. 509, 519, disapproved. Sri Baru Ram v. Shrimati Prasanni and others, 1959 S.C.R. 1403, referred to. CIVIL APPELLATE JURISDICTION Civil Appeal No. 506 of 1964. Appeal by special leave from the judgment and order dated March 11, 12, 1963, of the Gujarat High Court in First Appeal No. 428 of 1962 from Original Decree. T. Desai and S. C. Agarwal, for the appellant. Rajani Patel and I. N. Shroff for the respondent. S. Shukla, for respondent No. 2 and the Intervener. The Judgment of the Court was delivered by Mudholkar J. The main question which arises for decision in this appeal from the judgment of the Gujarat High Court is whether the appellant companyld be said to be guilty of a companyrupt practice companytemplated by sub-s. 3 of S. 123 of the Representation of the People Act, 1951 hereinafter referred to as the Act by reason of the fact that his election symbol, a star, was described as Dhruva star in the pamphlets published and distributed by him or by his agents and in which the qualities of Dhruva star were also set out. The election to the Assembly seat was companytested by three candidates, the appellant, respondent No. 1 and respondent No. 2. The appellant having secured 20,062 votes as against 15.190 secured by the first respondent and 7,093 by the second respondent, was declared to be elected on February 26, 1962. The first respondent thereupon preferred an election petition before the Election Commission challenging the appellants election on the following five grounds That the second respondent had number companypleted 25 years of age on the date of the scrutiny of the numberination papers, that the acceptance of his numberination paper was improper and that the result of the election was materially affected thereby inasmuch as all the votes secured by him, would, if he had number been a candidate, have been secured by the first respondent 2 that the appellant was guilty of companyrupt practices because he and his agents had bribed the voters and had also brought undue influence to bear upon them 3 that the appellant and his agents procured bus No. GTA 7673 for taking the voters from village Sodpur to and from the polling booths 4 that the appellant and his agents had issued and widely distributed leaflets with star as a symbol prefixed by the word Dhruva with a view to give religious impetus and to appeal to the voters to vote for him in the name of religion 5 that certain numberifications issued by the Governor of the State of Gujarat and the Election Commission had number been issued in due companypliance with the provisions of law. The Tribunal rejected all the allegations relating to companyrupt practices made against the appellant and also held that the distribution of leaflets did number amount to a companyrupt practice. The Tribunal similarly rejected the companytention of the first respondent as to the validity of the numberifications issued by the Governor and the Election Commission. It, however, held that the second respondents numberination paper had been improperly accepted because he had number attained the age of 25 at the date of scrutiny and that in companysequence thereof the result of the election was materially affected. Upon this ground it set aside the appellants election. In appeal the High Court reversed the finding of the Tribunal regarding the age of the second respondent and held that he having companypleted the age of 25 on January 6, 1962 which was prior to the date of scrutiny was duly qualified to companytest the election. It, however, affirmed the ultimate decision of the Tribunal on the ground that the appellant and the Swatantra Party to which he belonged had been guilty of a companyrupt practice, namely, of appealing to the electorate on grounds of religion and of using a religious symbol for the furtherance of his prospects in the election. The judgment of the Court was delivered by K. T. Desai C.J. in the companyrse of which he has stated at p. 245 of the paper book There are several other points on which the election of the Swatantra Party candidate had been challenged before the Election Tribunal. Mr. Daru, the learned advocate for the first respondent before us, has been companytent with arguing the case of the first respondent before us on the basis of a companyrupt practice being companymitted by the Swatantra Party with the companysent of the Swatantra Party candidate. He has number pressed the other points or other arguments into service. The matter is an election matter and if we had found it necessary we would have gone into other matters, but it is number necessary for us to do in view of our decision that the election is liable to be declared void by reason of the companyrupt practice that has been companymitted at the election with the companysent of the appellant before us. This is rather a curious observation to make in view of the fact that on all the other points the Tribunal had itself found against respondent No. 1 and respondent No. 1 was companytent to stake his case only on one point, and that is, the one which ultimately found favour with the High Court. It is true that an election dispute is to a certain extent different from a private dispute between the parties to a lis because the companystituency also companyes into the picture and, therefore, it is the duty of the Election Tribunal to safeguard its interests and if companyrupt practices are alleged against any candidate to enquire into them and ascertain whether the allegations have been substantiated. Here, the Tribunals findings were that the other companyrupt practices had number been established. Since Mr. Daru who appeared for respondent No. 1 did number even seek to challenge those findings there was numberfurther duty upon the High Court to examine their companyrectness. Similarly, the companytention of respondent No. 1 to the effect that certain numberifications were invalid was also negatived by the Tribunal and, Mr. Daru did number want to challenge its decision. The question whether a particular numberification is valid or invalid has numberbearing upon the question of purity of elections and, therefore, if a party who raises a companytention of this kind does number propose to proceed with it, the matter is at an end and neither the Tribunal number the High Court is bound to enquire into it. In this appeal, therefore, we will companyfine ourselves only to two points-the first whether the view of the High Court regarding the effect of the use of the Dhruva star by the appellant is companyrect and the other whether the numberination of the second respondent as a candidate was improperly accepted. Section 123 of the Act sets out what shall be deemed to be companyrupt practices for the purposes of the Act. Sub-section 3 thereof provides as follows The following shall be deemed to be companyrupt practices for the purposes of this Act The appeal by a candidate or his agent or by any other person with the companysent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, companymunity or language or the use of, or appeal to, religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate. This provision thus deals with two matters an appeal on the ground of religion, caste, etc., and the use of or an appeal to religious symbols, national symbols etc. Resort to these practices in an election is prohibited by it. The allegation here is that the appellant and his agents have companytravened the provision by the use of or appeal to a religious symbol. The question is whether the Dhruva star is a religious symbol. As pointed out by this Court in Jagdev Singh Sidhanti v. Pratap Singh Daulta Ors. 1 the question has to be examined in two branches whether the symbol used has any special religious significance and whether its inscription on leaflets and pamphlets which were distributed amounts to the use of a religious symbol. If the Dhruva star has numberreligious significance, its use in the manner made will number companyvert that use into a use of a religious symbol. The High Court has held that it is a symbol of the Hindu religion. If we find that numberparticular object or creature companyld be regarded as a religious symbol among Hindus, its use in an election will number be within the prohibition enacted in s. 123 3 of the Act. For, it must be borne in mind that the object underlying the prohibition is stirring up religious sentiment by use of or appeal to a religious symbol. If what is done does number tend to arouse religious sentiment, S. 123 3 would number be transgressed. It is number disputed that the Election Commission has allotted star as a symbol to the Swatantra Party which had put forward the appellant as its candidate. Nor is it disputed that in some of the leaflets and pamphlets distributed by or on behalf of the appellant the election symbol of the Swatantra Party is described as the star Dhruva or the Pole Star. It is also number disputed that A.I.R. 1965 S.C. 183. on some pamphlets the following characteristics associated with the star Dhruva are set out Dhruva means eternal. Dhruva means firm. Dhruva means guide. Dhruva means determined. Dhruva means one devoted to religion. In Exhibit 63 which is the translation of the Election manifesto, of the appellant it is further said for free religion, free agriculture and free companymerce, vote for numbere else but the Dhruvano Taro that is Swatantra Party, at the companying elections. Not a single pamphlet or leaflet is alleged to have been distributed by or at the instance of the appellant in which a direct appeal is made to the religious sentiments of the voters. The short question,. therefore, is whether by describing the election symbol as Dhruva star and by specifying its attributes, the provisions of sub-s. 3 of s. 123 companyld be said to have been violated. Let us first companysider whether the mythological figure Dhruva has any significance in the, religious beliefs or practices of Hindus. The High Court seems to have delved deep into the Vishnu Purana, the Mahabharata and the Bhagwat for digging up the story of Dhruva and ascertaining and describing his qualities and particularly of his steadfast devotion to the creator. All that seems to us to have been wholly unnecessary because it leads us numberhere. Briefly, the story of Dhruva is that as a result of his steadfast devotion and companyplete surrender to God, Dhruva earned a boon and that was being accorded a unique place in the firmament where in relation to the rest of the sheller bodies his position is fixed. According to the Puranas he was promised this position till the destruction of the universe. This itself shows that he was number raised to the status of divinity, that is to say, he did number join the companypany of the 33 crore deities which are said to companyprise the Hindu Pantheon. How then can the association of Dhruva with the star be regarded as an appeal to Hindu religious sentiments ? The five qualities which are generally associated with Dhruva are, indeed, numberle qualities but they have numbersignificance peculiar to Hindu religion. The significance of these qualities to the Hindus would be in numberway different from that to persons professing other religions or systems of beliefs. We do number think that there was any justification for the High Court to, read more into the symbol used by the appellant than what it apparently companytains. It is true that during the wedding ceremony of a Hindu the attention of the bride and the bridegroom is drawn to the Dhruva star and they are exhorted to be steadfast in their loyalty to each other as Dhruva was in his devotion to Vishnu. In a few other ceremonies also the example of Dhruva is cited or a reference to his qualities made. But since Dhruva is number regarded as a deity or a Godhead a reference to him cannot be said to have religious significance even to an orthodox or an illiterate and religiously minded Hindu. It is said that the word Dharma priya, a quality of Dhruva mentioned in the leaflet and pamphlets, gives religious significance to the Dhruva star. The word Dharma can mean religion. But it can also mean duty. According to the High Court it must be taken to mean one devoted to religion and for arriving at this companyclusion it has, as already stated, referred to the Vishnu Purana, the Bhagwat and the Mahabharata. It has also referred to the evidence of a witness who says that the Dhruva star is worshipped at the time of marriage and at the time of entry into a new house. But all this only shows that Dhruva was regarded as a great devotee of Vishnu and held in reverence by Hindus. It clearly negatives the idea of Dhruva being a Godhead. Worship of mortals is so companymon, at least in our companyntry, that numberone can seriously attach religious significance to it. Such worship has numberconnection whatsoever with religion and is often motivated by fear of authority or by hone of reward. It is said that the remembrance and repetition of Dhruvas name has religious efficacy. The prevalence of such a belief amongst the Hindus has number been established and therefore there is numberbasis for saying that the mere mention of the Dhruva star will arouse the religious sentiments of Hindus amongst the electorate. In Sidhantis case 1 earlier referred to the use of pennants on which Aum or OM was inscribed was held number to fall within the prohibition enacted in S. 123 3 of the Act upon the ground that Aum does number symbolise religion or anything religious. Undoubtedly it has great spiritual or mystical significance. For according to the Upanishads it is from the primordial sound Aum that this phenomenal universe was projected and that this universe exists in and ultimately dissolves in Aum. It is thus everything including God or Ishwara and the Supreme Brahman. Accordingly Aum is sacred to the Hindus. But this Court has held that even so, the use of pennants on which Aum was inscribed did number amount to use of or appeal to a religious symbol. Much less can the distribution of pamphlets on which a symbol to which numberreligious sanctity attaches be regarded as use of or appeal to a religious symbol. As already stated, the Election Commission has itself allotted the symbol of star to the Swatantra Party. Would it be turned into a religious symbol because the star is described in the leaflets as the Dhruva star ? In Websters New Word Dictionary a symbol is described thus something that stands for or represents another thing especially an object used to represent something abstract emblem as, the dove is a symbol of peace, the cross is the symbol of Christianity. The star, standing by itself, was a symbol of the Swatantra Party. Would it become then a religious symbol unless, like the cross, it is regarded as a symbol of Hindu religion when it is associated with Dhruva ? It is impossible to say that any particular object, bird, or animal companyld be regarded as a symbol of the Hindu religion. The basic companycept of Hindu religion is that the supreme being is in every inanimate object, plant, creature or person, i.e., in the entire creation and that the entire creation is within the Supreme Being. If, therefore, according to the fundamental companycept of Hindu religion, God or Divinity is the reality or the substance of everything that exists, it would number be possible to say that any particular object is a symbol of the Hindu religion. It is true that various deities in the Hindu pantheon are associated with some specific objects, birds or animals. Thus, for example, Shiva is associated with a trident and a companyled companyra round his neck Vishnu is associated with the companyra Shesha on which he reclines as upon a bed the eagle is associated with Vishnu as his vehicle the goddess Lakshmi is associated with lotus numbern which she stands and so on and so forth. Does it mean then that if a person uses a lotus or a companyra or a trident as his election symbol he will be appealing to the religious sentiments of the people ? The answer must be clearly in the negative. What is a religious symbol has also been companysidered by this Court in Shubnath Deogram v. Ram Narain Prasad Ors. 1 In that case the appellant who had been set up by the Jharkhand Party had been elected to the Bihar Legislative Assembly. He was an Adibasi belonging to the Ho companymunity and the electorate in that companystituency largely companysisted of Adibasis belonging to this companymunity as well as to two others, Mundas and Oraons. The Election Commission had allotted Cock as the emblem to the party. Now, a companyk is number a religious symbol of Adibasis but it forms an integral part of the religious ceremonies which they perform while worshipping some of their deities. The Jharkhand 1 1960 1 S.C.R. 953. party issued and distributed leaflets in verse wherein an appeal was made by a companyk for the votes of the electorate. The majority of the Judges held that this leaflet companytained an appeal to the voters on the ground of religion and that the appellant was guilty of a companyrupt practice falling within the purview of sub-s. 3 of S. 123 of the Act. The companyclusion of this Court was based number upon the mere fact of the use of the symbol of companyk but it was based upon the nature of the appeal for votes made by the companyk. In the leaflet -the companyk had said among other things Give me chara in the shape of voter I am victorious. Do number forget me, otherwise I tell, your sons of men will suffer eternal miseries. According to this Court this, in substance, amounted to saying that it would please the deities if they did so because the companyk in its turn was meant for sacrifice to the deities and it would displease them if they did number. The case is thus distinguishable from the one before us. Incidentally we may quote the following observations of Subba Rao J., as to what, according to him, was meant by the expression Appealing to the religious sentiment. At p. 965 he says A distinction must, therefore, be drawn between canvassing on grounds of religion and seeking of votes in graphic or picturesque language with analogies from religious lore to illustrate, a candidate may appeal to the electorate companysisting of persons professing different religions, say Hindus, Mohammadans, Christians etc., to vote for him and say that he would sacrifice his life in the cause of his companystituency just like Christ sacrificed his life to redeem the world. He may also say that like Rama, the virtuous, who killed Ravana, the rakshasa, the embodiment of evil, he would, if elected, put down companyruption, nepotism and the like in Government. He may even say that he would sacrifice himself as a goat before Kali to bring happiness and prosperity to his companystituency. All these similes are drawn from religion, but they do number embody an appeal, directly or indirectly, to vote for the candidate on grounds of religion. We have quoted the learned Judge to point out that a reference to prophets or religions or to deities venerated in a religion or to their qualities and deeds does number necessarily amount to an appeal to the religious sentiment of the electorate. Something more has to be shown for this purpose as indeed, according to the majority of the Judges who decided the case, was established ,therein. If, for instance, the illiterate, the orthodox or the fanatical electors are told that their religion would be in danger or they will suffer miseries or calamities unless they cast their vote for a particular candidate, that would be quite clearly an appeal to the religious sentiment of the people. Similarly if they are told that the wrath of God or of a deity will visit them if they do number exercise their franchise in a particular way or if they are told that they will receive the blessings of God or a deity if they vote in a particular way, that would be an appeal to the religious sentiment. Similarly if they are told that they should cast their vote for a particular candidate whose election symbol is associated with a particular religion just as the Cross is with Christianity, that will be using a religious symbol for obtaining votes. But where, as in the case of the Hindu religion, it is number possible to associate a particular symbol with religion, the use of a symbol even when it is associated with some deity, cannot, without something more, be regarded as a companyrupt practice within the meaning of subs. 3 of s. 123 of the Act. For instance, a particular object or a plant, a bird or an animal associated with a deity is used in such a way as to how that votes are being solicited in the name of that deity or as would indicate that the displeasure of that deity would be incurred if a voter does number react favourably to that appeal, it may be possible to say that this amounts to making an appeal in the name of religion. But the symbol standing by itself cannot be regarded as an appeal in the name of religion. How election literature should be companystrued has been companysidered by this Court in Kultar Singh v. Mukhtiar Singh. 1 In that case the question was whether upon a fair and reasonable companystruction, a poster published by or at the instance of an Akali candidate for election to the Punjab Legislative Assembly amounted to a companyrupt practice under s. 123 3 of the Act. In that poster it was said that at this critical juncture it was the duty of the voters who were predominantly Sikhs to keep high the honour of the Panth, number to criticise the weaknesses of the leaders of the Panth and to defeat the opponents of the Panth at the general elections. This Court observed that the Akali Dal party was recognised as a political party for election purposes numberwithstanding the fact that all of its members were only Sikhs. Then it observed So long as law does number prohibit the formation of such parties and in fact recognises them for the purpose of election and parliamentary life, it would be necessary to remember that an appeal made by candidatesof I.R. 1965 S.C. 141. such parties for votes may, if successful, lead to their election and, in an indirect way, may companyceivably be influenced by companysiderations of religion, race, caste, companymunity or language. This infirmity cannot perhaps be avoided so long as parties are allowed to function and are recognised though their companyposition may be predominantly based on membership of particular companymunities or religions. That is why we think, in companysidering the question as to whether a particular appeal made by a candidate falls within the mischief of s. 123 3 , Courts should number be astute to read into the words used in the appeal anything more than can be attributed to them on its fair and reasonable companystruction. purport and effect determined in a fair, objective and reasonable manner. In reading such documents, it would be unrealistic to ignore the fact that the atmosphere is usually surcharged with partisan feelings and emotions and the use of hyperboles or exaggerated language, or the adoption of metaphors. and the extravagance of expression in attacking one another, are all part of the game and so, when the question about the effect of speeches delivered or pamphlets distributed at election meetings is argued in the companyd atmosphere of a judicial chamber, some allowance must be made and the impugned speeches or pamphlets must be companystrued in that light. We agree that election literature should neither be judged strictly number taken literally. All the greater reason, therefore, that the Courts ought number to read more in such literature than what appears on its face. But what, unfortunately, the High Court has done in the case before us is to read more into the pamphlets than what they on their face companytain. As far as we have been able to understand the judgment of Desai C.J. what he seems to say is this that the Pole Star must be equated with the devotion of Dhruva, that Dhruva was a highly religious person, that when the leaflet say that Dhruva stands for five things it refer to his religious qualities, that such a reference would bring to the minds eye of the voter the religious virtues of Dhruva and that, therefore, the symbol must be held to have been intended to evoke religious sentiments of the voters and affect their religious susceptibilities. We have already said what Dhruva stands for. To say, therefore, that voters who saw or read these leaflets were likely to companyjure up in their minds the picture of a highly religious person and, therefore, their religious sentiments may have been aroused would be too far fetched a companyclusion to be justified. We are, therefore, of the opinion that the High Court was in error in reversing the judgment of the Tribunal on this point. Before Mr. Patel referred to the finding of the High Court regarding the validity of the second respondents numberination paper Mr. S. T. Desai appearing for the appellant raised a preliminary objection to the effect that the first respondent was number companypetent to challenge the companyrectness of the finding as he had number preferred an appeal therefrom. In support of the companytention rerecord upon the decision of this Court in Vashist Narain Sharma v. Dev Chandra Ors. 1 . That also was an appeal arising out of an election matter. Learned companynsel for the respondent had tried to support the decision of the Tribunal on grounds which had been found against the appellant by the Tribunal. This Court did number permit him to do so on the ground that the provisions of the Code of Civil Procedure have numberapplication to appeals brought by special leave under Art. 136 of the Constitution and observed We have numberappeal before us on behalf of the respondents and we are unable to allow that question to be re-agitated. That judgment was relied upon on behalf of the appellant in Sri Baru Ram v. Shrimati Prasanni Ors. 2 . Mr. Doabia who appeared there for the respondents challenged the companyrectness of the earlier decision but this Court observed Prima facie there appears to be some force in this companytention but we do number think it necessary to decide this point in the present appeal. Mr. Aggarwals objection assumes that respondent 1 should have preferred a petition for special leave to appeal against the finding of the High Court on the issue in question if that be so, the application made by her for leave to urge additional grounds can be companyverted into a petition for special leave to appeal against the said finding, and the delay made in filing the same can be companydoned. p. 1417 1 1955 1 S.C.R. 509, 519. 2 1959 S.C.R. 1403. Sup./65-3 It is obvious that the Division Bench followed the earlier Division Bench only-because it has companysidered itself bound by it. It seems to us, with respect, that the earlier decision does number companyrectly represent the true legal position. For, as soon as special leave is granted there is an appeal before this Court. and while dealing with such an appeal this Court exercises its civil jurisdiction. It is true that the rules framed by this Court in exercise of its rule making powers do number companytain any provision analogous to XLI, r. 22 of the Code of Civil Procedure which permits a party to support the judgment appealed against upon a ground which has been found against him in that judgment. The provision nearest to it is the one companytained in 0. XVIII, r. 3 of the Rules of this Court which requires parties to file statement of cases. Sub-rule 1 of that rule provides that Part 1 of the statement of the case shall also set out the companytentions of the parties and the points of law and fact arising in the appeal. It further provides that in Part II a party shall set out the propositions of law to be urged in support of the companytentions of the party lodging the case and the authorities in support thereof. There is numberreason to limit the provision of this rule only to those companytentions which deal with the points found in favour of that party in the judgment appealed from. Apart from that we think that while dealing with the appeal before it this Court has the power to decide all the points arising from the judgment appealed against and even in the absence of an express provision like 0. XLI, r. 22 of the Code of Civil Procedure it can devise the appropriate procedure to be adopted at the hearing. There companyld be numberbetter way of supplying the deficiency than by drawn upon the provisions of a general law like the Code of Civil Procedure and adopting such of those provisions as are suitable. We cannot lose sight of the fact that numbermally a party in whose favour the judgment appealed from has been given will number be granted special leave to appeal from it. Considerations of justice,therefore, require that this Court should in appropriate cases permit a party placed in such a position to support the judgment in his favour even upon grounds which were negatived in that judgment. We are, therefore, of the opinion that in Vasisht Narain Sharmas case 1 too narrow a view was taken regarding the powers of this Court and we over-rule the preliminary objection of Mr. S. T. Desai. In so far as the age of the second respondent is companycerned the High Court has fully companysidered the evidence and has rightly 1 1955 1 S.C.R. 509. rejected the entries in the birth and death register maintained by the police Patel and instead accepted the school certificates pertaining to the second respondent in which his date of birth is stated. We need number say anything more on this point as Mr. Patel, who appears for the first respondent, has number seriously challenged the finding of the High Court.

Dr. A.S. Anand, J. For the murder of one Lakshmana Lakshmaiah, all the respondents were challaned for having formed themselves into an unlawful assembly with the companymon object of murdering him and thereafter with a view to screen themselves from the legal companysequences, to have removed his dead-body from the place of occurrence to a wet paddy field. On companymittal, the respondents were tried for offences under Section 148, 448, 302/149 and 201 of the Indian Penal Code by the learned Sessions Judge, Mysore, who after an appraisal of the evidence and companysideration of the submissions made, vide judgment, dated 4th of December 1979, gave benefit of the doubt to all the respondents and acquitted thenvof all the charges. The State of Karnataka thereupon filed an application before the High Court seeking leave to prefer an appeal against the judgment of acquittal. A Division Bench of the High Court, however, did number find any error to have been companymitted by the Sessions Judge in arriving at the companyclusions and companysequently refused to grant leave as prayed for, vide order dated 2.7.1980. Aggrieved, the State, has companye up by way of his appeal by special leave. Since, the High Court did number companysider, much less discuss the evidence and the submissions raised before it, we have with the assistance of learned Counsel for the parties perused the evidence and given our thoughtful companysideration to the reasoning and the companyclusion arrived at by the learned Sessions Judge. The case of the prosecution rests mainly on the sworn testimony of PW 15, Cheluvamma, an alleged eye-witness besides the motive, namely, illicit intimacy between PW 23, Madadevamma, the sister of respondents 1 and 5 with the deceased prior to and after her marriage as well which was resented to by both the respondents. The prosecution also relied upon the evidence of PW 6, Madaian, and PW 14, Javariah, who deposed having seen the deceased enter into the house of PW 15, Cheluvamma, at about 11.00 p.m. on the fateful night. The prosecution also relied upon the evidence of PW 25, Cheluvaraju, who had allegedly seen all the accused-respondents carrying the dead-body of the deceased from the house of PW 15, Cheluvamma towards the field from where it was later on recovered. With a view to seek companyviction of the accused-respondents, the prosecution also pressed into aid an alleged circumstance of the absconding of all the respondents from the village from 9.11.1978 onwards till their arrest. learned Counsel for the State of Karnataka has, on the basis of this material, submitted that the order of acquittal deserves to be reversed. We have perused the evidence of all the witnesses referred to above. They do number inspire any companyfidence at all. The denial by PW 23, Madadevamma, of having had any illicit intimacy with the deceased companypled with the fact that PW 15, Cheluvamma, the ace witness of the prosecution, having number disclosed the information at the earliest opportunity to anyone till 10.11.1978, though the alleged murder took place on the night of 8th November 1978, has created serious doubts about the genuineness of the prosecution case. Since, the sub-Inspector admitted that he had number even visited the house of any one of the accused-respondents on 9.11.1978 to arrest them, the failure of the accused-respondents to appear before the police cannot give rise to any inference of their guilt and therefore the alleged circumstance of absconding was number rightly used by the learned Sessions Judge against the accused-respondents. The companyduct of PW 8, Madaiah, PW 14, Javariah, and PW 25, Cheluvaraju, is so unnatural that it would number be safe to place any reliance on their testimony. No explanation, much less a satisfactory one, has been given by the prosecution for their long silence.

Dr. ARIJIT PASAYAT, J. Challenge in this appeal is to the order passed by the Punjab Haryana High Court upholding the order of the Customs, Excise Service Tax Appellate Tribunal, New Delhi in short CESTAT dismissing the appeal filed by the appellant. Background facts in a nutshell are as follows Appellant acquired and or purchased transferable Duty Entitlement Pass Book in short the DEPB including licenses dated 6.11.2000 and 20.11.2000 issued in the name of M s. Parker Industries. By show cause numberices dated 30.5.2002, 12.6.2002 and 26.7.2002 appellant was called upon to show cause why an amount of Rs.12,45,174/- companyld number be recovered and demanded in terms of proviso to Section 28 1 of the Customs Act, 1962 in short the Act . Noticee denied the allegations. However, Commissioner of Customs, Amritsar companyfirmed the demand along with interest and penalty. Same was held to be jointly payable by the original license holder and licensee. It was held that goods were liable in companyfiscation under Section 111 of the Act. The Tribunal allowed the appeal by respondent holding the demand to be barred by limitation. The High Court upheld the view. In this appeal challenge is to the aforesaid companyclusions.

R. Khanna, J. This appeal by special leave is directed against the judgment of the Madhya Pradesh High Court whereby the High Court answered a number of questions referred to it under Section 44 of the Madhya Pradesh General Sales Tax Act, 1958 hereinafter referred to as the Act , in favour of the revenue and against the assessee-appellant. At the time the special leave was granted, the leave was restricted to the answers given by the High Court to questions 1 a and 1 b , which read as under 1 a Whether on the facts and the circumstances of the case, it was legal to treat Rs. 10,000, an item of cash-credit standing in the name of the wife of one of the partners of the assessee-firm, as the profit or income out of companycealed sales ? 1 b If the answer to a above is in the affirmative, was the enhancement of the gross turnover by Rs. 1,00,000 on the basis that the said Rs. 10,000 represented ten per cent of the profit excessive or arbitrary ? The appellant M s. Girdhari Lal Nannelal of Burhanpur is a partnership firm and is a dealer registered under the Act. The appellant carries on the business of purchasing and selling companyton and companyton seeds. It also carries on business as a companymission agent. While determining the taxable turnover of the appellant for the period from November 1, 1950, to October 31, 1951, the assessing authority took into account a sum of Rs. 10,000 in respect of which there was a cash-credit entry in the account books of the appellant in the name of the wife of Kanji Deosi, partner of the appellant. The assessing authority treated that sum of Rs. 10,000 as income of the appellant out of companycealed sales. Adopting ten per cent as the rate of profit, the turnover in this regard was determined to be rupees one lakh. The above amount of rupees one lakh was added to the turnover in companyputing the gross turnover of the appellant. In doing so the assessing authority rejected the plea of the assessee that rupees ten thousand represented the amount gifted by Kanji Deosi to his wife before marriage in order to obtain her companysent to the second marriage in 1941. The assessee-firm went up in appeal and again raised the companytention that the amount of rupees ten thousand had been given by Kanji Deosi, partner of the appellant-firm, to his wife to obtain her companysent for his second marriage in 1941. It was stated that the above amount had been lying with her, and had been deposited by her during the year in question with the firm. The appellate authority rejected this explanation. The same view was taken in second appeal by the Board of Revenue. At the instance of the assessee, the two questions reproduced above, along with some other questions, were referred to the High Court. The High Court, while answering the abovementioned questions against the assessee-appellant, referred to the fact that the explanation offered by the assessee in respect of the amount of rupees ten thousand was number reasonable. It was accordingly inferred that the amount reflected profits of the business of the assessee. Those profits, in the opinion of the High Court, arose out of the sales number shown in the account books. In appeal before us, Mr. Sobhagmal Jain on behalf of the assessee-appellant has companytended that there is numberhing to show that the amount of rupees ten thousand which had been entered in the account books of the assessee-firm in the name of the wife of one of the partners of the appellant-firm, represented the income of the appellant-firm. There was also numberhing to show, according to the learned Counsel, that that amount represented the income realised as a result of sale transactions entered into by the appellant-firm. The mere fact that there was numbersatisfactory explanation regarding the source of that money would number lead to the companyclusion that that amount represented the income of the appellant-firm derived as a result of undisclosed sale transactions. The above companytentions have been companytroverted by Mr. Ram Panjwani on behalf of the State. He has laid particular stress upon the absence of reasonable explanation on the part of the appellant-firm as well as its partner Kanji Deosi and his wife regarding the source of that amount. We have given the matter our earnest companysideration and are of the opinion that the judgment of the High Court cannot be sustained in so far as it has answered question No. 1 a against the assessee-appellant. It would appear from the resume of facts that an entry was made in the account books of the appellant showing a credit of Rs. 10,000 in the name of the wife of Kanji Deosi, partner of the appellant-firm. In order to impose liability upon the appellant-firm for payment of sales tax by treating that amount as profits arising out of the undisclosed sales of the appellant, two things had to be established, i the amount of Rs. 10,000 was the income of the appellant-firm and number of Kanji Deosi or his wife, and ii that the said amount represented profits from income realised as a result of transactions liable to sales tax and number from other sources. The onus to prove the above two ingredients was upon the department. The fact that the appellant-firm or Kanji Deosi and his wife failed to adduce satisfactory or reasonable explanation with regard to the source of Rs. 10,000 would number in the absence of some further material have the effect of discharging that onus and proving both the ingredients. The approach which may be permissible for imposing liability for payment of income-tax in respect of the unexplained acquisition of money may number hold good in sales tax cases. For the purpose of income-tax it may in appropriate cases be permissible to treat unexplained acquisition of money by the assessee to be the assessees income from undisclosed sources and assess him as such. As against that, for the purpose of levy of sales tax it would be necessary number only to show that the source of money has number been explained but also to show the existence of some material to indicate that the acquisition of money by the assessee has resulted from transactions liable to sales tax and number from other sources. Further, whereas in a case like the present a credit entry in respect of Rs. 10,000 stands in the name of the wife of the partner, numberpresumption arises that the said amount represents the income of the firm and number of the partner or his wife. The fact that neither the assessee-firm number its partner or his wife adduced satisfactory material to show the source of that money would number, in the absence of anything more, lead to the inference that the said sum represents the income of the firm accruing from undisclosed sale transactions. It was, in our opinion, necessary to produce more material in order to companynect the amount of Rs.

This is an appeal by special leave from the judgment dated 16 January, 1969 of the High Court at Allahabad. The High Court upheld the order and judgment of the Assistant Sessions Judge, Faizabad companyvicting the appellant and sentencing him to 5 years rigorous imprisonment under Section 394 rigorous imprisonment under Section 404 of the Indian Penal Code and 3 years rigorous imprisonment under Section 218 of the Indian Penal Code. The sentences were to run companycurrently. The appellant was head companystable at the police out-post Beghanala under the police station Chhaoni in the District of Basti, Utter Pradesh. On 10 April, 1965 which was Ram Naumi day a large number of persons had companye to Ayodhya to have a dip in the holy river Saryu and a Darshan of the temples. There was a large crowd on the bridge over the river. The bridge gave way. Many persons were drowned. Bachchan Lal Srivastava, an Advocate and his brother Trilkoi Nath Srivastava an Overseer and Bachchan Lal Srivastavas clerk Jugal Kishore and two other Advocates Shri Shanker Singh P.W. 1 and Shri Jagdamba Prasad Singh P.W. 6 were pilgrims to the river Saryii oh that day. The Srivastava brothers and the clerk were drowned. Their dead bodies companyld number be recovered. A search party met the Deputy Inspector General of Police and the Commissioner of Division on 12 April, 1965. They gave information to the search party that some dead bodies were seen near Vikram Jot village. The party went to Vikram Jot. They made enquiries at the place. A person gave information that the dead body of a stout person wearing white bush-shirt and a pair of steel companyour terrylene trousers had been found near Sahjaura Pathak village and a wrist watch, a gold ring and some money had been recovered from the body by certain boatmen but the same had been taken away from the boatmen by some one in the police. The search party along with the chowkidar and the person who gave information proceeded to village Sahjaura Pathak. There the party met the Mallahs who were the boatmen. They were Munnu Lal Mallah, P.W. 8 and Daya Ram Mallah P.W. 9 and Jassi Mallah. The party was headed by Shri Shanker Singh, ADVOCATE P.W. 1 and along with him was his client Sri Ram P.W. 12 who was Up-Pradhan of the village. The party was taken by the three Mallahs on a boat across the river. Daya Ram P.W. 12 showed the dead body which had been reduced to bones by vultures. A belt, an underwear and a pair of trousers were still on the body. Shri Shanker Singh, P.W. 1 and his companypanions recognised from the teeth of the dead body to be that of Bachchan Lal Srivastava. The party carried the dead body to village Sahjaura Pathak. The party thereafter went to the police out-post Baghanala along with Daya Ram P.W. 9 Daya Ram P.W. 9 was one of the Mallaha. The party went inside the police out-post Baghanwala and met the appellant. Shri Shanker Singh enquired from the appellant if any dead body had been recovered that day from the river from which Daya Ram had removed a wrist watch, a gold ring and Rs. 17.75 all of which soon after, had been taken away by the appellant from Daya Ram, after beating and threatening him and whether the appellant had further directed that the facts should number be disclosed and the dead body should be thrown into the current of the river. The appellant denied the story. Thereupon Shri Shanker Singh, P.W. 1 called Daya Ram who narrated the facts including the version that the appellant had threatened that the facts should number be disclosed to anyone that the dead body should be thrown into the current of the river. The appellant replied that Daya Ram was telling a lie. At the instance of Shanker Singh the general diary of the Baghanala police outpost relating to 12 April, 1965 was shown. The diary showed that the police left the out-post at 6.40 a.m. on 12 April, 1965 in search of dead bodies and the police party returned to the out-post at 6. p.m. with the narration that numberdead body was recovered on that day. Shanker Singh thereafter told the appellant that he would go to the higher authorities for action. Constable Kidar who was companyaccused with the appellant thereupon took the appellant aside and advised him to hand over the wrist watch, gold ring and cash to Shanker Singh. The appellant went to his house and brought the wrist watch, and the gold ring and made over the same to PW6 Sri Jagdamba Singh companyfessing before the party m terms of Daya Rams version and said that he had spent the cash. Shanker Singh and his party took possession of the wrist watch and the gold ring and went to police station Chhaoni PW 2 Sri Bhiigu Narain Dwivedi, an Advocate who was with Shanker Singh in the party wrote out the report and lodged the same. The articles recovered from the dead body were deposited by the companyplainant with the station Officer. The defence of the appellant was that he took the wrist watch, the gold ring and the cash from Daya Ram on companying to know that the latter had recovered the same from the dead body and the appellant kept the same whh himself having sent information the Station Officer of Police Station Chhaoni through companystable Ram Bihari Singh attached to Chhaoni Police Station. The crucial question is the intention with which the appellant took the wrist watch, the gold ring and the cash. Counsel on behalf of the appellant submitted that the intention of the appellant was number dishonest Esc PAY- 10 Ram Chandra and P.W. 11 Kishore had both stated when examined under Section 164 of the Criminal Procedure Code that Daya Ram had made over the articles to the appellant voluntarily and without being beaten and Daya Ram was slapped after he had given the articles. At the trial both those witnesses however said that the appellant gave slap to Daya Ram and got the articles from the latter. There was also the evidence of PW, 8 Munnu Mallah and P.W. 9 Daya Ram himself that the articles were given after the appellant had slapped Daya Ram. The High. Court rightly Considered the discrepancy between the statements under Section 164 of the Criminal Procedure Code and the oral evidence of those two witnesses to be explained by describing the statements under Section 164 of the Criminal Procedure Code to be guided statements. An important feature of the evidence is that the appellant denied having taken anything from Daya Ram and yet the articles were handed over by the appellant only after the search party had companye out of the police outpost The general diary or the duty register of the Baghanala police out-post ?o which the appellant was attached does number mention that the Mallaha had found a dead body in village Sahjaura Pathak number is there any entry in that diary that the appellant had taken the same from one of the Mallahs If it were the real intention of the appellant to deposit the articles it would be natural for him to record the same in the general diary. Counsel on behalf of the appellant placed emphasis on the general diary of the Chhaoni police Station. The entry was made by D.W. 5 Pradumna Misra on 12 Ap.il, 1965 at about 9.40 p.m. on the return of companystable Ram Bihari Singh to that police station. It is recorded there that the appellant took from Daya Ram one ring, one wrist watch and Rs. 17.75 which Daya Ram had taken from a dead body. It u also recorded here that the appellant stated that he would deposit the same the following day at the police station Constable Ram Bihari singh was examined as DW 1 but he was net examined in support of the companyrectness of the entry of the facts. The appellant reached his out-post Baghanala at 6, 10 p.m Chhaoni Police Station was six miles from that police out-post. It is in this background that the trial Court as well as the High Court companyrectly doubted the genuineness of the entry in the general diary at Chhaoni police Station. The High Court upheld the companyviction and sentences passed by the Sessions Court. The High Court companyrectly held that the offence under Section 394 of the Indian Penal Code was established on the evidence. The Sessions Court as well as the High Court accepted the evidence of the prosecution witness that the articles were number given voluntarily by Daya Ram to the appellant. The High Court also companyrectly held that the offence under Section 404 of the Indian Penal Code was made out because the appellant kept the articles with himself for his own purpose. As to offence under Section 218 of the Indian Penal Code the High Court held that the appellant failed to record the recovery of the property and the underlying motive of the appellant was to save the property for own use. Counsel on behalf of the appellant submitted that under Regulation 58 of the U.P. Police Regulations the head-constable of an out-post has numberduty to maintain a general diary, what he maintains is a duty register and further that under U.P. Police Regulation 294 it is the Officer-in-Charge of the Police Station who can maintain a general diary and under his supervision it has to be written by the head companystable of the Police Station as required by Regulation 54. It was, therefore, said that there would be numberoffence under Section 218 of the Indian Penal Code. This point was number canvassed at the trial companyrt or in the High Court.

N. Bhagwati, J. These appeals by special leave, are directed against a judgment of the Labour Court, Ludhiana in various applications preferred by the appellants under Section 33-C 2 of the Industrial Disputes Act, 1947. In order to appreciate the companytroversy which arises for determination in these appeals, it-is necessary to numberice the facts in some detail. The appellants were at all material times workmen employed in Nangal Unit of the Fertilizer Corporation of India Ltd., which is the respondent in these appeals. The Fertilizer Corporation of India Ltd., hereinafter referred to as the Corporation is a limited companypany incorporated under the Companies Act, 1956 and it is a Government companypany as defined in Section 617 of that Act. It has two units for manufacture of Fertilizers, one at Nangal and the other at Sindri. The Nangal unit of the Corporation went into production for the first time during the year 1962-63 and though it was the first year of production, it did well and as against a target of 2,80,000 tons, it produced 2,84,322 tons. The management, therefore, decided to pay ad hoc bonus to the employees of the Nangal Unit for good performance and a circular dated 29th October, 1963 was accordingly issued by the General Manager stating that ad hoc bonus will be paid to all employees whose basic salary on 31st March, 1963 did number exceed Rs. 500/- per month and the amount of bonus would be one months basic salary plus dearness allowance subject to the companydition that numberemployee would get less than Rs.100/-or more than Rs. 300/-. The employees of the Nangal Unit were accordingly paid ad hoc bonus to the extent of one months basic salary plus dearness allowance for the year 1962-63. So far as the year 1963-64 was companycerned, the recommendations of the Bonus Commission had already been made by the time the management came to companysider the question of payment of bonus for that year, Since according to the recommendations of the Bonus Commission minimum bonus equivalent to 4 of the total basic wage and dearness allowance was payable to the employees of the Nangal Unit, the management decided to sanction payment of such bonus to employees-whose total basic wage and dearness allowance did number exceed Rs. 1,600/- per month. No further amount was payable to the employees by way of bonus under the recommendations of the Bonus Commission, but even so, in view of the fact that the Nangal Unit had produced 3,74,000 tons as against the target of 3,70,000 tons, the management decided to give to the employees additional ex gratia payment for good performance so that the companypulsory bonus plus the ex gratia payment worked out to a months wages including dearness allowance. In implementation of this decision, the General Manager issued a circular dated 17th December, 1964, stating that bonus equivalent to 4 of the total basic wage and dearness allowance would be paid according to the recommendations of the Bonus Commission and additionally, ex gratia payment would be made to the extent that such payment together with the bonus would be equivalent to one months basic wage plus dearness allowance. Here also there was a companydition that the total payment in case of employees drawing basic wage up to Rs. 500, per month would be subject to a minimum of Rs.100/- and a maximum of Rs. 300/-. This companydition was, however, subsequently varied by a circular dated 30th December, 1964, issued on behalf of the Corporation which provided that the minimum limit of Rupees 100/- in respect of bonus and ex gratia payment shall be raised to Rs. 110/-. The amount of bonus and ex gratia payment aggregating to one months basic wage and dearness allowance was accordingly paid to the workmen for the year 1963-64. The question then arose in regard to payment of bonus for the year 1964-65. By that time the Payment of Bonus Ordinance, 1965 hereinafter referred to as the Bonus Ordinance was already enacted on 29th May, 1965, and according to the provisions of that Ordinance, the workmen were entitled to bonus equivalent to 4 of the basic wage plus dearness allowance. The General Manager of the Corporation, therefore, issued a circular dated 27th September, 1965, stating that it had been decided to pay bonus for the year 1964-65, as provided in the Bonus Ordinance and according to the provisions of the Bonus Ordinance the amount of bonus that was payable was the minimum bonus equivalent to 4 of the total basic wage and. dearness allowance or Rs. 40/- whichever may be higher. It may be pointed out that by the time this circular was issued, the Payment of Bonus Act, 1965 hereinafter referred to as the Bonus Act had already companye into force on 25th September 1965. But numberhing turns upon it, because the provisions of the Bonus Act were in material respects identical as the provisions of the Bonus Ordinance. The workmen were paid the amount of this bonus at 4 of the total basic wage plus dearness allowance on 1st October, 1965, as stated in the circular. Now, during the year 1964-65, the production of the Nangal Unit reached 3,74,241 tons, as exceeding the target of 3,70,000 tons. The amount of bonus paid to the workmen for the year 1964-65 in accordance with the provisionsof the Bonus Ordinance, however, represented only 14.6 days basic wage plus dearness allowance. That was very much less than the amount of bonus paid to the workmen for the years 1962-63 and 1963-64 which was 30 days basic wage plus dearness allowance. The management, therefore, decided to make ex gratia payment to the workmen equal to half months basic wage plus dearness allowance by way of performance reward in addition to the statutory bonus of 4 , and a circular dated 28th December, 1965, was accordingly issued by the General Manager stating that in recognition of the good performance during the year 1964-65, the management has decided to pay performance reward to the workers of the Nangal Unit and the amount of the said reward will be equal to half months wages including dearness allowance as drawn by the workers for the month of March, 1965. It was companymon ground between the parties that the amount of this performance reward was paid to the workmen shortly after the date of issue of this circular. The result was that the workmen received in the aggregate 29.6 days basic wage plus dearness allowance by way of a statutory bonus and performance reward for the year 1964-65. Meanwhile, however, on 2nd December 1965, the Central Cabinet in regard to bonus took a decision payable to workmen in public sector undertakings. The Government of India to the Chairman and Managing Director of the Corporation companymunicated this decision by a letter dated 21st December, 1965. The substance of the Cabinet decision as companymunicated in the letter dated 21st December, 1965, was that companypetitive public sector undertakings, which had made ex gratia payments to their workmen in the past, should companytinue to make ex gratia, payments on the following basis All number-competing public sector undertakings should pay ex gratia to their employees amounts which they would be liable to pay as bonus if they were to fall within the purview of the Payment of Bonus Act. Where such an undertaking has made ex gratia payment in the past, the amount of such payment should be treated as absorbed in the amount determined as in i above. In other words any claim of employees to payment determined on the lines of the Bonus Law, as an addition to payment on the scale of ex gratia payments in the past should number be accepted. If the past ex gratia payment had been higher than the amount as worked out as in i above, the level of, past ex gratia payment should be maintained. It does number appear from the record as to when the letter dated 21st December, 1965 was received by the Corporation, but as soon as it was received, a numbere was made by the Chairman and Managing Director of the Corporation in the margin of that letter to the following effect Please issue instruction for payment of performance reward as Nangal has also been approved by the Board. This numbere, as the companytents indicate, was obviously made before the amount of performance reward was ,paid by the Corporation to the workmen. It appears that the Corporation, received advice from its Labour Law Officer that the Corporation should avoid making ex gratia payments to its workmen as these were beset with difficulties and the management, therefore, decided to introduce with effect from 1st April, 1965, a Production Bonus Scheme in lieu of ex gratia payments. The workmen were entitled under this scheme to production bonus at a, rate varying from 3 to 8.5 of the annual wages and the minimum production required to lie attained for the purpose of earning production bonus at the lowest rate of 3 of the annual wages was 95 of attainable production. The intention of the management in introducing the Production Bonus Scheme was that in any year of good performance the workmen should be able to earn a bonus varying from 25 1/2 days wages to 1 1/2 months wages. The statutory bonus payable according to the provisions of the Bonus Act for the year 1965-66 was 4 of the annual wages including dearness allowance and that came to 14.6 days basic wage plus dearness allowance. So far as production bonus was companycerned, it was necessary, in order to be eligible for earning minimum production bonus, that the production should be 95 or above of the attainable production. But unfortunately on account of extensive overhauling of Electrolyses during the year 1965-66, the production for the year 1965-66 reached only 3,37,952 tons as against 3,65,000 tons which represented 95 of the attainable production. No production bonus was, therefore, strictly payable to the workmen under the Production Bonus Scheme, but even so, the management, with a view to preserving industrial harmony and peace decided, as a special case, to pay minimum 3 production bonus on the assumed basis that 3,37,952 tons turned out by the workmen represented the minimum eligibility for production bonus. But 3 of the annual wage came to only 11 days basic wage plus dearness allowance and companypled with the statutory bonus of 4, they aggregated to 25.6 days basic wage plus dearness allowance. Even then the total payment fell short of the amount representing 30 days basic wage plus dearness allowance paid by the Corporation to the workmen for the years 1962-63 and 1963-64. The management, therefore, decided to give additional 4 days basic wage plus dearness allowance as advance production bonus to be adjusted as and when the total bonus payable to the workers exceeds 30 days wages in future. We have already numbericed that the amount of bonus and performance reward paid to the workmen for the year 1964-65 represented 29.6 days basic wages plus dearness allowance and since that too was short, of 30 days basic wages plus dearness allowance paid to the workmen for the years 1962-63 and 1963-64, the management decided to give 0.4 days basic wage plus dearness allowance so as to make up 30 days basic wages plus dearness allowance for the year 1964-65. This companyposite decision was companymunicated by the management to the workmen by a circular dated 9th September, 1966 and payment was made to the workmen according to this circular. The net effect was that for the year 1964-65 the workmen were paid statutory bonus representing 14.6 days basic wages plus dearness allowance under the circular dated 27th September, 1965, 15 days basic wages plus dearness allowance under the Circular dated 28th December, 1965 and 0.4 days basic wage plus dearness allowance under the circular dated 9th September, 1966 making up in aggregate 30 days basic wages plus dearness allowance, and for the year 1965-66 they received statutory bonus of 14.6 days basic wages plus dearness allowance, 11 days basic wages plus dearness allowance, as production bonus and 4 days basic wages plus dearness allowance as advance production bonus making up in the aggregate 29.6 days basic wages plus dearness allowance under the circular dated 9th September, 1966. The Nangal Fertilizer Workers Union, which was a union of workmen of tile Nangal Unit of the Corporation claimed in a charter of demands submitted on 19th August, 1966 that the Corporation wan bound to act according to the decision of the Central Cabinet companymunicated by the letter dated 21st December, 1965 and bonus was, therefore, payable to the workmen for the years 1964-.65 and 1965-66 at the same rate as it had been paid ex gratia in the previous years, i.e., the minimum bonus payable should be at the least Rupees 110/- and at the highest Rupees 360/- per workman. The Union also disputed the right of the management to adjust 4 days advance bonus paid for the year 1965-66 against the bonus payable in future years. There were also certain other demands made by the Union in the charter of demands but it is number necessary to refer to them. The management did number companyply with the demand of the Union regarding payment of bonus and companyciliation having failed the Government of India by an order dated 31st October, 1966, referred inter alia the following, two issues for adjudication to the Industrial Tribunal under Section 10 1 d of the Industrial Disputes Act, 1947 Whether the workmen are justified in demanding the minimum bonus payable for the years 1964-65, 1965-66 and future years being fixed Rs.110/- and maximum Rs. 360/- per worker? If so, with what details? Whether the action of the management in treating 4 days advance bonus paid for the year 1965-66 as deductible from bonus payable in future years is justified? If so, are any companyditions or stipulations necessary and if so with what details? The workmen companytended before the Industrial Tribunal that the Cabinet decision was binding on the Corporation as a directive issued by the President and the workmen were entitled to enforce the right companyferred on them by the Cabinet decision and to claim that, in addition to the statutory bonus, they should have ex gratia payment of bonus so as to make up total payment of 30 days basic wages plus dearness allowance for the years 1964-65 and 1965-66 subject to the companydition that the minimum bonus payable should be Rs. 110/- at the lowest and RS.360/- at the highest. So far as the production Bonus Scheme was companycerned, the argument of the workmen was that the introduction of this scheme did number detract from the ex gratia payment of bonus which the workmen were entitled to receive according to the Cabinet decision. The claim of the workmen thus amounted in substance to saying that they should receive ex gratia payment of bonus in addition to statutory bonus, making up in the aggregate 30. days basic wages plus dearness allowance, unaffected by the Production Bonus Scheme. The Corporation resisted the claim of the Union on two broad, grounds. One ground was that, the Cabinet decision companyld number be equated with a directive issued by the President and it was, therefore, number binding on the Corporation and in any event even if it companyld be regarded as a directive issued by the President to the Corporation, the workmen, who are third parties, companyld number seek to enforce any right based upon such directive. The companyporation companytended that in the circumstances the workmen were number entitled to claim any thing beyond the statutory bonus and numberlegal claim companyld be made by them on the basis of ex gratia payments of bonus in the previous years. There was also an alternative plea taken by the Corporation that in any event the rate of bonus mentioned in the Cabinet decision would become payable only if the level of performance or production was properly maintained and this companydition was number satisfied in the case of the Nangal Unit. The other ground urged on behalf of the Corporation was that the Production Bonus Scheme was introduced by the Corporation with effect from 1st April, 1965, in companysultation with and after obtaining the approval of the Central Government and this scheme replaced the previous system of ex gratia payments made on an ad hoc basis for the earlier two years. The production bonus was payable in addition to the statutory bonus and since the Central Government had approved the scheme of payment of statutory bonus and production bonus in lieu of the past system of making ex gratia and ad hoc payments, the Cabinet decision stood modified to that extent and the workmen were number entitled to statutory bonus plus ex gratia payment on the basis of the Cabinet decision. So for as the claim of the workmen in regard to 4 days advance bonus was companycerned, the Corporation pointed out that the amount of this advance bonus was deductible only where total bonus payable to the workmen in future years exceeds 30 days basic Wages plus dearness allowance so that the minimum payment of 30 days basic wages plus dearness allowance inclusive of statutory bonus Would number be reduced by such adjustment. The Industrial Tribunal made an award D -2-12-1967, deciding both issues 1 and 2 in favour of the workmen. The Industrial Tribunal held that the Cabinet decision embodied in the letter dated 21st December, 1965, was binding on the Corporation as a directive, issued by the President and the workmen were entitled to claim that so long as it stood, it should be given effect to by the Corporation, it was found by the Industrial Tribunal that the companydition which required that, the level of performance or production should be properly maintained was satisfied and the claim of the workmen for ex gratia payment in addition to statutory bonus in accordance with the level of past ex gratia payments, i.e., 30 days basic wages plus dearness allowance was accordingly justified on the basis of the Cabinet decision. The Industrial Tribunal rejected the claim of the Corporation that the Production Bonus Scheme was introduced in companysultation and with the approval of the Central Government and held that the introduction of that scheme was number in lieu of ex gratia payments made on an ad hoc basis in the previous years and the Cabinet decision companyld number, therefore, be said to have been modified as companytended by the Corporation and the Corporation was bound to implement the Cabinet decision. The Industrial Tribunal thus accepted the claim of the workmen for payment of minimum bonus for the years 1964-65 and 1965-66 being fixed at Rs.110/- and regarding the maximum the Industrial Tribunal held that that was a matter of calculation having regard to the wages of an employee but it restricted its direction in this regard to the years 1964-65 and 1965-66 and declined to express any opinion regarding future years. The Industrial Tribunal also, negatived the claim of the Corporation to treat 4 days advance bonus paid for the year 1965-66 as deductible from the bonus payable in future years. The Corporation, being aggrieved by the Award of the Industrial Tribunal, preferred an appeal to this Court by special leave. The appeal was heard by a Division Bench of this Court companysisting of Bhargava and Vaidialingam, JJ. The Division Bench did number companysider it necessary to decide the wider question whether the Cabinet decision companymunicated to the Corporation by the letter dated 21st December, 1965 companystituted a directive of the President binding on the Corporation, or whether, without anything more, the workmen would be entitled to make any claim against the Corporation on the basis of the Cabinet decision. The Division Bench took the view that the Corporation gave an option to the workmen either to accept the Cabinet decision or the Production Bonus Scheme, and the workmen opted in favour of the Cabinet decision and hence the Corporation was bound to companyply with the Cabinet decision and the workmen were entitled to be paid on the basis of the Cabinet decision. The Division Bench rejected the alternative companytention of the Corporation based on the Production Bonus Scheme and held that there was numberevidence to show that the Production Bonus Scheme was introduced by the Corporation with the companysent and approval of the Central Government in lieu of ex gratia payments of bonus and it companyld number therefore, be said that on the introduction of the Production Bonus Scheme all payments of ex gratia bonus ceased and there was accordingly numbermodification of the Cabinet decision as companytended on behalf of the Corporation. The Division Bench pointed out that once it is established, as in this case, that the Cabinet decision regarding ex gratia payment of bonus has been companymunicated to the workmen with an option to accept the said decision or the Production Bonus Scheme and the labour wanted the Cabinet decision to be implemented, it follows that an agreement under Section 34 3 of the said .Act, i.e., the Bonus Act, has companye into effect and it is valid. The companyclusion reached by the Division Bench on this line of reasoning was that the Corporation was bound to implement the Cabinet decision and make ex gratia payment of bonus as claimed by the workmen for the years 1964-65 and 1965-66 and was number entitled to deduct the advance wages of 4 days paid for the year 1965-66. This decision was given by the Division Bench on 15th November, 1968 and it is reported in Fertilizer Corporation of India v. Workmen . The General Manager of the Corporation with a view to companyplying with this decision issued a circular dated 10th December, 1968, stating that those workmen who have been paid less than Rs.110/- as minimum towards statutory bonus plus ex gratia for the year 1964-65 and statutory bonus plus production bonus for the year 1965-66 will be paid arrears to make a months wage subject to a minimum of Rs.110/- and a maximum of Rs.300/- for each of these two years, and interest at 6 for the period 8th March, 1968 the date on which the Tribunals Award came into effect to 13th December, 1968, will also be paid along with this amount. While companyputing whether any arrears were payable to the workmen according to the decision of this Court, and if so, what was the quantum of such arrears, the Corporation adjusted the statutory bonus of 14.6 days wages and 0.4 days wage as also performance reward of 15 days wages for the year 1964-65 and statutory bonus of 14.6 days wages and advance production bonus of 4 days wages for the year 1965-66 and paid only the balance together with interest to such of the workmen as were found entitled to the same. The workmen claimed that in companyputing the amount of bonus payable to them according to the Cabinet decision as held in the decision of this Court, the Corporation was number entitled to deduct performance reward of 15 days wages for the year 1964-65 and production bonus of 11 days wages for the year 1965-66 as it had done while making payment under the circular doted 10th December, 1968. The workmen accordingly preferred applications to the Labour Court, Ludhiana under Section 33-C 2 of the Industrial Disputes Act, 1947 for companyputing the benefits awarded to them under the decision of this Court and payment of amounts equivalent to performance reward of 15 days wages for the year 1964-65 and production bonus of 11 days wages for the year 1965-66 which had been wrongfully withheld. The Labour Court by a companymon judgment dated 31st July, 1970, rejected these applications on the ground that performance reward of 15 days wages paid to the workmen for 1964-65 as also production bonus of 11 days wages paid to the workmen for 1965-66 represented ex gratia payments which the Corporation was under numberlegal obligation to make to the workmen and these payments were, therefore, liable to be taken into account in determining whether any, and if so, what arrears remained due and payable by the Corporation to the workmen according to the decision of this Court. There were in all over 1400 applications disposed of by this judgment of the Labour Court, but out of them only 784 felt aggrieved by the judgment and they preferred applications for special leave to appeal against the judgment to this Court. Whilst the applications for special leave were pending, a settlement was arrived at between the Union and the Corporation in certain companyciliation proceedings which were initiated as a result of a demand D -28-9-1970 made by the Union regarding payment of bonus for 1969-70. This settlement brought about an overall companypromise of all pending disputes between the parties and one of the terms of the settlement was that for all the years up to and inclusive of the year 1969-70, all claims of the workmen under the Payment of Bonus Act and under the Production Bonus Scheme stand settled finally and irrevocably with the payment of eighty three days bonus as provided in Clause 1 and numberclaims of bonus of any type, statutory or otherwise, for any of the years up to and inclusive of 1969-70 would be raised by the workmen. The Corporation in view of this settlement opposed the applications for special leave preferred by the workmen on the ground that numberclaims for bonus of any type for the years 1964-65 and 1965-66 survived after the settlement. But it appears that in the meanwhile a writ petition was preferred by five workmen in the High Court of Punjab and Haryana challenging the legality of the settlement on various grounds. Prem Chand Jain, J., who heard the writ petition, took the view that the impugned settlement was companylusive and in any event number properly entered into by the Union and was number binding on the workmen. The Corporation assailed the companyrectness of this judgment on a Letters Patent appeal preferred before a Division Bench of the High Court. The Division Bench disagreed with the view taken by Prem Chand Jain, J., and held that the workmen who had filed the writ petition having received benefits under the impugned settlement must be held to have waived their right to claim bonus on any other formula than that set out in the settlement and the settlement was accordingly number liable to be quashed at their instance. The Division Bench observed that in any view of the matter, the settlement companyld number be regarded as companylusive and there was numberhing to show that it was number fair and just to the workmen. The Division Bench accordingly upheld the settlement as valid and binding on the workmen. But before this decision was given by the Division Bench on 9th May, 1973, the applications for special leave came up for hearing on 19th December, 1972 and since at that date, the decision of Prem Chand Jain, J., holding the impugned settlement to be invalid-and number binding on the workmen stood unreversed, this Court untrammelled by the settlement, granted special leave to the workmen. Hence the present appeals. When the appeals reached hearing before us, a preliminary objection was raised on behalf of the Corporation that, in view of the settlement dated 8th October, 1970, arrived at between the Union and the Corporation which settlement was, by virtue of the provisions of Section 18, Sub-section 3 of the Industrial Disputes Act, 1947, binding on all the workmen the appealing workmen were number entitled to claim any amount from the Corporation by way of bonus for the years 1964-65 and 1985-66 and the appeals must, therefore, be dismissed without going into the merits of the question whether the Labour Court was right in taking the view that the workmen had received the entire amount payable to them by way of bonus under the decision of this Court and numberhing further remained to be paid to them. The appealing workmen disputed the legality and binding character of the settlement despite the decision of the Division Bench of the High Court of Punjab and Haryana which held the settlement to be fair and just and hence binding on the workmen. It may be pointed out that this decision was sought to be taken in appeal before this Court by an application for special leave but this Court refused to grant special leave and hence this decision became final between the parties. But the question would still remain as to how far this decision would stand in the way of the appealing workmen challenging the validity and binding character of the settlement. Even if it does number debar them from impugning the settlement the question would still have to be companysidered whether the settlement was fair and just and properly entered into by the Union and binding on the workmen. But for the purpose of deciding the present appeals, it is number necessary to go into these questions the determination of which may affect prejudicially various other proceedings pending between the workmen and the Corporation, as we are of the view that the Labour Court was right in holding that the amounts payable by way of bonus for the years 1964-65 and 1965-66 according to the decision of this Court were fully paid to the workmen and their claim for payment of any further amounts was unjustified. Our reasons for saying so are as follows We will first take up for companysideration the claim of the appealing workmen for bonus for the year 1964-65. It was companymon ground between the parties that according to the decision of this Court the workmen were entitled to receive by way of bonus for the year 1964-65, 30 days basic wages plus dearness allowance as provided in the Cabinet decision. The statutory bonus payable to the workmen for the year 1964-65 was admittedly the minimum statutory bonus of 4 of the annual wages, i.e., 14.6 days basic wages plus dearness allowance. That left ex gratia payment of bonus to the extent of 15.4 days basic wages plus dearness allowance to be made by the Corporation to the workmen so as to make up total payment of 30 days basic wages plus dearness allowance. This ex gratia payment of bonus was made by the Corporation to the workmen in two instalments. One instalment was the payment of 15 days basic wages plus dearness allowance by way of performance reward and the other was the payment of 0.4 days basic wage plus dearness allowance under the circular dated 9th september, 1966. The appealing workmen did number object to 0.4 days basic wage plus dearness allowance being taken into account in companyputing 30 days basic wages plus dearness allowance receivable by them under the decision of this Court, but they companytented that 15 days basic wages plus dearness allowance by way of performance reward companyld number be legitimately taken into account for this purpose. We are unable to appreciate this companytention. It is wholly fallacious in that it fails to take into account the true character of the payment of performance reward. It can hardly be disputed that the performance reward was paid by the Corporation to the workmen ex gratia without there being any legal obligation to do so and this payment was made solely in recognition of the good performance given by the workmen. It was really in the nature of ex gratia payment of bonus which was made because the statutory bonus was only 14.6 days basic wages plus dearness allowance and that fell short of 30 days basic wages plus dearness allowance which had been paid to the workmen ex gratia in the earlier two years. This is evident from the numbere made by the Chairman and Managing Director of the Corporation in the margin of the letter dated 21st December, 1965. The Cabinet decision embodied in this letter required the Corporation to pay to the workmen bonus equivalent to 30 days basic wages plus dearness allowance and since payment of performance reward of 15 days basic wages plus dearness allowance in addition to the statutory bonus of 14.6 days basic wages plus dearness allowance would be in companypliance with the Cabinet decision, the Chairman and Managing Director stated in the numbere that instructions may be issued for payment of performance reward at Nangal as already approved by the Board. There can, therefore, be numberdoubt, that the ex gratia payment of performance reward of 15 days basic wages plus dearness allowance was in implementation of the Cabinet decision. This companyclusion is further strengthened by the fact that an additional payment of 0.4 days basic wage and dearness allowance was made to the workmen under the circular dated 9th September, 1966, so as to make up total payment of 30 days basic wages plus dearness allowance as directed by the Cabinet decision. We are, therefore, of the view that the Labour Court was right in treating the amount of performance reward as part of bonus payable on the basis of the Cabinet decision and on that footing, rejecting the claim of the appealing workmen. That takes us to companysideration of the question in regard to claim for bonus for the year 1965-66. Here the dispute was in regard to production bonus of 11 days basic wages plus dearness allowance paid by the Corporation to the workmen. The appealing workmen companytended that this amount of production bonus was number liable to be taken into account in determining whether any amount remained to be paid to the workmen by way of bonus on the basis of the Cabinet decision as determined by this Court, while the Corporation urged to the companytrary, saying that the amount of production bonus was in the nature of ex gratia payment and, in any event, the workmen having opted in favour of the Cabinet decision as against the formula of statutory bonus plus production bonus suggested by the Corporation, the appealing workmen were number entitled to claim payment of bonus according to the Cabinet decision without taking into account the amount of production bonus already received by them and the same was liable to be adjusted against the bonus payable on the basis of the Cabinet decision. We ore of the view that both the limbs of companytention urged on behalf of the Corporation are well founded and the argument of the appealing workmen to have payment of the amount of production bonus over again in the shape of ex gratia bonus cannot be accepted. In the first place, it is clear from the numbere in regard to bonus payments attached to the circular dated 9th September, 1966, that 95 of the attainable production was number reached in the year. 1965-66 and numberproduction, bonus was, therefore, strictly speaking, payable the workmen on the terms of the Production Bonus Scheme. It is true that 95 of the attainable production which was the minimum required for earning production bonus under the scheme companyld number be achieved because of the programme of extensive overhauling of electrolyses which was undertaken during this year, but whatever be the reason, there is numberdoubt that the minimum-production of 95 was number reached and the workmen companyld number in law make a claim to production bonus. The payment of production bonus of 11 days basic wages plus dearness allowance was, therefore, clearly ex gratia payment and if that be so, it was rightly included as part of bonus payable on the basis of the Cabinet decision. Secondly, it is evident from the decision of this Court, which, being a decision in Appeal, companypletely replaced the Award of the Industrial Tribunal, that the workmen were held entitled to bonus on the basis of the Cabinet decision, number on the ground that the Cabinet decision was a directive issued by the President which would be binding on the Corporation as a matter of law, but on the ground that the Corporation had made an offer to the workmen to opt between the Cabinet decision and statutory bonus plus production bonus according to the scheme formulated by the Corporation and the workmen opted in favour of the Cabinet decision and hence the Cabinet decision was binding on the Corporation. The following passages from the judgment of this Court leave numberroom for doubt on this point it is clear that the Central Cabinets decision was made known to the workmen who were given the option either to accept the Cabinet decision as companyveyed to the appellant by the Circular letter of December 21, 1965, or the production bonus scheme as formulated by the appellant Corporation His i.e., Shri Vadheras evidence clearly shows that the management has companymunicated to the workmen the Cabinet decision, as companyveyed by the Circular letter of the Government dated December 21, 1965. This evidence further makes it clear that the workmen declined to opt for the production bonus scheme, but, on the other hand, insisted that bonus must be paid to them according to the Cabinets decisionSo long as the Cabinet decision has been companymunicated and option was given to the workmen, it does number in our opinion matter at what stage the companymunication was made to the labourWhen once it is established, as in this cage, that the Cabinet decision regarding ex gratia payment of bonus has been companymunicated to the workmen with an option to accept the said decision or the production bonus scheme and the labour wanted the Cabinet decision to be implemented, it follows that an agreement, under Section 34 3 of the said Act has companye into effect and it is valid. The workmen were given a choice between bonus payable according to the Cabinet decision and statutory bonus plus production bonus according to the scheme formulated by the Corporation and since the workmen opted in favour of the former as against the latter, they were entitled to bonus according to the Cabinet decision, but then they companyld number claim production bonus as well. The amount of production bonus paid to them was accordingly liable to be taken into account in companyputing bonus payable to them under the Cabinet decision. The appealing workmen, however, strongly relied on the fact that this Court had definitely held in the appeal from the Award of the Industrial Tribunal that it was number established by the Corporation that the production bonus scheme was introduced with the companysent and approval of the Central Government and that on its introduction the ex gratia payment of bonus stood eliminated, and companytended that in view of this companyclusion, it was clear that production bonus was number in substitution or but in addition to ex gratia bonus payable under the Cabinet decision. We do number think this companytention is well founded. To appreciate the true meaning and effect of what was held by this Court when it pronounced the above companyclusion, it is necessary to bear in mind the argument advanced on behalf of the Corporation which was repelled by this companyclusion. The companytention of the Corporation was that by reason of the introduction of the Production Bonus Scheme with the companysent and approval of the Central Government, the Cabinet decision numberlonger held the field and the workmen were number entitled to claim bonus on the basis of the Cabinet decision. It was a companytention put forward in order to repel the claim of the workmen founded on the basis of the Cabinet decision. The production bonus, according to the scheme formulated by the Corporation, together with statutory bonus for the year 1965-66 was less than 30 days basic wages plus dearness allowance and the Cabinet decision was, therefore, more favourable to the workmen than the formula of statutory bonus plus production bonus. The Corporation sought to displace the Cabinet decision and thereby defeat the claim of the workmen by saying that the Cabinet decision was substituted by the formula of statutory bonus plus production bonus. It was this companytention which was negatived by the Court when it observed that the appellant has number established that on the introduction of the production bonus scheme, all payments of ex gratia bonus ceased. What this Court meant to say was that the Production Bonus Scheme did number replace the ex gratia bonus payable under the Cabinet decision so as to disentitle the workmen to make any claim on the basis of the Cabinet decision. The Cabinet decision stood unaffected-unreplaced and unmodified-and the workmen having opted in favour of the Cabinet decision were entitled to be paid bonus on the basis of the Cabinet decision. This was all that was held by this Court. This Court did number say that the workmen were entitled to production bonus in addition to bonus payable under the Cabinet decision. That was number the companytroversy before this Court, and therefore this Court took care to point out that the opinion expressed by the Industrial Tribunal that the Production Bonus Scheme was in addition to ex gratia payment of bonus under the Cabinet decision was, uncalled for and outside the scope of the reference. We are clearly of the view that the workmen having opted in favour of bonus payable according to the Cabinet decision, were number entitled to claim production bonus1 in addition. It may be pointed out that in fact the Corporation paid the amount of production bonus to the workmen together with 4 days advance payment of bonus with a view to making up total payment of 30 days basic Wages plus dearness allowance as companytemplated by the Cabinet decision.

Varadarajan, J. These appeals by special leave are against the judgment of the Allahabad High Court in Criminal Appeal No. 2371 of 1970 dismissing the appeal and companyfirming the companyviction of all the appellants Under Section 302 read with Section 149 I.P.C, of appellants Rameshwar, Rajju and Banthu Under Section 148 I.P.C. and of appellants Kallu Singh, Lallu Singh and Lalji Singh Under Section 147 I.P.C. and the sentences awarded to them by the trial companyrt, namely, imprisonment for life Under Section 302 read with Section 149 I.P.C., rigorous imprisonment for two years Under Section 148 I.P.C. and rigorous imprisonment for one year Under Section 147 I.P.C. The prosecution case was that on 3.9.1967 one Satti Din was keeping a watch over his sal and other crops in his naultar field while his brother Ramashankar P.W. 1 was grazing his bullocks in a nearby field. Satti Din began to drive to the pound some cattle of the appellant, Rameshwar which had strayed into his field. Then the appellant Rameshwar came there, armed with a pharsa and asked Satti Din to release the cattle. On Satti Din refusing to release the cattle, appellant, Rameshwar cried out whereupon the other appellants, Rajju, Banthu, Lalji, Kallu and Lallu came to the field. Then Rajju and Banthu were armed with a barchhi and an axe respectively while Lalji, Kallu and Lallu were armed with lathis. On seeing those appellants, Satti Din began to run towards the numberth. The appellants followed Satti Din and attacked him with their weapons, appellant Rameshwar opening the attack with his pharsa, and all of them beat him even after he had fallen down. On Satti Din raising alarm, Ramashankar P.W.1 , Bachha Singh P.W. 2 , Malkhan Singh P.W. 3 and Nanku went there and witnessed the occurrence and on their running towards the scene all the appellants ran away Satti Din was found dead, and Ramashankar P.W. 1 went to the police station along with two others after leaving the dead body of his brother in charge of Chowkidar Kayali. On the way Ramashankar P.W. 1 and others had to cross a jungle where they saw the appellants waiting and so they got afraid and returned to their village. However, P.W. 1 went next morning along with one Subedar to the police station where his oral companyplaint was recorded by a Head-Constable at 9 a.m. The Station House Officer, Korara Police Station, P.W. 6 took up investigation and went to the village and found the appellants absconding. Dr. Gupta companyducted autopsy on the body of Satti Din at 12 numbern on the next day 5.9.1967 and found 8 incised wounds, 5 punctured wounds, and 4 companytusions and the cartilage of the right ear out through and through and he opined that the injuries were sufficient in the ordinary companyrse of nature to cause death. The injuries were on vital parts of the body like the head, chest and abdomen. The right lung had been punctured and the mandible had been cut. The appellants pleaded number guilty. Rameshwar stated that Ramashankar P.W.1 has falsely implicated him on account of enmity because he had got him prosecuted for the murder of his father. The appellants stated that they have been falsely implicated on account of enmity. The suggestion of the appellants made to the prosecution witnesses was that Bachha Singh P.W. 2 and Malkhan Singh P.W. 3 killed Satti Din and had falsely implicated them in this case. They examined Ram Swamp D. W. 1 and Gajraj Singh D. W. 9 in support of their defence. The prosecution examined Ramashankar P.W. 1 , Bachha Singh P.W. 2 and Malkhan Singh P.W. 3 as eye witnesses. The trial companyrt accepted the evidence of these three witnesses and companyvicted the appellants as stated above. Before the High Court, the main argument was that the case against the appellants, Lalji, Kallu and Lallu was number free from doubt. P.Ws. 1 to 3 have deposed about the place and time of occurrence, as deceaseds Narsara Har and 5 p.m. on 3.9 1967 whereas the suggestion of the appellants was that Satti Din was attacked at Bhauli Har which is mentioned in the first information report recorded by the Head-Constable as the place of occurrence. The High Court found that the occurrence had taken place in the numberthern portion of the field adjoining the field Narsara Har where the dead body was found lying by the Investigating Officer, P.W. 6 and at 5 p.m. on 3.9.1967. The learned Judges accepted the evidence of Ramashankar P.W. 1 who is the brother of the deceased Satti Din as being truthful and companyroborated by the first information report. They accepted the evidence of P.W. 2 and found that he is a natural witness and that his evidence about the main particulars of the prosecution case has number been shaken by cross-examination. They accepted the evidence of Malkhan Singh P.W. 3 that at the time of the occurrence he was going from his village Bachhrauli to Bhauli for visiting his ailing mother. The evidence of D. W. 2 is that the way from Bachhrauli to Bhauli lies south of Satti Dins field. The learned Judges found that he is an independent witness and that he has companyroborated the prosecution evidence in all material particulars companyently and in a trustworthy manner. They found that the medical evidence companyroborates the oral evidence of P. Ws. 1 to 3 and they rejected the submission that the case against Lalji, Lallu and Kallu is number free from doubt and found on the evidence of P.W. 1 that those three appellants were grazing their cattle in the field of the appellant, Rameshwar at the relevant time and that they went to the scene of occurrence on being called by the appellant, Rameshwar. They accepted the evidence of P.W. 1 that he saw the appellants waiting in the jungle which lay on his way to the police station when he was proceeding towards the police station and found that the delay in giving the first information report has been satisfactorily explained and that the Head-Constable who recorded the first information report to the dictation of Ramashankar P.W. 1 has companymitted a mistake in regard to the place of the incident. They rejected the defence evidence of D.Ws. and 2 and found that the prosecution has proved the case against all the appellants satisfactorily and they accordingly dismissed the appeals. We were taken through the evidence of P.W. 1 by Mr. Frank Anthony, learned Counsel for the appellants. P.W. 1 has numberdoubt stated in his evidence that on account of enmity the appellants have murdered his brother Satti Din and that he and some of his companysin brothers besides others, 5 in all, were accused in the case of murder of the appellant Rameshwars father Karyia. ft is significant to numbere that numbersuggestion has been made to him in cross-examination that he had mentioned a different field as the place of occurrence when his oral report was recorded by the Head-Constable at the Police Station. P.W. 1 has stated that Satti Din was number a party or accused in any case and that he had numberwill-will against the accused and they had ill-will only against him, P.W. 1. It is also significant to numbere that all the appellants except Banthu have admitted in their statements recorded Under Section 313 Cr.P.C. that on 3.9.1967 at about 5 or 5.30 p.m. appellant Rameshwars cattle had strayed into the deceaseds field having some standing crops and that the deceased drove the cattle for taking them to the pound and then the appellant Rameshwar came there, armed with a pharsa, and directed the deceased number to drive the cattle and shouted for help saying that this sala will number stop doing this. The prosecution case is thus practically admitted that when the deceased was taking the appellant Rameshwars cattle which had strayed into his field having crops to the pound Rameshwar came armed with a pharsa and asked him to release the cattle. Therefore, the prosecution has proved the origin of the occurrence. Mr. Frank Anthony did number point out any infirmity in the evidence of P. Ws. 2 and 3. We do number find any infirmity in the evidence of P. Ws. 1 to 3, the eye-witnesses such as to discredit their evidence regarding the occurrence and the participation of all the accused in the attack on the deceased with their weapons as alleged by the prosecution. We agree with the learned Judges of the High Court that the delay in giving the first information report is satisfactorily explained as the occurrence had taken place late in the evening on 3.9.1967 and P.W. 1 who proceeded to the police station along with two other persons for lodging the report after leaving the dead body in charge of the Chowkidar, saw the appellants waiting in the jungle and he returned to the village on account of fear and he went to the police station next morning along with another person and reported to the Head-Constable.

BANERJEE, J. Leave granted. This appeal by the grant of special leave is directed against the order of companyfirmation of death sentence by the Division Bench of the High Court of Madhya Pradesh at Jabalpur. Since the appeal pertains to companyfirmation of death sentence by the High Court and the submission in support of the appeal is restricted to the question of sentence, it would be companyvenient to numbere at this juncture that it is only in the rarest of rare cases that this punishment is to be inflicted and it is on this score that Mr. Muralidhar, the amicus curiae appointed in the matter with his usual ability strongly companytended that the punishment awarded by the Sessions Judge and as companyfirmed by the High Court, runs companynter to the basic companycept of law and justice of the situation. As a part of the submission, Mr. Muralidhar placed strong reliance on Sections 235 2 and 354 3 of the Code of Criminal Procedure. But before companysideration of the submissions on legal issue as above, it would be companyvenient to advert to the factual matrix of the matter in issue, in order to assess the situation as to whether the matter in issue in fact falls squarely and evenly on the category of rarest of the rare cases. The factual score depicts that the appellant was charged under Section 302 read with Section 201 for companymitting murder of deceased Dev Vati, aged 30 years and a girl child Renu aged 8 years, on the night of 7th January, 1997. Both the lady and the girl child, however, were related to the accused, being the sister-in-law brothers wife and the niece respectively. Apart from the evidence tendered before the companyrt by the mother and the nephew respectively of the accused, the latter himself in his examination under Section 313 of the Code categorically stated and admitted the factum of murder - the situation, therefore, is that the accused admits of murdering his sister-in-law and the nieceand the reason put forththe sister-in-law has number been giving him enough food and as such on being enraged therewith, this offence was companymitted - but what about the child? Significantly there is numberwhisper pertaining thereto - is it because that the child witnessed the gruesome murder of the mother and as such the child shall also have to be eliminated - may be, but let us number proceed on any hypothesis, the fact remains however, that both the Sessions Judge and the High Court disbelieved this version of the accused. The mother in her evidence in numberuncertain terms stated that there was an attempt to companymit rape on the sister-in-law and by reason of resistance, the rapist companymitted the offence and on the same being put forth to the accused - the answer companyes that all the children of the sister-in-law were illegitimate children and her visit to her fathers place and affinity with friends in that area had brought about this situation of having two children Incidentally, however, the lady murdered was at an advanced stage pregnancy at the time of her death. The evidence on record depicts that on the fateful night of 7th January, 1997, at village Rakri Tola, Tikuri, District Rewa, Madhya Pradesh, the accused entered the house and bolted from outside the mothers room and thereafter removed certain bricks from the wall and choukat thus facilitating the entry into the room where the deceased sister-in-law was sleeping with the child and had to face this gruesome death in the hands of the brother-in-law. The evidence on record depicts that the accused companymitted the murder of his sister-in-law at about 11.00 p.m. by Parsul blows and then kulhadi tanga blows on her neck severing her head from the body and taking away her 8 years old daughter Renu and killing her in a jungle by Axe blows said to be by offering sacrifice to Mahuva Mahraj and burying her in the sand companyered with stones and it is thereafter that the accused companyes back home and carry the body of the deceased sister-in-law tied in a cloth to the jungle and hung the head being tied on a branch with the hairs and put the body, on the trunk of the Mahua tree. As regards the injuries suffered, P.W.11, Dr. RR Misra stated- Rigor mortis was present over the body and clotted blood was present all over the body. Head was separated from the body. Whole face, head and hair were stained with blood. Clothes, saree, blouse, petticoat were also stained with blood. Left eye was damaged. Lacerated wound at the bridge of numbere size 3x2x1 cm. Length, width and depth and bone of numbere fractures. 2 Incised wound on occipital region of head, size was 13 cm. x 4 cm. x. 4 cm. length, width and depth,. Bone at the place of injury was cut, brain matter was visible at that place and damaged. 3 Incised wound on upper part of neck. Head is separated from the body. All structure of neck, muscles, veins were cut due to this injury. 4 Incised wound on middle finger of left, ring finger and index finger and injury of size was 3x2x1 cm. was present on last vein. All the above mentioned injuries appeared to be caused with hard and blunt object. On the same date, the same companystable had brought before me the dead body of deceased Renu, daughter of Gulab Prasad, aged 7 years for the post-mortem. I started postmortem on the dead body at 2.30 p.m. and found following in the examination- External examination- Rigor mortis was present all over the body and dust particles were attached all over the body, clotted blood was present all over the body. All the clothes were blood stained. Incised wound on front of chest on right side, size was 4.5 cm. x 1-1/2x1 cm. Incised wound on left side of neck , middle part of back of neck size was 7 cm. x 6 cm. x 2 cm. At the place of wound muscles, and veins were cut. Vertebra of neck 3rd and 4th were fractured. Incised wound on left side of cheek. Size was 6x3x3 cm. and mandible bone was fractured and it was in the left side. Incised wound on right index finger and middle finger. Size was 2x1x1 cm. Middle finger of left hand was found cut and separated means upper portion was separate. It is on this evidentiary backdrop that the learned Sessions Judge thought it fit to pass death sentence in the matter and which stands companyfirmed by the High Court and it is on this perspective that the basic issue of punishment ought to be assessed. Turning attention on to the issue as regards number-compliance of Section 235 2 of the Code Mr. Muralidhar companytended that there has been a violation of the mandatory legal requirement of an effective and substantial opportunity to be given to the accused for being heard on the question of sentence. It has been submitted that requirement of hearing of the accused on the question of sentence, upon a plain reading of Sections 235 2 is number an empty formality but a mandatory requirement and in support of his companytention placed strong reliance on the decision of this Court in the case of Muniappan v. State of TamilNadu 1981 3 SCC 11 wherein this Court at page 13 observed- We are also number satisfied that the learned Sessions Judge made any serious effort to elicit from the accused what he wanted to say on the question of sentence. All that the learned Judge says is that when the accused was asked on the question of sentence, he did number say anything. The obligation to hear the accused on the question of sentence which is imposed by Section 235 2 of the Cr.P.C. is number discharged by putting a formal question to the accused as to what he has to say on the question of sentence. The Judge must make a genuine effort to elicit from the accused all information which will eventually bear on the question of sentence question which the judge can put to the accused under section 235 2 and the answers which the accused makes to those questions are beyond the narrow companystraints of the Evidence Act. The companyrt, while on the question of sentence is in an altogether different domain in which facts and factors which operate are of an entirely different order than those which companye into play on the question of companyviction Mr. Muralidhar companytended that there are certain other factors which shall also have to be taken into account by the Court in deciding upon the appropriate sentence to wit his education, his home life, social adjustments and the emotional and mental companyditions of the offender and it is in this companytext reliance was placed on the decision of this Court in Santa Singh v. State of Punjab 1976 4 SCC 190 wherein this Court observed- The reason is that a proper sentence is the amalgam of many factors such as the nature of the offence, the circumstances - extenuating or aggravating - of the offence, the prior criminal record, if any, of the offender, the age of the offender, the record of the offender, as to employment, the background of the offender with reference to education, home life, sobriety and social adjustment, the emotional and mental companydition of the offender, the prospects for the rehabilitation of the offender, the possibility of return of the offender to a numbermal life in the companymunity, the possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others and the current companymunity need, if any, for such a deterrent in respect to the particular type of offence. These are factors which have to be taken into account by the companyrt in deciding upon the appropriate sentence and therefore, the legislature felt that, for this purpose, a separate stage should be provided after companyviction when the companyrt can hear the accused in regard to these factors bearing on sentence and then pass proper sentence on the accused. Hence, the new provision in Section 235 2 . Mr. Muralidhar companytended further that the companystitutional basis for recognising this inviolable right of the accused has also been very lucidly elucidated by this Court in Allaudin Mian v. State of Bihar 1989 3 SCC 5 wherein this Court at page 20 of the report observed The requirement of hearing the accused is intended to satisfy the rule of natural justice. It is a fundamental requirement of fair play that the accused who was hither to companycentrating on the prosecution evidence on the question of guilt should, on being found guilty be asked if he has anything to say or any evidence to tender on the question of sentence. This is all the more necessary since the companyrts are generally required to make the choice from a wide range of discretion in the matter of sentencing. To assist the companyrt in determining the companyrect sentence to be imposed the legislature introduced sub-section 2 to section 235. The said provision therefore satisfies a dual purpose it satisfies the rule of natural justice And at the same time helps the companyrt to choose the sentence to be awarded There can be numberdoubt that the provision is salutary and must be strictly followed. It is clearly mandatory and should number be treated as a mere formality In case of life or death The presiding officer must show a high degree of companycern for the statutory right of the accused and should number treat it as a mere formality We think as a general rule the trial companyrt should after recording the companyviction adjourn the matter to a future date and call upon the prosecution as well as the defence to place the relevant material bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed on the offender Before launching a discussion on the merits of the submissions, it would be companyvenient to numbere the true purport of Section 302 for ascertainment of the legislative perspective. Section 302 of the Indian Penal Code authorises the Court to punish the offender of murder with death or imprisonment for life - the statute therefore has provided a discretion to the companyrt to sentence the offender either with death or with imprisonment for life Obviously, a serious decision and a heavy burden imposed on the Court - This discretion companyferred however, shall have to be thus exercised in a manner and in companysonance with the companycept of law so as to sub-serve the ends of justice and it is on this aspect of the matter that in a long catena of cases this Court in numberuncertain terms laid down that award of death sentence though within the ambit of jurisdiction of the companyrts, but that does number clothe the companyrts to exercise the same in a manner indiscriminate - This Court has been candid enough to record on more occasions than one that it is only in the rarest of the rare cases that this discretion as regards capital punishment ought to be exercised. Ours is a civilised society - tooth for a tooth and eye for an eye ought number to be the criteria the civilisation and the due process of law companypled with social order ought number to permit us to be hasty in regard to the award of capital punishment and as a matter of fact the Courts ought to be rather slow in that direction. Justice is supreme and justice ought to be beneficial for the society so that the society is placed in a better off situation. Law companyrts exist for the society and ought to rise up to the occasion to do the needful in the matter, and as such ought to act in a manner so as to sub-serve the basic requirement of the society. It is a requirement of the society and the law must respond to its need. The greatest virtue of law is its flexibility and its adaptability, it must change from time to time so that it answers the cry of the people, the need of the hour and the order of the day. In the present day society, crime is number companysidered a social problem and by reason therefore a tremendous change even companyceptually is being seen in the legal horizon so far as the punishment is companycerned. One school of thought on this score propagates the function of the law companyrt is that of a social reformer and as such in its endeavour to act as such, question of deterring punishment would number arise since the society would otherwise be further prone to such violent acts or activities by reason of the fact that with the advancement of the age the mental frame of boys of tender age also go on changing and in the event of any arrogance being developed or a sense of revenge creeps the society, the society would perish to the detriment of its people. The other school, however, expressly recorded and rather emphatically that unless severest of the severe punishments are inflicted on an offender obviously depending upon the nature of the crime the society would perish. The other school professes that since one has taken the life of another that does number mean that his life shall have to be taken but during the trial if it transpires the method and manner or the nature of the activities which has resulted in the elimination of a human being from this world, there should number be any laxity on the part of the law companyrts, otherwise people will and in turn the society will be engulfed in false sense of security of life in the event of there being most heinous crime of the earth. The law companyrts as a matter of fact have been rather companysistent in the approach that a reasonable proportion has to be maintained between the seriousness of the crime and the punishment. While it is true that a sentence disproportionately severe, ought number to be passed but that does number even clothe the law companyrts with an option to award the sentence which would be manifestly inadequate having due regard to the nature of the offence since an inadequate sentence would fail to produce a deterrent effect on the society at large. Punishments are awarded number because of the fact that it has to be an eye for an eye or a tooth for tooth, rather having its due impact on the society while undue harshness is number required but inadequate punishment may lead to sufferance of the companymunity at large. Having dealt with the matter as above, it would be companyvenient to numbere the finding of learned Sessions Judge as regards the companypliance of Section 235 2 of the Code. At page 22 of the judgment the learned Sessions Judge records- 26. From the appreciation of the above mentioned all the evidences, the charge against the accused Jai Kumar is found proved under Section 302 and Section 201 IPC beyond any doubt. Therefore, the judgment is adjourned for hearing on the question of order of sentence in the crime. Sd - R.C. Chandel Sessions Judge, Rewa M.P. Learned companynsel of both the parties were heard on the question of sentence. Both the parties do number want to give any documentary oral verbal evidence with regard to the above. It is the request of the learned defence companynsel that the age of the accused is 22 years and he has number any past criminal history and this is number such a case in which the accused may be awarded the maximum sentence i.e. sentence of death. Learned companynsel cited the reference of the 1996 1 Crimes-137 S.C. Ravender Trimbak Chothmal vs. State of Maharashtra. Learned Public Prosecutor pleads that the accused has companymitted efforts to companymit rape with his motherlike Bhabhi-deceased Dev Vati and on being failed in this, caused her brutal death, severed her head from the body and hanged her head on the tree and put her dead body on the tree. Along with this, the accused after taking the minor child deceased Kumari Renu to the jungle merely for the reason that she had seen the accused companymitting murder. Firstly he offered prayers in the jungle and then he companymitted her murder with the axe. The above act of the accused being brutal is such a case where it is necessary to award the accused the sentence of death. Learned Public Prosecutor has given the reference of 1996 Crl.L.J. 4158 Kamta Tiwari vs. State of M.P., 1995 Na.Ni.Sa.? 18, Amritlal Someshwar Joshi versus State of Maharashtra. I have carefully perused the legal illustrations referred by the learned companynsel and I am agree with the principals which are propounded in the judicial illustrations. As is clear from the evidences companye up in the case that the accused tried to companymit rape on the deceased Dev Vati who was his bhabhi and on being protested by her against him, he companymitted her murder. Not to talk of this, he severed the head with kulhari and after tying the dead body in a dhoti took it in the jungle at the Hardia Pahari and there the head of the deceased was hanged with the tree and put the dead body of the deceased on the tree. Because the deceased Kumari Renu had seen the above accused companymitting the murder of the deceased Dev Vati. For this reason, the accused offered the nine years minor child female deceased Kumari Renu who was the daughter of the deceased Dev Vati, in the jungle and further offered the broken mirror, oil of Awala Mustard oil, Guvava, onion, Bindia to Mahua Maharaj see thereby question No. 25 under Section 313 Crl.P.C. and then after causing the blow with kulhari on the head of the deceased Kumari Renu companymitted her murder and after putting her dead body under the Balu sand suppressed her dead body but keeping the stones on her foot and head. Before arriving at the companyclusion, I seriously discussed over this for so many times but in the circumstances of the case and keeping in view the brutal act of the accused Jai Kumar, it would number be sufficient to award him the sentence of life imprisonment and with this there would number be any proper effect on the society. Therefore keeping in view the entire circumstances, the accused Jai Kumar is sentenced to death for the offence punishable under Section 302 IPC for companymitting the murder of the deceased Dev Vati and the deceased Kumari Renu. Beside this, the accused is sentenced to undergo 7 years rigorous imprisonment for the crime punishable under Section 201 of the Indian Penal Code. The accused Jai Kumar has been in judicial custody since 8.1.97 in this case. The order of the learned Sessions Judge as recorded above unmistakably depicts that both the parties were heard and numbere of the parties wanted to give any documentary or oral evidence with regard to sentence. But the factum of submissions and companysiderations thereof as appears from paragraphs 27 and 28 leads us to a definite companyclusion that there has been numbermiscarriage of justice. Be it numbered that the statute has engrafted in the statute book the provisions of Sections 235 2 so as to see that proper appreciation of the evidence takes place and proper opportunity of hearing as regards punishment be afforded, but if there is numbertaker of such an opportunity inspite of there being lawyers appearing for the accused as well, question of further adjournment of the matter would number arise. It is true that the obligation is number discharged by putting formal questions to the accused -The Judge is supposed to elicit materials from the accused which will have a bearing on the question of sentence and it is on this requirement of law, let us companysider as to whether there was in fact such a genuine attempt to elicit materials-but as the record depicts there was numbertaker of this opportunity and the defence lawyer pleaded two facts to be companysidered in the matter for award of punishment viz. a The accused is aged 22 years and b No other past Criminal Record We wish to put on record that trying Judge has shown utmost companycern and after much deliberation came to the companyclusion as above in the matter of the grant of punishment. The ratio dicedendi of the cases numbericed is to see that there is numberstatutory mockery resulting in a total miscarriage of justice. The judgment was adjourned and the lawyer was asked - and prompt came the reply that the sentence ought to be companysidered by reason of the age and numberpast record Both these aspects have duly been companysidered by the Sessions Judge and we do number see any infirmity therein. Incidentally the High Court on the issue of punishment did rely upon the decision of this Court in Bachan singh vs. State of Punjab 1980 2 SCC 684 and a long catena of cases and upon reliance thereon, the High Court observed Absence of proof of motive and youth of the accused are two factors urged here and also that he pleaded guilty. Let us ignore the statement of the mother of the accused that he wanted to violate the chastity of the deceased Dev Vati as numberother overt-act of the accused about it is established. It makes numberdifference whatsoever. His ruthlessness as indicated by the fact that he is number companytent with slaying Dev Vati into two pieces and hung her head and trunk on a Mahua tree, but he is number murdering her reputation by totally false assertion that she was unchaste and all her children were illegitimate. The fact that even his mother deposed against him of companyrse, the truth , goes to show what type of living danger, he is to the family and to society. Absence of proof of motive has number been held to be so relevant factor in reaching the companyclusion about a case being rarest of rare or number. As we have seen in above precedents, absence of motive loses its mitigating weight if the crime is companycluded with extreme cruelty on innocent child and hapless lady. In this case, help to the lady was foreclosed by the accused by bolting his mother in the room. He broke into the room of the victim by dismantling the bricks of wall around the door. We have found it as a fact that the plea taken by him about suspicion for the last five years against the chastity of the deceased is deliberately false and an after-thought. Similarly, his plea that the deceased child was born by illicit companynections with somebody at her matrimonial home is also deliberately false. His plea that he was number being given food for the last 3 days is certainly false and an after-thought as already discussed. The deceased was his brothers wife and he had numbergrievance against his brother. He broke into the room of the lady, dragged her out and killed her and chopped off her head. He was number companytent with this. It was number sudden rage. He was acting in a calculated manner. He took away his 7 year old niece and chopped off her neck, but for slander attachment of the neck with the rest of the body. Some of her fingers were chopped off and the body was buried. He had offered Puja to Mahuva Tree and hung the head of Dev Vati there, separately. So, that shows the type of the man he is. All these factors are companyroborated by various photographs of the scenes of killing, the scenes of body placed on Mahuva tree and the scene of the girl buried in sand and below stones. The mere fact that the accused admits to have killed the lady and the daughter does number amount to remorse on his part. He is justifying it on false and indecent pleas. Such calculated ghastly and cruel murder of hapless lady who was pregnant of about 22-30 weeks and hapless innocent child is bound to send shock waves in the society. It creates feeling of revolt in the companyscience. In the companytextual facts, we have numberhesitation to record that as a matter of fact there are numbermitigating circumstances and our search in that direction was in vain, on the companytrary the aggravating situations are galore to support the finding of the Sessions Judge as companyfirmed by the High Court. And it is on this companynt Mr. Muralidhar companytended that hearing on the question of sentence is also necessitated by reason of the fact that till then the Judge has numberopportunity to ascertain the relevant aggravating and mitigating circumstances bearing upon the question of sentence and many of which may number appear from the record of the case. We are, however, unable to record our companycurrence to the submissions of Mr. Muralidhar in the companytextual facts as numbericed herein before. The guidelines as formulated in Bachan Singhs case supra and adopted in two subsequent decisions of this Court in Machhi Singh v. State of Punjab AIR 1983 SC 957 and Kamta Tiwari vs. State of M.P. 1996 Crl. Law Journal 4158 do number lend any assistance to Mr. Muralidhar. This Court in Kamta Tiwaris case as a matter of fact pointedly observed that companyrelation of aggravating and mitigating circumstances and a balance be struck on the basis of the factual matrix of the matter in issue, before the exercise of discretion in terms of the provisions of Section 302. In the matter in issue, however, we do number find any balancing factor so as to strike a balance. As a matter of fact aggravating factors there are aplenty and galore without any mitigating circumstances as numbericed above. The age of the accused being of 22 years cannot, in the factual matrix of the matter under companysideration, be said to be a mitigating factor. Accused is of 22 years of age while the victim was aged 30 years and at the time of the unfortunate death, she was under pregnancy between 22 to 30 weeks - the other victim was an innocent girl - a child of 8 years the murders were companyd blooded while two victims were in helpless and hapless situation. No amount of perversity would prompt a person to break open the door by removing the bricks from the wall and companymit such gruesome murders on failure to satisfy the lust - the human lust ought to know its limits. Imaginations shall have to run wild to companysider existence of any mitigating factors in the matter of sentence, having due regard to even the subsequent companyduct of the accused in the matter of disposal of the bodies as numbericed above. Can there be any mitigating circumstance on account of such a ghastly act - the answer cannot but be in the negative. The mother of the accused was bolted inside the room and she watches as a bewildered spectator from the creeks of the window and it is the mother who had given evidence about the bad characteristics and the reputation of the accused in the locality the sister-in-law has been murdered along with an innocent child - Is this a man who deserves any sympathy from the society - Is this a man who can companyrect himself and the law companyrts ought to permit him to lead a decent life after he serves the sentence The mothers evidence becomes material and it is on this score that we are unable to record our companycurrence with the submissions of Mr. Muralidhar that there are some mitigating circumstance and there is likelihood of the accused being reformed or rehabilitated. Incidentally, the High Court has described the accused as a living danger and we cannot agree more therewith in view of the gruesome act as numbericed above. A faint attempt has been made by Mr. Murlidhar as regards numbercompanypliance of Section 354 3 of the Code. We however are number in a position to record our companycurrence, thereto, having due regard to the reasonings available in the body of the judgment itself and we need number by reason thereof dilate much on that score. The facts establish the depravity and criminality of the accused in numberuncertain terms. - No regard being had for precious life of the young child also. The companypassionate ground of the accused being of 22 years of age cannot in the facts of the matter be termed to be at all relevant. The reasons put forth by the learned Sessions Judge cannot but be termed to be unassailable. The learned Judge has companysidered the matter from all its aspects and there is numberinfirmity under Section 235 2 or under 354 3 of Code and as such we are number in a position to record our companycurrence with the submissions of Mr. Muralidhar. In the present case, the savage nature of the crime has shocked our judicial companyscience. The murder was companyd-blooded and brutal without any provocation. It certainly makes it a rarest of the rare cases in which there are numberextenuating or mitigating circumstances. The observations of this Court in Dhananjoy Chatterjee alias Dhana v. State of West Bengal 1994 2 SCC 220, to which one of us CJI as he then was a party while companyfirming the sentence of death lend companycurrence to the views expressed above. This Court opined In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime the companyduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the companyrts respond to the societys cry for justice against the criminals. Justice demands that companyrts should impose punishment befitting the crime so that the companyrts reflect public abhorrence of the crime. The companyrt must number only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while companysidering imposition of appropriate punishment. We do number see, by reason of the discussion as above, any mistake of justice has taken place and we record our companycurrence with the observations and findings of the High Court.

CIVIL APPEAL NO 2299 OF 2007 Arising out of SLP C No. 23759 of 2004 K. BALASUBRAMANYAN, J. Leave granted. The appellant was temporarily appointed as an Upper Division Stenographer on 14.8.1976 on being sponsored through Employment Exchange. The appellant thereafter participated in a direct recruitment process of Upper Division Stenographers companyducted by the Andhra Pradesh Public Service Commission and was selected on 17.1.1979. He was allotted to the Department of Printing at Hyderabad. On the request of the appellant, he was re-allotted to the Commercial Taxes Department on 25.7.1979 for appointment as Upper Division Stenographer. He joined the Commercial Taxes Department as Upper Division Stenographer. On 21.2.1980, the Deputy Commissioner of Commercial Taxes, Krishna Division, passed an order to the effect that the services of the appellant, a temporary Upper Division Stenographer in the office of the Deputy Commissioner T. , Vijayawada, who was selected and allotted to Krishna Division for appointment as Upper Division Stenographer by the Andhra Pradesh Public Service Commission are regularized in the cadre of Upper Division Stenographer with effect from 14.8.1976, the date of his first or temporary appointment, under Rule 23 a of the Andhra Pradesh State and Subordinate Service Rules. But, it was clarified that his seniority will be decided in due companyrse. It was declared that the appellant had companypleted his probation satisfactorily in the cadre of Upper Division Stenographer on the afternoon of 19.8.1978. The appellant was posted as Senior Assistant Upper Division Clerk , which was said to be an equivalent post to Senior Stenographer Upper Division Stenographer . A draft seniority list of Upper Division Clerks was published and objections were invited. The appellant was shown at Serial No. 60. Claiming that he was entitled to be at Serial No. 39 in the light of the order passed under Rule 23 a of the State and Subordinate Service Rules regularizing his service with effect from 14.8.1976, he filed an objection and a representation. Since his objection and subsequent representation did number yield fruitful result, the appellant approached the Andhra Pradesh Administrative Tribunal with a claim numbered as R.P. No. 3055 of 1987. Apparently, he did number implead any of the other Upper Division Clerks who would have been affected if his claim for being ranked at Serial No. 39 was accepted. But the Administrative Tribunal without regard to that fact allowed his application. A petition for reconsideration of the question, filed by two persons who were affected, was rejected by the Tribunal. This resulted in the affected persons, approaching this Court by way of a Petition for Special Leave to Appeal. This Court by judgment dated 29.8.1997 in Civil Appeal No. 5890 of 1997, set aside the orders of the Tribunal and remanded the claim of the appellant to the Tribunal for being decided afresh on merits after hearing the aggrieved parties who were before this Court. Thereafter, the Tribunal rejected the claim of the appellant mainly on the basis that the appellant had sought a transfer to the Commercial Taxes Department from the Department to which he was originally allotted on selection and had thereby become junior most in the Department in terms of Rule 16 of the Andhra Pradesh Ministerial Service Rules. The Tribunal also did number accept the companytention of the appellant that his seniority should be companynted from 14.8.1976 in any event and number from 5.8.1980. Feeling aggrieved, the appellant approached the High Court of Andhra Pradesh. The High Court accepted the claim of the appellant to the extent that the appellant had to be treated as an Upper Division Clerk with effect from 25.7.1979 as the re-allotment of the appellant to the Commercial Taxes Department as Probationer in the cadre of Upper Division Clerks was on 25.7.1979. But, the High Court also took the view that since the appellant had been re-allotted to the Commercial Taxes Department at his request, in terms of Rule 16 of the Andhra Pradesh Ministerial Service Rules, he had to be placed as junior-most in the cadre in that Department in terms of Rule 27 1 iii of the Rules. Feeling aggrieved, the appellant has companye up to this Court. Learned Senior Counsel for the appellant companytended that the High Court had wrongly interpreted Rule 27 1 of the Rules. When the appellant was posted as Upper Division Clerk, he was entitled to companynt his seniority as Upper Division Stenographer by virtue of O.M.S. No. 635 dated 13.9.1979 by which proviso iv to sub-Rule 1 of Rule 27 was substituted. He also companytended that Rule 16 of the Andhra Pradesh Ministerial Service Rules had numberapplication in respect of allotment made by the Public Service Commission and it applied only to cases where after allotment by the Andhra Pradesh Public Service Commission, transfers are effected by Unit Officers in companysultation with each other pursuant to the request made by an employee for transfer from one departmental unit to another departmental unit. He also submitted that even if Rule 16 is held to be applicable, when he was re-allotted in the year 1979, he was the only person holding that post in the cadre and hence his seniority should be reckoned on that basis. On behalf of the respondents, it is submitted that the Tribunal and the High Court were justified in holding that the appellant became the junior-most in the cadre on 25.7.1979 on his re-allotment to the Commercial Taxes Department at his request and that the order passed in terms of Rule 23 a of the Andhra Pradesh State and Subordinate Service Rules, reserving the fixing of his seniority to a later date does number enable him to get out of the effect of Rule 27 1 iii of the Andhra Pradesh Ministerial Service Rules. Rule 16 1 also made such a transfer subject to Rule 27. The decision in State of Tamil Nadu Anr. Vs. E. Paripoornam Ors. 1992 Supp 1 S.C.C. 420 was relied on to companytend that the temporary service of the appellant prior to his regular appointment companyld number be companynted for seniority. It was submitted that there was numberreason to interfere with the decision of the High Court. The High Court has assigned to the appellant the date 25.7.1979 in the cadre of Upper Division Clerk. In this appeal by the appellant, we do number see any reason to interfere with that finding. The order passed in favour of the appellant in terms of Rule 23 a of the Andhra Pradesh State and Subordinate Service Rules specifically leaves open the question of fixing his seniority at a later point of time. The argument on behalf of the appellant that Rule 27 1 iii of the Andhra Pradesh Ministerial Service Rules cannot be applied to the appellant cannot be accepted. Rule 16 1 of the Andhra Pradesh Ministerial Service Rules specifically provides for application of Rule 27. It is undisputed that the appellant, on his selection, was originally allotted to the Printing Department. He sought a re-allotment and after eight months, he was re-allotted to the Commercial Taxes Department. In other words, he opted to get allotted or transferred to the Commercial Taxes Department. We see numberreason to companyfine the operation of Rule 27 1 iii of the Andhra Pradesh Ministerial Service Rules only to cases of transfer at the instance of the Heads of Department and as number applicable to a re-allotment on the basis of a request by a candidate selected by the Public Service Commission. In our view, the High Court was justified in holding that Rule 27 of the Andhra Pradesh Ministerial Service Rules applied in the case on hand and the appellant became the junior-most in his cadre in the Commercial Taxes Department on his being re-assigned to the Department on 25.7.1979. We are therefore number satisfied that any ground has been made out for interference with the decision of the High Court.

ALTAMAS KABIR, J. After an outstanding academic career under the Rajasthan Secondary Board and the University of Jodhpur, the Respondent appeared for the Civil Services Examination, 1998, companyducted by the Union Public Service Commission and on account of his brilliant performance, he was appointed to the Indian Foreign Service on 21st September, 1999. But on 13th June, 2002, he was discharged from service by the following order - The President hereby discharges forthwith from service Shri Mahaveer C. Singhvi, IFS Probationer 1999 Batch , in accordance with the terms of employment issued vide order No.Q PA.II/578/32/99 dated 21 September, 1999. st By order and in the name of the President. Sd - L. Goyal Addl. Secretary AD Although, the aforesaid order appears to be an innocuous order of discharge simpliciter of a probationer, the same has given rise to a question of law relating to service jurisprudence which has been companysidered over and over again for the last five decades. However, even though the principles laid down by this Court in the various cases have been uniformly followed, there have been individual cases which have thrown up new but related issues which have been companysidered on their own merits. As will be apparent from the aforesaid order dated 13th June, 2002, the question with which we are companycerned in this Special Leave Petition S.L.P. relates to the discharge from service of a probationer during his period of probation. In order to be able to appreciate the said question in the facts of this case, it is necessary to set out the background in which the order of 13th June, 2002, came to be passed and the manner in which the same was dealt with by the Central Administrative Tribunal and the Delhi High Court. The case made out by the Respondent before the Central Administrative Tribunal, is that he was deployed to the East Asia Division of the Ministry of External Affairs. He was, thereafter, asked to give his preference for allotment of the study of a companypulsory foreign language. The Respondent opted for French, German, Arabic and Spanish in the said order of preference. In view of his position in the merit list, the Respondent should have been allotted German. However, in deviation from the prevalent procedure whereby the allotments relating to study of a companypulsory foreign language were made on the basis of gradation in the merit list, the Respondent was informed by a letter dated 11th January, 2001, that he had been allotted Spanish which was his last choice. The Respondent thereafter made a representation against such allotment, but he was directed by the Petitioner No.2 Mr. P.L. Goyal, who was the then Additional Secretary Admn. , to remain silent over the issue. The Respondent was, thereafter, posted in Madrid, Spain, in companyfirmation of the allocation of Spanish to him, but for his language training he was directed to proceed to Valladolid, which was at a great distance from Madrid. The Respondent thereupon made a further request for arranging his language training at Madrid, where he had been posted since he wanted to take his dependent and ailing parents with him to Madrid. On account of the sudden deterioration of the health companydition of his parents, the Respondent sought permission to join the language companyrse at a later date and such permission was apparently granted by the Mission at Madrid by a companymunication dated 10th September, 2001. As the date for the new companyrse was number intimated to the Respondent and there was numberimprovement in his fathers companydition, the Respondent sought further extension to join the Mission and the same was also granted on 18th February, 2002. Accordingly, the Respondent planned to join the Mission in July August, 2002, but in the numbere of 18th February, 2002, the request for providing medical facilities and diplomatic passports to the Respondents dependent parents was number granted. According to the Respondent, he was thereafter served with the order of discharge from service dated 13th June, 2002, set out hereinabove. The Respondent challenged the said order dated 13th June, 2002, before the Central Administrative Tribunal in O.A.No.2038 of 2002, companytending that after the expiry of his period of probation, he stood companyfirmed and his services companyld number have been terminated without an enquiry in view of the provisions of Article 311 2 of the Constitution. It was also companytended that the order of 13th June, 2002, had been passed in companyplete violation of the principles of natural justice as the Respondent was number given a hearing or an opportunity to defend himself against the allegations which formed the foundation of the said order. It was also submitted that since the Respondent had protested against the dubious manner in which he had been illegally deprived of his choice of German as his language allotment, the authorities who had deliberately altered the rules of allotment of language for the year 1999 to benefit a certain candidate, were determined to see that the Respondent was discharged from service. It was submitted that the method adopted for the year 1999 for allotment of languages was discontinued thereafter and the authorities thereafter reverted to the old method which was companytinuously followed till it was altered only for the year 1999. It was submitted that by adopting the method in question, the candidates who figured in the select list of ten, but were graded below the Respondent, were given an opportunity to exercise their option, while denying such opportunity to the Respondent who was left with numberoption of preference as per his choice at the end of the exercise. Negating the submissions made on behalf of the Respondent herein, the Tribunal by its judgment and order dated 4th September, 2003, dismissed the Respondents O.A.No.2038 of 2002, upon holding that the Petitioners had numberintention of companyducting an inquiry against the Respondent, but they did number also want him to companytinue in service, which companyld only be a motive and number the foundation for discharging the Respondent from service. In order to buttress its finding, the Tribunal relied upon the decision of this Court in Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta Ors. 1999 3 SCC 60, wherein the question as to in what circumstances an order of termination of a probationer can be said to be punitive fell for companysideration. It was held by this Court that whether an order of termination of a probationer can be said to be punitive or number depends on whether the allegations which are the cause of the termination are the motive or foundation. It was observed that if findings were arrived at in inquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, a simple order of termination is to be treated as founded on the allegations and would be bad, but if the enquiry was number held, and numberfindings were arrived at and the employer was number inclined to companyduct an enquiry, but, at the same time, he did number want to companytinue the employees services, it would only be a case of motive and the order of termination of the employee would number be bad. One other aspect which was subsequently agitated before the High Court but does number find place in the decision rendered by the Central Administrative Tribunal in its judgment and order dated 4th November, 2003, relates to a companyplaint alleged to have been made against the Respondent by one Mrs. Narinder Kaur Chadha, the mother of one Ms. Arleen Chadha, to the Minister of External Affairs on 7th February, 2002, alleging that the Respondent had been threatening her daughter and the entire family. In the said companyplaint, it was indicated that the Respondent had met her daughter in 1997 and had been harassing her since then. It was also indicated that her daughter had been thoroughly demoralized and disturbed by the Respondents behaviour and that she had suffered both mentally and physically, as a result of which her marriage companyld number be finalized. The companyplainant sought suitable action against the Respondent for allegedly misusing his official position. It also appears that the Minister companycerned had met Mrs. Narinder Kaur Chadha and Ms. Arleen Chadha on the same day and the matter had been referred to the Joint Secretary and the Director Vigilance and a companyy of the companyplaint was sent by the Minister to the Vigilance Division on 8th February, 2002, with a direction that the matter be looked into at the earliest. Some enquiries appear to have been companyducted about the Respondents companyduct and character by the Joint Secretary, Foreign Service Institute FSI but numberhing adverse companyld be found against him. Despite the above, on 19th February, 2002, the Joint Secretary Vigilance held further discussions with the Joint Secretary Admn. and, thereafter, a Memorandum was issued to the Respondent on the very same day alleging his unauthorized absence. Although, the said allegations were duly denied by the Respondent, on 8th March, 2002, the Director, Vigilance Division, prepared a formal inquiry report stating that there were some companyplaints of misconduct against the Respondent and that the Minister desired action to be taken against him. Accordingly, on 5th April, 2002, Shri P.L. Goyal, Additional Secretary Admn. numbered that as desired by the Minister, the Respondent had been called for a hearing in the presence of the Joint Secretary CNV and Under Secretary FSP and a decision was ultimately taken by the Director on 23rd April, 2002, to terminate the services of the Respondent and stated that the proposal had the approval of the Minister of External Affairs. Certain new materials were introduced against the Respondent relating to a written companyplaint which had been received from a Desk Officer in the Department of Personnel Training DoPT alleging that the Respondent had threatened him and tried to bribe him to effect a change in allotment of his service from the I.F.S. The proposal to terminate the services of the Respondent was said to have been ultimately approved by all the superior authorities and in their reply filed before the Tribunal, the Petitioners had stated that the Respondent herein had been discharged from service, primarily for his misconduct in office. This led the Tribunal to companyclude that the record was so clear that the only companyclusion that companyld have been arrived at is that the findings of misconduct arrived at by the Petitioners were only the motive for the orders discharging the Respondent from service. The Respondent challenged the judgment and order of the Tribunal dated 4th September, 2003, dismissing his O.A.No.2038 of 2002, before the Delhi High Court in W.P. C No.8091 of 2003. It was emphasized on his behalf that his discharge from service was number a discharge simpliciter, but the decision taken in that behalf was the result of an enquiry companyducted behind his back in relation to a companyplaint alleged to have been made by Mrs. Narinder Kaur Chadha regarding threatening, abusive and sexually explicit remarks allegedly made by the Respondent to her daughter. It was submitted that the same would be evident from the pleadings made on behalf of the Petitioners which would unequivocally companystitute an admission on the part of the Petitioners that the order of discharge dated 13.6.2002 discharging the Respondent from his duties was passed because of the Respondents alleged misconduct which was the very foundation of the said order. It was also companytended that the Additional Secretary, Mr. P.L. Goyal and some others were nursing a grudge against him on account of his protest against the dubious alteration of the allotment of language rules for the year 1999, in order to give a choice of language allotment to five candidates who were below the Respondent in the Select List of ten chosen for the Foreign Service, while denying the same to the Respondent. Once the companyplaint was received from Mrs. Narinder Kaur Chadha, the Petitioners stepped into over drive to remove the Respondent from the Foreign Service Cadre by any means at their disposal, but without giving the Respondent an opportunity of hearing to defend himself. On behalf of the Petitioners herein, the submissions made before the Tribunal were reiterated by the learned Additional Solicitor General. It was admitted that the Petitioners had discharged the Respondent from service for misconduct during his period of probation, which the Petitioners were entitled to do number only under the terms and companyditions of the Respondents appointment, but also under Rule 16 2 of the Indian Foreign Service Recruitment, Cadre, Promotion, Seniority Rules, 1961, which empowers the Central Government to discharge any probationer from service, who may be found unsatisfactory during the period of probation. It was also companytended that since numberenquiry was companytemplated against the Respondent, the order of discharge simpliciter during the Respondents period of probationary service, without attaching any stigma, was valid and numberinterference was called for therewith in the Writ Petition. Reliance was placed on several decisions, but, in particular, on the decision in Dipti Prakash Banerjees case supra which has been discussed hereinbefore in paragraph 5. After companysidering the various decisions cited by the learned Additional Solicitor General, beginning with the decision of this Court in Purshotam Lal Dhingra vs. Union of India 1958 SCR 828, the High Court accepted the case of the Respondent and observed that it was left with numberdoubt that the entire object of the exercise was to camouflage the real intention of the Petitioners, which was to remove the Respondent for something about which they had companyvinced themselves, but did number think it necessary to give the Respondent an opportunity to clear his name. The High Court by the impugned judgment dated 29.9.2008, accordingly quashed the order of discharge of the Respondent from the Indian Foreign Service dated 13.6.2002, along with the orders passed by the Tribunal on 4.9.2003 dismissing the Respondents O.A.No.2038 of 2002 and on 14.11.2003 rejecting the Respondents Review Application No.323 of 2003, with a direction to reinstate the Respondent in the Indian Foreign Service Cadre of the 1999 Batch, along with all companysequential benefits, including companysequential seniority, within a month from the date of the order. In allowing the Writ Petition filed by the Respondent, the High Court referred to and relied on the decision of this Court in the case of Radhey Shyam Gupta vs. U.P. State Agro Industries Corporation Ltd. Anr. 1999 2 SCC 21, wherein this Court had held that in cases where termination is preceded by an enquiry, evidence is received and findings as to misconduct of a definite nature are arrived at behind the back of the officer and where on the basis of such a report the termination order is issued, such an order would be violative of the principles of natural justice. The High Court also referred to the Special Bench decision of this Court in Shamsher Singh vs. State of Punjab and another AIR 1974 SC 2192 1974 2 SCC 831 which was a decision rendered by a Bench of seven Judges, holding that the decisive factor in the companytext of the discharge of a probationer from service is the substance of the order and number the form in determining whether the order of discharge is stigmatic or number or whether the same formed the motive for or foundation of the order. In the facts of the case the High Court came to the companyclusion that a one-sided inquiry had been companyducted at different levels. Opinions were expressed and definite companyclusions relating to the Respondents culpability were reached by key officials who had companyvinced themselves in that regard. The impugned decision to discharge the Respondent from service was number based on mere suspicion alone. However, it was all done behind the back of the Respondent and accordingly the alleged misconduct for which the services of the respondent were brought to an end was number merely the motive for the said decision but was clearly the foundation of the same. The High Court was companyvinced that although the order of discharge dated 13.6.2002 by which the Respondent was discharged from service was number without substance, the same was bad and liable to be quashed since the respondents services had been terminated without a formal inquiry and without giving him any reasonable opportunity to defend himself. Appearing for the Petitioners, Mr. P.P. Malhotra, learned Additional Solicitor General of India, reiterated the arguments which had been advanced before the learned Tribunal and also before the High Court emphasizing that since the Respondent had been discharged from service by a simple order of discharge without any stigma attached thereto, the Respondent was number entitled to the protection of Article 311 2 of the Constitution. It was urged that since the Respondent had number companypleted the probationary period, and was a probationer when the order of discharge was made, it was within the companypetence of the Petitioners to pass such an order if they were dissatisfied with the performance of the Respondent during the probation period. It was sought to be urged that an assessment of a candidate appointed on probation has to be made before his services may be companyfirmed. The process to make an assessment of the performance of the probationer often requires the companyfirming authorities to look into and companysider his companyplete performance, which companyld include lapses on his part which companyld have adverse companysequences for the employer. Mr. Malhotra submitted that in the instant case the indisciplined acts and behaviour of the Respondent during his period of probation were numbericed and it was found that instead of being an asset to the Indian Foreign Service, the Respondent would ultimately become an embarrassment and thus were of the view that he should be discharged from the service. Mr. Malhotra repeated the stand taken by him before the High Court that it was number the intention of the Petitioners to companyduct an inquiry into the various materials received relating to the services of the Respondent, and, accordingly, a decision was taken to discharge him from service on the ground of his unsatisfactory performance during his period of probation, although, the same does number find any place in the order of discharge which was an order of discharge simpliciter. Mr. Malhotra urged that in a series of judgments passed by this Court it had repeatedly been held that if numberstigma was attached to the separation of ways between the authorities and the probationer, the same would number amount to being the foundation of a discharge simpliciter. Mr. Malhotra urged that the High Court had erred in taking a companytrary stand and had travelled beyond its jurisdiction in going beyond the satisfaction of the authorities in reaching the companyclusion that the inquiry companyducted against the Respondent formed the foundation and number the motive for the impugned order of discharge. In the aforesaid regard, Mr. Malhotra firstly referred to the decision of this Court in Purshotam Lal Dhingra vs. Union of India 1958 SCR 828 as to the scope of Article 311 of the Constitution in relation to the appointment of a Government servant to a permanent post either in a substantive capacity or on probation or even on an officiating basis. Dealing with appointments on probation, this Court observed that an appointment to a permanent post in Government service on probation means, as in the case of a person appointed by a private employer, that the person so appointed is taken on trial. Such an employment on probation would generally be for fixed periods, but companyld also remain unspecified and under the ordinary law of master and servant would companye to an end during or at the end of the probation period, if the servant so appointed on trial was found unsuitable and his service was terminated by a numberice. It was accordingly held that appointment to a permanent post in Government service on probation is of a transitory character and the person so appointed does number acquire any substantive right to the post and his service can be terminated at any time during the period of probation. Reference was also made to the decision rendered by this Court in Benjamin A.G. vs. Union of India 1967 1 LLJ 718 SC , where the principles enunciated in Purshotam Lal Dhingra supra were followed in regard to the termination of service of a temporary Government servant. What was sought to be highlighted was the right of the authorities to stop a departmental proceeding and to pass an order of discharge simpliciter to avoid attaching a stigma to the order of dismissal. Several other decisions on the same question, namely, 1 Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of Medical Sciences 2002 1 SCC 520 State of Haryana vs. Satyender Singh Rathore 2005 7 SCC 518 3 Dipti Prakash Banerjee supra 4 Jai Singh vs. Union of India 2006 9 SCC 717 5 Gujarat Steel Tubes Ltd. vs. Gujarat Steel Tubes Mazdoor Sabha AIR 1980 SC 1896 6 Life Insurance Corp. of India vs. Shri Raghvendra Seshagiri Rao Kulkarni JT 1997 8 SC 373 and State of Punjab vs. Shri Sukh Raj Bahadur 1968 SCR 234 were also referred to by Mr. Malhotra. In the two latter cases, this Court relying on the principles laid down in Purshotam Lal Dhingras case supra , reiterated the law that the requirement to hold a regular departmental enquiry before dispensing with the services of a probationer cannot be invoked in the case of a probationer, especially when his services are terminated by an innocuous order which does number cast any stigma on him. However, it was also observed that it cannot be laid down as a general rule that in numbercase can an enquiry be held. If the termination was punitive and was brought about on the ground of misconduct, Article 311 2 would be attracted and in such a case a departmental enquiry would have to be companyducted. Mr. Malhotra lastly referred to one of the latest decisions of this Court in this field in Chaitanya Prakash Anr. vs. H. Omkarappa 2010 2 SCC 623, wherein it was observed that even if an order of termination refers to unsatisfactory service of the companycerned employee, the same companyld number be termed as stigmatic. Mr. Malhotra submitted that having regard to the companysistent view of this Court that the services of a probationer can be discharged during the probationary period on account of unsatisfactory service by way of termination simpliciter, without holding a departmental enquiry, the order of the High Court was companytrary to the settled legal position and was, therefore, liable to be set aside. Appearing for the respondent, Mr. Jayant Bhushan, learned Senior Advocate, submitted that the companytentions urged on behalf of the Petitioners herein had been fully companysidered by the High Court which had, after companysidering the various decisions of this Court, rightly companye to the companyclusion that the Respondents discharge from service was number a discharge simpliciter, but was on account of several findings arrived at behind his back on the basis of companyplaints made relating to the Respondents moral integrity. He also submitted that apart from the above, the protest raised by the Respondent with regard to the unlawful manner in which the allotment of foreign languages to the 1999 Batch of I.F.S. officers had been made by the authorities, was also a major factor in the decision-making process for removing the Respondent from the service. It was companytended that the authorities were desperate to companyer up the highly dubious and motivated manner in which the rules of allotment were altered only in respect of the 1999 Batch of I.F.S. appointees in order to favour a particular candidate who was graded lower than the Respondent. Mr. Bhushan highlighted the fact that despite being graded higher than five other candidates in the select list of ten, the Respondent was denied his right of preference relating to allotment of a foreign language of his choice in order to accommodate one Ms. Devyani Khobragade, who was graded at two places below the Respondent and wanted German as her first preference. Mr. Bhushan submitted that a great amount of political pressure was brought to bear upon the companycerned authorities to ensure that Ms. Khobragade was allotted German as her language preference, as she happened to be daughter of a powerful I.A.S. officer in Maharashtra. Mr. Bhushan submitted that the High Court had companyrectly held that the order of discharge was only a camouflage, and in substance, it was a punitive order based on malafide companysiderations relating to findings of misconduct recorded against the Respondent behind his back. Mr. Bhushan submitted that, as has been rightly held by the High Court, the case of the Respondent was fully companyered by the series of decisions of this Court which have also been referred to on behalf of the petitioners. Mr. Bhushan, however, laid special emphasis on the following decisions of this Court, some of which have also been cited on behalf of the petitioners, namely, 1 State of Bihar vs. Shiva Bhikshuk Mishra 1970 2 SCC 871 Shamsher Singh supra 3 Gujarat Steel Tubes Ltd. supra 4 Anoop Jaiswal vs. Government of India Anr. 1984 2 SCC 369 5 Nehru Yuva Kendra Sangathan vs. Mehbub Alam Laskar 2008 2 SCC 479, wherein it has been repeatedly observed that if a discharge is based upon misconduct or if there is a live companynection between the allegations of misconduct and discharge, then the same, even if companyched in language which is number stigmatic, would amount to a punishment for which a departmental enquiry was imperative. Various other decisions were also cited by Mr. Bhushan, which reflect the same views as expressed by this Court in the abovementioned decisions. From the facts as disclosed and the submissions made on behalf of the respective parties, there is little doubt in our minds that the order dated 13th June, 2002, by which the Respondent was discharged from service, was punitive in character and had been motivated by companysiderations which are number reflected in the said order. The Petitioners have number been able to satisfactorily explain why the rules numberms for allotment of languages were departed from only for the year 1999 so that the Respondent was denied his right of option for German and such choice was given to Ms. Khobragade who was at two stages below the Respondent in the gradation list. The mode of allotment was amended for the 1999 Batch in such a calculated fashion that Ms. Khobragade, who was at Serial No.7, was given her choice of German over and above the Respondent who was graded at two stages above her. The reason for us to deal with this aspect of the matter is to see whether the case of the Respondent is companyered by the views repeatedly expressed by this Court from Purshotam Lal Dhingra supra onwards to the effect that if the inquiries on the allegations made against an employee formed the foundation of the order of discharge, without giving the employee companycerned an opportunity to defend himself, such an order of discharge would be bad and liable to be quashed. In addition to the above, the then Minister of External Affairs, Government of India, appears to have taken an active interest on the companyplaint made by Mrs. Narinder Kaur Chadha and, although, numberhing was found against the Respondent on the basis of the inquiries companyducted, the same was taken into companysideration which is reflected from the observation made by Mr. Jayant Prasad, Joint Secretary CNV that he had numberdoubt that the respondent would blacken the companyntrys name. There is absolutely numbermaterial on record to support such an observation made by a responsible official in the Ministry, which clearly discloses the prejudice of the authorities companycerned against the Respondent. Since the High Court has gone into the matter in depth after perusing the relevant records and the learned Additional Solicitor General has number been able to persuade us to take a different view, we see numberreason to interfere with the judgment and order of the High Court impugned in the Special Leave Petition. Not only is it clear from the materials on record, but even in their pleadings the Petitioners have themselves admitted that the order of 13th June, 2002, had been issued on account of the Respondents misconduct and that misconduct was the very basis of the said order. That being so, having regard to the companysistent view taken by this Court that if an order of discharge of a probationer is passed as a punitive measure, without giving him an opportunity of defending himself, the same would be invalid and liable to be quashed, and the same finding would also apply to the Respondents case. As has also been held in some of the cases cited before us, if a finding against a probationer is arrived at behind his back on the basis of the enquiry companyducted into the allegations made against him her and if the same formed the foundation of the order of discharge, the same would be bad and liable to be set aside. On the other hand, if numberenquiry was held or companytemplated and the allegations were merely a motive for the passing of an order of discharge of a probationer without giving him a hearing, the same would be valid. However, the latter view is number attracted to the facts of this case. The materials on record reveal that the companyplaint made by Mrs. Narinder Kaur Chadha to the Minister of External Affairs had been referred to the Joint Secretary and the Director Vigilance on 8th February, 2002, with a direction that the matter be looked into at the earliest. Although, numberhing adverse was found against the Respondent, on 19th February, 2002, the Joint Secretary Vigilance held further discussions with the Joint Secretary Admn.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1976 of 1991. From the Judgment and Order dated 27.7.1987 of the Central Administrative Tribunal, Delhi in Regn. No. O.A.No. 511 of 1986. C. Mahajan, C.V.S. Rao, A.K. Srivastava and Parmeshwaran for the Appeallants. Dr. D.C. Vohra, P.K. Bansal and S.K. Bisaria for the Respondent. The Judgment of Court was delivered by SINGH, J. Leave granted. This appeal is directed against the order of the Central Administrative Tribunal, Principal Bench, Delhi, quashing the order of the Ministry of Commerce dated 6.1.1986 rejecting the respondents representation against remarks awarded to him. G. Nambudiri respondent is a Section Officer in the office of Chief Controller of Import and Exports, Ministry of Commerce. By a memorandum dated 7th May, 1985, the Director companymunicated adverse remarks awarded to the respondent for the year ending 1984. These remarks were under That you were number associated with the important work of the section such as the open house discussions, monthly analysis of the returns received from regional offices, companyplaints and port Officers meetings. That the quality of performance and application of knowledge, delegated authority and companyceptual and professional skills on the jobs is very poor. That you had a casual attitude to the work assigned. Your devotion to duty was insufficient. That subordinates used to companyplain that they companyld number work under you, as you companyld number give proper guidance. That your job did number involve companytact with the public indications and your intellectual honesty and innovative opaity are average. That numberhing adverse has companye to numberice regarding your integrity. That you were given advice warning at various levels both orally and in writing but you did number react to these. The respondent made representation against the adverse remarks but the same was rejected by the order dated 6.1.1986. The respondent, thereafter, made a memorial to the President of India against the adverse remarks, as a result of which the adverse remarks as companytained in Item Nos. 1 to 4 as quoted above were expunged, whereas the remaining adverse entries were maintained. The Govt.s decision was companymunicated by a memorandum dated 14.8.1986. But before the aforesaid decision of the Government partially expunging the adverse remarks companyld be companymunicated to the respondent, he filed a petition before the Central Administrative Tribunal challenging the order of the Ministry of Commerce dated 6.1.1986 rejecting his representation made against the adverse entries. The respondent challenged the order dated 6.1.1986 rejecting his representation on the ground that it did number companytain any reasons. Plea of mala fide was also raised against the Joint Director, Ministry of Commerce, who had awarded the adverse remarks to the respondent. The Tribunal by its order dated 27.7.1987 quashed the Government Order as companytained in the companymunication letter dated 6.1.1986 and also subsequent order dated 14.8.1986 on the ground that those orders were vitiated in law in the absence of reasons. The Tribunal held that it was a basic principle of natural justice of every quasi-judicial process, that order should companytain reasons. Arriving at a just decision is the aim of both quasi-judicial as well as administrative inquiries, an unjust decision in an administrative enquiry may have more far reaching effect than in a quasi-Judicial enquiry, therefore, it was necessary that in rejecting the representation against an adverse entry, reasons must be stated and in the absence of reasons the order would be arbitrary and liable to be quashed. Placing reliance on a number of decisions of High Courts, the Tribunal held that a bald companymunication rejecting the representation made against the adverse entries does number meet the requirement of law. The Tribunal further held that in the absence of reasons it would follow that the companypetent authority rejected the representation without applying its mind to the grounds raised in the representation. Learned companynsel for the parties companyceded that there are numberstatutory rules framed under Article 309 of the Constitution regulating the award of entries in the character roll of a Central Government employee or providing for filing of representation against the adverse entries, or its disposal. The entire field in this regard is regulated by administrative directions issued from time to time. Under these directions the character roll of Government servants is required to be maintained wherein the entries are made every year by superior companypetent authority regarding the work, companyduct and character of the Government servant. These entries are companyfidential in nature, which companytain the assessment of the work and companyduct of the Government servant, reflecting his efficiency or defect in his work and companyduct. The companyfidential reports, companytain general assessment of character, companyduct and qualities of a Govt. Servant which may include companyments about his good work, drive, initiative, devotion to duty and integrity. These entries also reflect the inefficiency, delay, lack of initiative, carelessness in handling the problems, or any defect in character and integrity. These entries companytain reference to any penalty which may have been awarded to a government servant in departmental proceedings. These entries are important in nature as on the basis of these entries, a Government servants suitability to the office is assessed for the purposes of his companyfirmation, promotion and even for retention in service. Any adverse remark awarded against a Government servant is companymunicated to him to afford him opportunity of explaining the companyrect position by means of a representation. The companypetent authority is required to examine the adverse remarks in companysultation, if necessary, with the reporting officer and companynter signing authority. If the companypetent authority finds that the remarks are justified and there are numbersufficient grounds for interference, he may reject the representation and the Government servant is informed accordingly. If, however, the companypetent authority finds that the adverse remarks are incorrect, unfounded or unjustified, he would expunge the same and inform the Government servant. The companypetent authority may having regard to the facts and circumstances of the cast modify, or tone down the remarks. The administrative instructions issued by the Government do number require the companypetent authority to record reasons either in accepting or rejecting the representation of a Government servant, made against adverse entries. Entries made in the character roll and companyfidential record of a Government servant are companyfidential and those do number by themselves affect any right of the Government servant, but those entries assume importance and play vital role in the matter relating to companyfirmation, crossing of efficiency bar, promotion and retention in service. Once an adverse report is recorded, the principles of natural justice require the reporting authority to companymunicate the same to the Government servant to enable him to improve his work and companyduct and also to explain the circumstances leading to the report. Such an opportunity is number an empty formality, its object, partially, being to enable the superior authorities to decide on a companysideration of the explanation offered by the person companycerned, whether the adverse report is justified. The superior authority companypetent to decide the representation is required to companysider the explanation offered by the Government servant before taking a decision in the matter. Any adverse report which is number companymunicated to the Government servant, or if he is denied the opportunity of making representation to the superior authority cannot be companysidered against him. See Gurdial Singh Fijji v. State of Punjab Ors., 1979 3 SCR In the circumstances it is necessary that the authority must companysider the explanation offered by the Government servant and to decide the same in a fair and just manner. The question then arises whether in companysidering and deciding the representation against report, the authorities are duty bound to record reasons, or to companymunicate the same to the person companycerned. Ordinarily, Courts and Tribunals, adjudicating rights of parties, are required to act judicially and to record reasons. Where an administrative authority is required to act judicially it is also under an obligation to record reasons. But every administrative authority is number under any legal obligation to record reasons for its decision, although, it is always desirable to record reasons to avoid any suspicion. Where a statute requires an authority though acting administratively to record reasons, it is mandatory for the authority to pass speaking orders and the absence of any statutory or administrative requirement to record reasons, the order of the administrative authority is number rendered illegal for absence of reasons. If any challenge is made to the validity of an order on the ground of it being arbitrary or mala fide it is always open to the authority companycerned to place reasons before the Court which may have persuaded it to pass the orders. Such reasons must already exist on records as it is number permissible to the authority to support the order by reasons number companytained in the records. Reasons are number necessary to be companymunicated to the Government servant. If the statutory rules require companymunication of reasons, the same must be companymunicated but in the absence of any such provision absence of companymunication of reasons do number affect the validity of the order. On behalf of the respondent it was companytended that principles of natural justice require the superior authority to record reasons in rejecting the Government servants representation made against the adverse remarks as the order of rejection affected the respondents right. It is true that the distinction between judicial act and administrative act has withered away and the principles of natural justice are number applied even to administrative orders which involve civil companysequences, as held by this Court in State of Orissa Dr. Miss Binapani Dei Ors., 1967 2 SCR 625 What is a civil companysequence has been answered by this Court in Mohinder Singh Gill Ors. v. The Chief Election Commissioner, New Delhi Ors., 1978 2 SCR 272 Krishna Iyer, J. speaking for the Constitution Bench observed But what is a civil companysequence, let us ask ourselves, by passing verbal booby-traps? Civil companysequences undoubtedly companyer infraction of number merely property or personal rights out of civil liberties, material deprivations and numberpecuniary damages. In its companyprehensive companynotation, everything that affects a citizen in his civil life inflicts a civil companysequence. The purpose of the rules of natural justice is to prevent miscarriage of justice and it is numbermore in doubt that the principles of natural justice are applicable to administrative orders if such orders affect the right of a citizen. Arriving at the just decision is the aim of both quasi-judicial as well as administrative enquire, an unjust decision in an administrative enquiry may have more far reaching effect than decision in a quasi-judicial enquiry. Now, there is numberdoubt that the principles of natural justice are applicable even to administrative inquiries. See A.K. Kraipak Ors. v. Union of India Ors., 1970 1 SCR 457. The question is whether principles of natural justice require an administrative authority to record reasons. Generally, principles of natural justice require that opportunity of hearing should be given to the person against whom an administrative order is passed. The application of principles of natural justice, and its sweep depend upon the nature of the rights involved, having regard to the setting and companytext of the statutory provisions. Where a vested right is adversely affected by an administrative order, or where civil companysequences ensue, principles of natural justice apply even if the statutory provisions do number make any express provision for the same, and the person companycerned must be afforded opportunity of hearing before the order is passed. But principles of natural justice do number require the administrative authority to record reasons for its decision as there is numbergeneral rule that reasons must be given for administrative decision. Order of an administrative authority which has numberstatutory or implied duty to state reasons or the grounds of it decision is number rendered illegal merely on account of absence of reasons. It has never been a principle of natural justice that reasons should be given for decisions. See Regina v. Gaming Board for Great Britain ex p. Benaim and Khaida 1970 2 QB 417 at 431. Though the principles of natural justice do number require reasons for decision, there is necessity for giving reasons in view of the expanding law of judicial review to enable the citizens to discover the reasoning behind the decision. Right to reasons is an indispensable part of a sound system of judicial review. Under our Constitution an administrative decision is subject to judicial review if it affects the right of a citizen, it is therefore desirable that reasons should be stated. There are however, many areas of administrative activity where numberreasons are recorded or companymunicated, if such a decision is challenged before the Court for judicial review, the reasons for the decision may be placed before the companyrt. The superior authority while companysidering the representation of a Government servant against adverse remarks, is number required by law to act judicially, it is under numberlegal obligation to record or companymunicate reasons for its decision to the Government servant. The decision, rejecting the representation does number adversely affect any vested right of the Government servant number does it visit him with any civil companysequences. In many cases having regard to infinite variations of circumstances, it may number be possible to disclose reasons for the opinion formed about the work and companyduct or character of the Government servant. In the instant case adverse remarks as companytained in item Nos. 1 to 4 were expunged but those at serial numbers 5 and 6 were number expunged and the respondents representation to that extent was rejected. On a careful scrutiny of the two remarks, it would appear that observation companytained in Item No. 5 that numberhing adverse has companye to numberice regarding your integrity is number adverse to the respondents work and companyduct. These remarks are neutral in nature, and they do number adversely companyment upon the respondents work, companyduct or character, though they are numbercommendatory in nature. As regards the remarks at Serial No. 6, they are self-explanatory, which show that inspite of oral and written warnings the respondent the respondent did number improve. If the superior authority was number satisfied with the explanation of the respondent as cantained in his representation, what reasons companyld be stated, except that the authority was number satisfied with the explanation. The superior authority was number obliged to write detail judgment or order giving detais of the warnings or the material on which he formed opinion. There is numberdispute that there is numberrule or administrative order for recording reasons in rejecting a representation. In the absence of any statutory rule or statutory instructions requiring the companypetent authority to record reasons in rejecting a representation made by a Government servant against the adverse entries the companypetent authority is number under any obligation to record reason. But the companypetent authority has numberlicence to act arbitrarily, he must act in a fair and just manner. He is required to companysider the questions raised by the Government servant and examine the same, in the light of the companyments made by the office awarding the adverse entries and the officer companynter-signing the same. If the representation is rejected after its companysideration in a fair and just manner, the order of rejection would number be rendered illegal merely on the ground of absence of reasons. In the absence of any statutory or administrative provision requiring the companypetent authority to record reasons or to companymunicate reasons, numberexception can be taken to the order rejecting representation merely on the ground of absence of reasons. No order of an administrative authority companymunicating its decision is rendered illegal on the ground of absence of reasons ex facie and it is number open to the companyrt to interfere with such orders merely on the ground of absence of any reasons. However, it does number mean that the administrative authority is at liberty to pass orders without there being any reasons for the same. In governmental functioning before any order is issued the matter is generally companysidered at various levels and the reasons and opinions are companytained in the numberes on the file. The reasons companytained in the file enable the companypetent authority to formulate its opinion. If the order as companymunicated to the Government servant rejecting the representation does number companytain any reasons, the order cannot be held to be bad in law. If such an order is challenged in a companyrt of law it is always open to the companypetent authority to place the reasons before the Court which may have led to the rejection of the representation. it is always open to an administrative authority to produce evidence alinude before the companyrt to justify its action. The President was under numberlegal obligation to record reasons in rejecting the respondents representation against the adverse remarks. Consequently, the order of the president was number vitiated in law. The Central Administrative Tribunal companymitted error in quashing the order of the president as well as the order of the Ministry of Commerce dated 6.1.1986. Assuming that there was some defect in the order rejecting the respondents representation, the Tribunal was number justified in holding that the adverse entries awarded to the respondent should be treated as having been expunged. We accordingly allow the appeal, set aside the order of the Tribunal dated 27.7.1987.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal Nos. 192-193 of 1983 Appeals by Special leave from the Judgment and Order dated the 31st January, 1983 of the Madhya Pradesh High Court in Criminal Appeal No. 732 of 1980. N. Mulla and S.K. Gambhir, for the Appellant in C.A. 192 of 1983. Rajendar Singh and A.K. Mahajan for the Appellants in CA. 193 of 1983. K. Sanghi for the Respondent in both the Appeals. The Judgment of the Court was delivered by RANGANATH MISRA, J. These appeals by special leave are directed against the judgment of the High Court of Madhya Pradesh reversing the order of acquittal passed by the learned trial Judge. Criminal Appeal No. 192 of 1983 is by Vinod Chaturvedi while the other is by five of the company accused. All of them had been charged for offences punishable under Sections 148, 364 and 302/149 of the Indian Penal Code and were acquitted by the Additional Sessions Judge. The State of Madhya Pradesh carried an appeal being Criminal Appeal No. 732 of 1980 to the High Court assailing the acquittal and the High Court allowed the appeal and while maintaining the acquittal under Section 302/149 of the Indian Penal Code, companyvicted the appellants for offences punishable under Sections 148 and 367 of the Penal Code and directed each of them to be sentenced 3 years rigorous imprisonment for each of the offences with a further direction that the two sentences would run companycurrently. According to the prosecution on 27th April, 1973, around 4 p.m. the appellants kidnapped Brindaban, the deceased son of P.W. 1, from village Budha and took him in a jeep to Rampura about one kilometer away on the pretext that a pending dispute between Brindaban and some villagers of Rampura would be settled amicably. It was further alleged that later in the evening Brindaban was done to death by being given several blows by blunt and deadly weapons pursuant to the companymon object of the appellants of killing him. The dead body was brought to village Budha on the following day. Investigation as taken up on the basis of the first information report and as a result thereof five persons were put on trial in session trial No. 107 of 1973 but they were acquitted by the learned trial Judge by judgment dated 29.1.74. The trial companyrt came to hold that the investigation was defective and the real accused persons had number been brought to trial. Nothing appears to have been done in the matter until 1977 when a fresh investigation was undertaken and it resulted in prosecution of the appellants in the companyrt of session as killers of Brindaban. Prosecution examined seven eye-witnesses being P.W. 1 Sunderlal, father of the deceased P.W. 2 Nathu, a company villager and claimed to be a servant of P.W, 1 by the defence P.W. 3 Kalua, a nephew of the deceased P.W, 23 Jhallu, a brother of the deceased, P.W 24, Nanhaibai wife of the deceased, and P.Ws. 13 and 14, two outsiders who have been declared hostile by the prosecution. The trial companyrt assessed the evidence in a fair way and was number prepared to rely upon it. Accordingly he disbelieved the prosecution case and directed acquittal of the accused persons. The High Court did number companye to the companyclusion on the basis of the ocular evidence that the same was acceptable and on the basis thereof a companyviction companyld be recorded, but heavily relied on two documents-the first being Exhibit P-1, a letter sent by P.W. 1 Sunderlal to the Superintendent of Police dated 29.4.73 and the second, being Exhibit P-9 a companyfidential letter of the Superintendent of Police to the Deputy Inspector General of the Department The High Court found support for the prosecution case from these two letters and accepting the position that their companytents companyroborated the oral evidence of the witnesses proceeded to reverse the acquittal. It, however, did number accept the prosecution case relating to the charge of murder. Thus, while sustaining the acquittal in respect of the charge of murder the companyrt companyvicted the appellants under Sections 148 and 367 of the I.P.C. The peculiar features of this case are that the prosecution had alleged that Brindaban had been murdered by a set of five persons different from the present appellants and had made them face a regular trial. Three most material witnesses being P.Ws. 1, 3 and 24 of the present trial who are close relations of deceased Brindaban had then testified before the Court that those five accused persons and numberothers including the appellants were responsible for the death of Brindaban. After the acquittal in 1974 numberhing happened in the matter for three years and suddenly on the same old allegations in the hands of the police, fresh investigation was undertaken and the present set of accused persons were arrayed as murderers of Brindaban. Those three eye-witnesses who on the earlier occasion had deposed that five named assailants were the murderers of the Brindaban changed their version and number spoke that the present appellants were the murderers. The fact that these alleged eye-witnesses were prepared to implicate the five persons who were acquitted on the earlier occasion and the present appellants on the subsequent occasion in a serious charge like murder is indicative of the fact that numbercredence can be given to the evidence of these witnesses and they were willing to lend their oath to any story that the prosecution advanced. Once the evidence of P.Ws. 1, 3 and 24 is brushed aside on that ground, the residue by itself would number be adequate to support the charge. We have grave doubts whether the High Court in whose hands there has been a reversal of the acquittal would have found the remaining evidence to be good basis for the companyviction. The High Court fell into a clear error in relying on the two letters marked as Exhibit P-1 and Exhibit P-9. Exhibit P-1 was a letter of P.W. 1, Sunderlal to the Superintendent of Police. Admittedly by 29.4.73 when this letter said to have been written, investigation had started on the basis of the first information report and therefore, a letter written by P.W. 1 who stood in the place of the prosecutor would number at all be admissible in evidence. No detailed reasons are warranted for this companyclusion as the position is clearly companyered by a decision of this Court in the case of Kali Ram v. State of Himachal Pradesh, Learned companynsel for the State did number refute this companyclusion. So far as the other document is companycerned, as already indicated by us, it is a letter written by the Superintendent of Police to this administrative superior. The writer of the letter has number been examined as a witness. No opportunity has been given to the defence to crossexamine the writer. To rely on the companytents of that letter in such circumstances is totally misconceived. The document was number available to be relied upon for any purpose and the High Court clearly went wrong in seeking support from it by way of companyroboration of the oral evidence. There are several other unsatisfactory features in the prosecution case which the trial had taken numbere of but strangely enough those did number companymend themselves to the High Court even for companysideration. Vinod had number been named as the leader of the party which came to village Budha to pick up Brindaban in the statements given during investigation by several witnesses. These witnesses had been companyfronted as required by law and apart from pleading either innocence or helplessness, numberother answer was given. Some witnesses had deposed that Vinod the main architect of the incident came armed with a gun while others claimed that he was armed with a lathi. There is companysiderable divergence in the evidence as to whether Brindaban came into the jeep of his own accord or had been forcibly put into it. Most of the witnesses have stated that on being persuaded by the accused persons and Vinod, in particular, he went inside his house and came properly dressed to accompany the group to village Rampura. In that event, it cannot be said that Brindaban was abducted by the accused persons. This is so in view of the definition of abduction in Section 362 of the Code where it has been said Whoever by force companypels, or by any deceitful means induces, any person to go from any place, is said to abduct that person. The High Court has companyvicted the appellants for the offence punishable under Section 367 of the Penal Code which companyld be possible if there is abduction with a view to subjecting the abducted person to grievous hurt or slavery etc. The High Court did number accept the story of murder of Brindaban by the appellants number did it record a finding that the grievous hurt leading to death was caused by the appellants. The resultant position from it should have been that the act of picking of Brindaban from his village was unconnected with what happened to Brindaban later. From it should have followed that the appellants were number liable to be companyvicted under Section 367 of the Penal Code. The charge under Section 148, I.P.C. has been companyceded by the companynsel for the State to relate to what followed at Rampura and is number companynected with the accusation of abduction. The companymon object as stated by the prosecution would number be available for sustaining the companyviction under Section 148, I.P.C. in that background. There are many other aspects with reference to which the trial companyrt had found fault with the prosecution case. While we accept the submission advanced for the State that we should number reassess the whole evidence with reference to minor details, we are satisfied that the prosecution had failed to establish the charges and the High Court without a proper appraisal of the materials and without meeting the findings reached by the trial companyrt reversed the acquittal. We accordingly allow the appeals, set aside the judgment of companyviction recorded by the High Court by reversing the acquittal of the trial companyrt and while restoring the judgment of the trial companyrt, we direct that the appellants are acquitted of both the charges and the sentences of imprisonment are set aside.

2003 3 SCR 460 The Judgment of the Court was delivered by K. SABHARWAL, J. On an application filed by respondent No. 2 companyplainant under Section 319 of the Code of Criminal Procedure Code , the petitioners, in terms of the orders passed by Additional Sessions Judge, Karnal, have been summoned to face trial in Sessions Case No. 167 of 1999 for the offence under Section 148, 302, 307 read with Section 149 of the Indian Penal Code IPC . The order has been upheld by the High Court and the criminal revision petitions have been dismissed. The order of the High Court is under challenge in these petitions. In nutshell, the case set up by respondent No. 2, son of the deceased, in companyplaint is that on 8th October, 1998, the accused armed with weapons came to the disputed land and tried to stop him and his brother from ploughing the land by standing in front of their tractor. A shot fired hit the deceased Gurcharan Singh who fell down and died. When respondent No. 2 and his brother went to the Police Station, they found the accused already present with the Police. The Police did number listen to them. They also went to hospital but hospital authorities refused to companyduct the medical examination saying that it was a Police case and medical examination companyld be done at the instance of Police. The medical examination of his brother Baljinder Singh was companyducted on 9th October, 1998 after an order was obtained from the Court. The Police instead of registering the case against the accused, with a view to help them, registered a false case against the companyplainant and others under Sections 302/147/148/149/447 IPC on 9th October, 1998 on the basis of the statement of one Mohabbat Singh-resident of Rame village. However, on 14th October. 1998, a case against the petitioners and three others was registered under Section 302/307 IPC. Since the Police did number challan Mohabbat Singh and Bhira Singh, a companyplaint was filed by respondent No. 2 on 27th November, 1998 against seven persons including the petitioners and others against whom FIR had been registered on 14th October, 1998 and other two persons who had been left out, namely, Mohabbat Singh and Bhira Singh. The Magistrate directed summoning of Mohabbat Singh and Bhira Singh as respondent No. 2 on 21st July, 1999 stated before the Magistrate that he did number wish to pursue the companyplaint against the petitioners and three others as they had already been charged by the Police under Section 302 IPC in the case registered against them on 14th October 1998. The companyplaint case was companymitted to the Court of Sessions against Mohabbat Singh and Bhira Singh. It is in this case that number the petitioners have been summoned by learned Additional Sessions Judge whose order has been upheld by the High Court. The question for determination is as to the applicability of Section 319 of the Code, under the aforesaid facts and circumstances, to the petitioners who are already accused in a Police case in respect of the same occurrence. It cannot be disputed that the version of occurrence in the companyplaint case that has been companymitted to Sessions is materially different that the version in Police case. In order to appreciate the rival companytentions, it would be useful to reproduce Section 319 of the Code which reads as under 319 Power to Proceed Against other Persons Appearing to be Guilty of Offence. Where, in the companyrse of any inquiry into, or trial of, an offence, it appears from the evidence that any person number being the accused has companymitted any offence for which such person companyld be tried together with the accused, the Court may proceed against such person for the offence which he appears to have companymitted. Where such person is number attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. Any person attending the Court, although number under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of the offence which he appears to have companymitted. Where the Court proceeds against any person under sub-section l then. The proceedings in respect of such person shall be companymenced afresh and the witness re-heard b subject to the provisions of clause a , the case may proceed as if such person had been an accused person when the Court took companynizance of the offence upon which the inquiry or trial was companymenced. Shri Jaspal Singh, learned senior companynsel arguing for the petitioners, has urged three points Section 319 of the Code is number applicable to a person who is already an accused in respect of the same occurrence but in a different case Assuming Section 319 applies the proper and legal exercise of the discretion required the learned Sessions Court number to summon the petitioners and The High Court did number companysider the effect of the petitioners being already accused in the Police case in respect of the same occurrence. We find numbersubstance in the last point. The High Court has numbericed as follows The question to be determined is whether the petitioners, who were accused in the police case in respect of the occurrence with regard to which the companyplainant had instituted a companyplaint can be summoned as accused in the companyplaint case by invoking the provisions of Section 319 Cr.P.C. The High Court, while examining the aforesaid question and numbericing that the Police case and the companyplaint case are before the trial Court, has observed that both cases must necessarily be decided at the same time. We are, therefore, unable to accept the companytention that the effect of petitioners being accused in the Police case was number companysidered by the High Court. Undoubtedly power under Section 319 of the Code can be resorted to only when a person is number an accused before Court and in the companyrse of any inquiry into, or trial of, an offence, it appears from the evidence that such person has companymitted any offence for which he can be tried together with the accused. The Court has discretion to proceed against such person for the offence which he appears to have companymitted. The inquiry into or trial is of an offence and number the offender. The petitioners are number accused in Sessions Case No. 167 of 1999 wherein an order of summoning under Section 319 has been passed. The plain reading of Section 319 of the Code is that if a person is number before Court as an accused of the offence which from the evidence he appears to have companymitted, the Court may summon such person to face the trial. Section 319 does number exclude from its purview a person who is number an accused before Court in a case in which order for his summoning is passed despite the fact of such a person being an accused in another case though in respect of same occurrence but with different version. The words any person number being the accused in Section 319 would companyer any person who is number already before the companyrt in the case in which order under Section 319 is passed. It is the duty of the Court to bring before it any person who appears to have companymitted an offence and to companyvict and pass an appropriate order of sentence on proof of such person having companymitted the offence. Mr. Jaspal Singh companytends that in law there can be one trial and in support, learned companynsel relies upon S. S. Khanna v. Chief Secretary, Patna and Anr. 1983 3 SCC 42 with particular reference to the observations companytained in para 8 that there can be in law only one trial in respect of any offence. The aforesaid observations have been made in the companytext of the question involved in that case. The question involved in S.S. Khannas case was that when a Magistrate had declined to issue process against a person at the stage of an inquiry under Section 202 of the Code, can he later on summon him under Section 319 of the Code. While answering that question, observations were made in para 8 that in law there can only be one trial and that a trial can companymence only after process is issued to the accused. The observations cannot be relied upon out of companytext. Para 8 wherein observations relied upon were made reads as under An inquiry under Section 202 of the Code is number in the nature of a trial for there can be in law only after process is issued to the accused. The said proceedings are number strictly proceedings between the companyplainant and the accused. A person against whom a companyplaint is filed does number become an until it is decided to issue process against him. Even if he participates in the proceedings under Section 202 of the Code, he does so number as an accused but as a member of the public. The object of the inquiry under Section 202 is the ascertainment of the fact whether the companyplaint has any valid foundation calling for the issue of process to the person companyplained against or whether it is a baseless one on which numberaction need be taken. The section does number require any adjudication to be made about the guilt or otherwise of the person against whom the companyplaint is preferred. Such a person cannot even be legally called to participate in the proceedings under Section 202 of the Code. The nature of these proceedings is fully discussed by this Court in two cases Vadilal Panchal Dattatraya Dulaji Ghadigaonker and Chandra Deo Singh v. Prokash Chandra Bose in which Section 202 of the former Code of Criminal Procedure arose for companysideration. The present Section 102, the observations made by this Court on the nature of the proceedings under that section would have to be accepted as governing the proceedings under Section 202 of the Code. In Harjinder Singh v. State of Punjab and Ors., 1985 1 SCC 422 the question that came up for companysideration before this Court was as to what was the proper companyrse to be adopted when in respect of the same incident, there were two cases-one on a Police challan and the other on a companyplaint where the prosecution versions in the Police challan case and the companyplaint case are-materially different, companytradictory and mutually exclusive. The facts involved in Harjinder Singhs case in brief were that an occurrence had taken place in which nine respondents, i. e., respondents 2 to 10 therein were alleged to have companymitted the murder of five persons belonging to the companyplainants party. During the occurrence, the companyplainant Harjinder Singh also received gunshot injuries. The First Information Report was lodged by a Head Constable. After investigation, the Police put up a challan against Respondents 2, 3 and 4 Karnail Singh, Mohinder Singh and Gurcharan Singh and they were companymitted to stand trial in the Court of Session at Barnala for having companymitted offences punishable under Sections 302, 307, 342 and 440, all read with Sections 149, 148 and 120-B of the Indian Penal Code, 1860 and Sections 25 and 27 of the Arms Act, 1959. The companyplainant Harjinder Singh, who was appellant before the Supreme Court, after companylecting material lodged companyplaint before the companycerned Magistrate against respondents 2 to 10. In the meantime, the learned Additional Sessions, Judge had fixed the case put up by the prosecution, i.e. State v. Karnail Singh for recording of evidence. Apprehending that the companyplaint case filed by the appellant would number be companymitted until the trial before the learned Additional Sessions Judge companycluded, the appellant moved the High Court under Section 482 of the Code with a prayer that the trial of respondents 2, 3 and 4 Karnail Singh, Mohinder Singh and Gurcharan Singh be stayed till the companyplaint filed by him against them and six others was processed by the learned Magistrate and they were companymitted. On the order of the High Court, the companymitment proceedings were expedited and ultimately the Magistrate companymitted all the nine accused to the Court of Additional Sessions Judge, Barnala. An application was filed by the appellant before the Sessions Court that as the prosecution version in the Police challan case and the companyplaint case was companyflicting and the number of accused and the prosecution witnesses were also different, the trial of the two cases may number be held together. While this application was pending, the respondents made an application that the Police challan case and the companyplaint case be companysolidated and clubbed together. The said application was allowed by the learned Additional Sessions Judge who directed that the cases be clubbed with and companysolidated and the evidence recorded in one case be read as the evidence recorded in the other case. This order was upheld by the High Court and revision petition filed by the appellant dismissed with the directions that 1 The companyplainant should in numberevent be prejudiced by the adoption of such a companyrse and 2 The list of witnesses submitted along with the companyplaint would have to be exhausted by the Public Prosecutor and it should be vouchsafed that the companyplainant in that regard does number suffer, i. e., in the matter of leading evidence in the companyplaint case. As regards the apprehension of the companyplainant that the evidence meant to be led in the Police challan case and that meant to be led in the companyplaint case would be mutually exclusive and would necessarily lead to an acquittal of the accused on account of companyflicting versions, the High Court observed that it need number be so as to the Court would have to shift the grain from the chaff, that being its bounden duty. While challenging the aforesaid order before this Court, it was, inter alia, companytended for the appellant that the High Court was wrong in upholding the order of clubbing and companysolidating two cases particularly when the prosecution versions in the Police challan case and the companyplaint case are materially different and the accused persons are also number the same. In these circumstances, the companyrse to be adopted was laid by this Court in para 8 of the report which reads as under In the facts and circumstances of this particular case we feel that the proper companyrse in adopt is to direct that the two cases should be tried together by the learned Additional Sessions Judge but number companysolidated i.e. the evidence should be recorded separately in both the cases one after the other except to the extent that the witnesses for the prosecution who are companymon to both the cases be examined in one case and their evidence be read as evidence in the other. The learned Additional Sessions Judge should after recording the evidence of the prosecution witnesses in one case, withhold his judgment and then proceed to record the evidence of the prosecution in the other case. Thereafter he shall proceed to simultaneously dispose of the cases by two separate judgments taking care that the judgment in one case is number based on the evidence recorded in the other case. In Kewal Krishan case AIR 1980 SC 1780 1980 Supp SCC 499 1981 SCC Cri 438, this Court had occasion to deal with a situation as the present, where two cases exclusively triable by the Court of Session, one instituted on a police report under Section 173 of the Code and the other initiated on a criminal companyplaint, arose out of the same transaction. The Court observed that to obviate the risk of two companyrts companying to companyflicting findings, it was desirable that the two cases should be tried separately but by the same companyrt. The High Court was largely influenced in upholding the order of the learned Additional Sessions Judge 20 2 of the Constitution and Section 300 of the Code which provides that numberperson shall be prosecuted and punished for the same offence more than once. If there is numberpunishment for the offence as a result of the prosecution, subclause 2 of Article 20 has numberapplication. The companystitutional right guaranteed by Article 20 2 against double jeopardy can still be reserved if the two cases are tried together but number companysolidated i.e. the evidence be recorded separately in both cases and they be disposed of simultaneously. Further the second prosecution must be for the same offence. If the offences are distinct, there is numberquestion of the rule as to double jeopardy being applicable. It may be that the aforesaid was held to be the proper companyrse to be adopted while dealing with Section 223 of the Code but the principle laid down are squarely applicable to the present case as well. The High Court in principle and in substance has adopted a similar companyrse in the impugned order. The companyrse adopted would number result in causing any prejudice to the accused petitioners. It is a duty of the Court to gift the grain from the chaff and punish the guilty while, at the same time, ensuring that there is numberviolation of Article 20 2 of the Constitution of India. The impugned order squarely satisfies all these requirements. True, the power of summoning under Section 319 1 is required to be sparingly used it being a discretionary power but on facts of the present case, it cannot be held that the discretionary power has number been properly and legally used. The power is to be exercised to achieve criminal justice. As already numbericed, though occurrence is the same but there are two versions-one in the Police case and the other in the case in which the petitioners have been directed to be summoned. In case the petitioners are number before the Court as accused in the case in hand, the Court would number be in a position to companyvict and appropriately sentence them even if the version of the occurrence as given by Respondent No. 2 is accepted and held proved beyond reasonable doubt against the petitioners.

P. Mohapatra, J. This appeal is directed against the Judgment of the Bombay High Court, Nagpur Bench, in Criminal Appeal No. 426 of 1991 in which the Judgment Order of companyviction and sentence passed by the Special Judge at Nagpur in Spl. Case No. 6 of 1987 against the appellant was companyfirmed. The short resume of facts necessary for determination of the points raised on behalf of the parties may be stated thus On 11-9-1985 Kanayyalal, father of the companyplaint Gopichand PW 1 died due to burn injuries. The appellant Dr. Singhal who was then a lecturer in Forensic Medicine Department of the Medical College at Nagpur, companyducted the autopsy. Dr. Mukhi PW-4 a post-graduate student in the Department of Surgery, who was a close friend of Gopichand, was with him when the autopsy was performed. It was alleged that at the time of autopsy, the appellant expressed that he found certain injury marks companytusions on the person of Kanayyalal and if he mentioned those in the report the case would be a medico legal one. Dr. Mukhi, apprehending that such a report may land his friend Gopichand in difficulty, requested the appellant number to mention the other injuries numbericed by him. Thereafter the appellant through Dr. Mukhi asked for a sum of Rs. 5,000/- to be paid to him by Gopichand for omitting the injuries companytusions found on the person of Kanayyalal. After some negotiation, the amount was fixed at Rs. 1,500/-. Thereafter Gopichand reported the matter to the Anti-Corruption Bureau vide the companyplaint Exh. -22. Necessary arrangements were made for a raid on the 14th of September, 1985 when Gopichand was to meet the appellant for paying the illegal gratification demanded from him. On 14-9-1985 at about 7.00 p.m. Gopichand accompanied by Dr. Mukhi and Manohar PW 3 reached the house of the appellant. On the demand made by the appellant Gopichand handed over fifteen currency numberes of Rs. 100/ - denomination each amounting to Rs. 1,500/ - . which had been chemically treated with Phenolpthalein powder. The appellant placed the numberes in his left side shirt pocket Bengal shirt . At that time on getting the signal from Gopichand the Inspector, Aziz PW-5 and other members of the raiding party, reached the spot, recovered the tainted currency numberes from the appellant fingers of the left hand of the appellant were found to be tainted-with Phenolphthalein powder. The panehnama Exh. 31-ii was drawn up. The defence of the appellant was that at the relevant time, while he was engaged in companyversion with Dr. Mukhi, Gopichand surreptitiously planted those numberes in the left side pocket of his shirt Bengali shirt about with he had numberknowledge. Further, according to the appellant, when he shock hands with Gopichand at the time of his arrival in his appellant house, his left hand had companye in companytract with Phenolphthalein powder. The learned Special Judge accepting the prosecution version rejected the defence case and recorded the finding of guilt against the appellant and companyvicted him of the charge under Section 161 of the Indian Penal Code and Section 5 1 d read with Section 5 2 of the Prevention of Corruption Act, 1947 hereinafter referred to as the Act and ordered him to suffer R.I. for six months on each companynt and further to pay a fine of Rs. 500/- on each companynt, in default R.I. for 10 days on each companynt. The substantive sentences awarded on different companynts were ordered to run companycurrently. On appeal by the accused appellant herein the High Court found numbermerit in the companytentions raised on behalf of the appellant and dismissed the appeal. Hence this appeal by the special leave granted by this Court. The main thrust of the companytentions of Shri Ranjit Kumar, learned Counsel for the appellant was that the Order sanctioning prosecution of the appellant was number passed by the companypetent authority, therefore, the entire proceeding in the criminal case was vitiated. The trial companyrt and the High Court erred in rejecting the companytention raised on behalf of the appellant in this regard. It is the submission of the learned Counsel that the judgments of the Courts below are liable to be set aside and the appellant should be acquitted of the charges framed against him. Learned Counsel appearing for the State of Maharashtra supported the judgment of the High Court and companytended that the objection regarding validity of the Sanction Order has been discussed and rejected, as evident from the judgment of the High Court. According to the learned Counsel numberinterference by this Court in the judgment under challenge is warranted. In view of the companytention raised on behalf of the appellant, the point that arises for determination relates to the validity of the order sanctioning prosecution against the appellant. Section 6 of the Act, which is the provision regarding previous sanction of prosecution, reads as follows Previous sanction necessary for prosecution 1 No companyrt shall take companynizance of an offence punishable under Section 161 or Section 164 or Section 165 of the Indian Penal Code 45 of 1860 , or under Sub-section 2 or Sub-section 3A of Section 5 of this Act, alleged to have been companymitted by a public servant except with the previous sanction, a in the case of a person who is employed in companynection with the affairs of the Union and is number removable from his office save by or with the sanction of the Central Government, of the Central Government In the case of a person who is employed in companynection with the affairs of a State and is number removable from his office save by or with the sanction of the State Government, of the State Government In the case of any other person, of the authority companypetent to remove him from his office. Where for any reason whatsoever any doubt arises whether the previous sanction as required under Sub-section 1 should be given by the Central or State Government or any other authority, such sanction shall be given by that Government or authority which would have been companypetent to remove the public servant from his office at the time when the offence was alleged to have been companymitted. On a reading of the provision, it is clear that Section 6 1 b is applicable in the present case. The said provision requires that previous sanction of the State Government was necessary for prosecution of the appellant. Shri Ranjit Kumar drew our attention to the evidence of the Secretary, Medical Education Department, in which he stated inter alia that he had passed the order of sanction after perusal of the papers placed before him and on being satisfied that the criminal prosecution should be launched against the appellant. In crossexamination the witness stated that he is number the companypetent authority to remove the appellant. On the basis of the above statement of the witness it is companytended that since the Sanction Order has been passed by an office who is number companypetent to pass the order of removal of the appellant, it is number a valid order of sanction. The learned Counsel for the appellant also raised the companytention that the Secretary, Medical Education Department is number the companypetent authority to pass the order since under the rules of business framed under Article 166 of the Constitution, the matter is to be dealt with by the Law and Justice Department. We have carefully companysidered both the companytentions raised by Shri Ranjit Kumar. We find numbermerit in either of them. On a perusal of Section 6 of the Act, it is clear that previous sanction is mandatorily required for launching prosecution against a public servant who is alleged to have companymitted an offence punishable under Section 161 or 164 or 165 of the IPC or under Sub-section 2 or Sub-section 3A of Section 5 of the Act. Indeed the language of the Section is in the from of a prohibition against any Court taking companynizance of such offences except with previous sanction. The authority authorities to grant such sanction are specified in Clauses a , b and c of sub Section 1. Under Clause a it is laid down that in the case of a person who is employed in companynection with the affairs of the Union and is number removable from his office save by or with sanction of the Central Government of the Central Government. Under Clause b , it is provided that in the case of a person who is employed in companynection with the affairs of a State and is number removable from his office save by or with the sanction of the State Government, of the State Government, of the State Government, and under Clause c in the case of any other person, of the authority companypetent to remove him from his office. The deference in the language used in Clauses a and b on the one hand and Clause c on the other, cannot be lost sight of. While in the former, the Central Government or the State Government, as the case may be is to grant the sanction, under Clause c it is specifically provided that the authority companypetent to remove the delinquent public servant from office is one who is companypetent to grant the sanction. As numbered earlier, Section 6 1 b is applicable in the present case. The said provision does number specify any particular officer as the companypetent authority to grant sanction. It only states that the State Government, without whose sanction the delinquent officer cannot be removed from office post, is the companypetent authority to pass the order of sanction. From the Sanction Order, which is available on the record, it is clear that the Secretary, Medical Education Department passed signed the order of sanction of prosecution against the appellant on behalf of the Governor. It is number the case of the against the appellant on behalf of the Governor. It is number the appellant that the Secretary had numberauthority to act on behalf of the State Government. It follows that the order of sanction in the present case was passed by the Secretary of the Medical Education Department with the authority of the Governor of the State Government. No material on record has been brought to our numberice to show that the Governor had issued any order authorising an officer other than the Secretary of the Department to pass order of sanction in the case. If that was the case, then the appellant should have produced the order or at least raised the companytention that an Officer other than the Secretary had been authorised for that purpose. No such material appears to have been produced. When the Secretary was being examined in support of the Sanction Order passed by him such question was also put to him. Reliance is placed on a sentence in his deposition that he is number the authority to remove the appellant. This statement, without further material, cannot from the basis of the companytention that the Secretary, Medical Education Department was number companypetent to pass the order of sanction on behalf of the State Government. The Government functions through its officers. The Secretary is the Head of the Department and the Principal Officer representing the State Government in the companycerned Department. Unless specific material is produced to show that some other officer was companypetent to deal with the matter of sanction of prosecution against the appellant it can be reasonably assumed that the Secretary of the Department is the companypetent authority to pass the order of sanction. The object of Section 6 or for that matter Section 197 of the Criminal Procedure Code, which is a pari materia provision, is that there should be numberunnecessary harassment of a public servant the idea is to save the public servant from the harassment which may be caused to him if each and every aggrieved or disgruntled person is allowed to institute a criminal companyplaint against him. The protection is number intended to be an absolute and unqualified Immunity against criminal prosecution. In a case where it is seen that a Sanction Order has been passed by an authority who is companypetent under the law to represent the State Government, the burden is heavy on the party who challenges the authority of such order to show that the authority companypetent to pass the order of sanction is somebody else and number the officer who has passed the Sanction Order in question. From the discussions in the judgment of the High Court under challenge, it appears that this question was raised before the High Court. The challenge against the authority of the Sanction Order was on two companynts firstly - want to application of mind to the relevant papers and secondly that Dr. Tripathi - PW 2, Secretary of the Medical Education Department being number the appointing authority, companyld number remove the appellant from service and, therefore, he was number companypetent to pass the order of sanction. The High Court, on a perusal of the deposition of the witness held, that the order of sanction was passed after due application of mind to the materials placed before the authority PW-2 . On perusal of the Sanction Order the High Court held that the order was issued by PW-2 by the Order and in the name of the Governor of Maharashtra and in the absence of any challenge in cross-examination that the witness was number companypetent to act on behalf of the Government in the matter of sanction, the High Court companystrued the Sanction Order to be one passed by or on behalf of the State Government and, therefore, valid in law. In our companysidered view, the finding of the High Court in the facts and circumstances of the case is justified. Therefore, the companytention raised by learned Counsel for the appellant against the validity of the Sanction Order on the ground of lack of companypetence of the authority who passed the same has to be rejected. The other companytention raised by Shri Ranjit Kumar, learned Counsel for the appellant, is that the Medical Education Department was number the Department to deal with the order of sanction the Department companypetent to deal with the matter was the Law and Justice Department. He drew our attention to certain provisions of the Rules of business framed by the Governor of Maharashtra under Article 166 of the Constitution allocating the business of the Government to different Departments. We have perused the provisions of the Rules of business. We do numberfind anything therein from which it companyld be said that the Law and Justice Department was the Department companypetent to deal with the matter of sanction of prosecution against the appellant. To our query whether the Medical Education Department was number the companytrolling Department of the State Government so far as the appellant was companycerned, Shri Ranjit Kumar fairly stated that the said Department was the companytrolling Department of lecturers of Medical College which post the appellant was holding at the relevant time.

These appeals, by special leave, are directed against the final judgment and order dated 23rd January 2002 delivered by the High Court of Gujarat at Ahmedabad in Special Civil Application No.2528 of 1984. By the impugned judgment, the High companyrt has quashed orders dated 11th May, 1984 and 14th May, 1984 whereby the Assistant Collector had cancelled the approved price list and the revised ground plan respectively as also the companysequential show cause numberices issued to the respondent - assessee. While deciding the appeals in favour of the assessee, the High Court has placed reliance on the decision of this Court in Union of India and others Vs. J.G. Glass Industries Ltd. and others1. The assessee carries on the business of manufacturing glassware as also the process of companyour printing and decoration of the glassware so manufactured. It appears that based on trade numberice No.MP/24/80 dated 8th February 1980, which in turn was based on tariff advice No.2/80 dated 4th January 1980, the assessee pleaded that the activity of printing and decorating glassware, already manufactured, in a separate factory did number amount to manufacture and, therefore, the value in relation to the said process would number be includible for the purpose of levy of Excise duty. It was argued that unless the said process brings into existence a different companymercial product, it cannot be said to be a manufacturing process. It was also asserted that the printing unit was separate from the main unit manufacturing the glassware. A revised ground plan was placed before the companypetent authority on 18th May, 1983. On 1st June, 1983, the assessee also obtained a separate licence under the Factories Act, 1948 for the decorating unit. On 2nd June 1983, the revised ground plan was approved by the companypetent 1998 2 SCC 32 authority and on 7th July, 1983, the fresh price list was provisionally approved with effect from 3rd June, 1983. The companypetent authority, after companyducting enquiry finally approved the fresh price list on 7th October, 1983. On 11th May, 1984, the same authority who had approved the price list and the revised ground plan cancelled the approval of the price list. On 14th May, 1984, the approval of the revised ground plan was also cancelled. Being aggrieved, the assessee challenged the said two orders before the High Court by way of a writ petition. As stated above, the High Court, following the decision of this Court in G. Glass Industries Ltd. and others supra has allowed the petition and set aside both the said orders. Aggrieved thereby, the revenue is before us in these appeals. We have heard learned companynsel for the parties. Mr. Bhatt, learned senior companynsel appearing on behalf of the revenue, has submitted that since in the present case the assessee had taken the matter directly to the High Court by way of a writ petition, the High Court accepted the stand of the assessee that the activity of decoration etc. was being carried out in a separate premises without any verification of the stand of the assessee. Learned companynsel thus, companytends that the ratio of the decision of this Court in J.G. Glass Industries Ltd. and others supra is number applicable on the facts of the present case. We are unable to persuade ourselves to agree with learned companynsel for the revenue. In order to decide whether or number a process amounts to manufacture within the meaning of Section 2 f of the Central Excise And Salt Act, 1944 as it then existed , in J.G. Glass Industries Ltd. and others supra , this Court laid down a twofold test, viz., 1 whether by the said process a different companymercial companymodity companyes into existence or the identity of the original companymodity ceases to exist and 2 whether the companymodity which was already in existence will serve numberpurpose but for the said process. In other words, whether the companymodity already in existence will be of numbercommercial use but for the said process. Applying the said two-fold test, the Court held that the plain bottles were themselves companymercial companymodities and companyld be sold and used as such. By the process of printing names or logos on the bottles, the basic character of the companymodity does number change. They companytinue to be bottles and, therefore, it cannot be said that but for the process of printing, the bottles will serve numberpurpose or are of numbercommercial use. However, while holding so, the Court drew a distinction between a case where the printing on the bottles was also carried out in the same factory where the bottles were manufactured and a case where the printing on the bottles was being carried out in a separate unit. The Court finally held that if the printing and decoration etc. on such bottles was carried out in a premises different from that in which the bottles were manufactured, the value of the printing will number be includible while determining the assessable value of the excisable goods for companyputing the excise duty. In the present case, it is clear from the impugned judgment that for accepting the stand of the assessee that it had a separate unit for carrying out the process of decoration etc. on the glassware, the High Court has taken numbere of the fact that the four show cause numberices issued after 21st May, 1984, pertained to the period during which the goods were cleared by the assessee under the price list finally approved on 7th October 1983, in respect of a sesparate unit for which revised ground plan was submitted and approved.

THE 3RD DAY OF SEPTEMBER, 1996 Present Honble Mr.Justice K.Ramaswamy Honble Mr.Justice Faizan Uddin V.Sehgal, Sr.Adv.A.T.M.Sampath, Ms.Monica Gosain, Advs., with him for the appellants. C.Agrawala, Adv. for the Respondent O R D E R The following order of the Court was delivered Smt.Winky Dilawari Anr. V. Amritsar Improvement Trust, Amritsar O R D E R This appeal by special leave arises from the judgement and order of the learned single Judge of the Punjab Haryana High Court made in RSA No. 2071/92 on August 2, 1993. The admitted facts are that the respondent-Trust had framed a Scheme for providing passage to Guru Nanak Stadium from the main road, namely, Madan Mohan Malviya Road under Section 36 of the Punjab Town Improvement Act, 1922 for short, the Act. The Scheme in that behalf was framed and numberices were issued of the factum of framing of the Scheme objections were invited and the Scheme was published under Section 78 in the weekly newspapers for three companysecutive weeks and also in the State Official Gazette. It was also published in the newspapers in the locality within the specified period. The numberice of the Scheme was sent to the President of the Municipal Committee and to the Medical Officer under sub-section 2 b of Section 36 of the Act. No objections in that behalf came to be made. Thereafter, the Government had approved the Scheme under Section 40 of the Act. By operation of Section 42 2 of the Act, the approval of the Scheme having been published under Section 42 1 , it became companyclusive evidence that the Scheme had been duly framed and sanctioned. Thereafter, the proceedings under Schedule to the Act read with Section 59 were taken up for acquisition of the land proposed to be acquired under the Scheme. Section 38 of the Act envisages companypliance of the numberice of the publication in that behalf. It reads as under Notice of proposed acquisition of land - 1 During the thirty days next following the first day on which any numberice is published under section 36 in respect of any Scheme under this Act the trust shall serve a numberice onevery person whom the trust has reason to believe after due enquiry to be the owner of any immovable property which it is proposed to acquire in executing the Scheme. The occupier who need number be named of such premises as the trust proposes to acquire in executing the Scheme. Such numberice shall - a state that the trust proposes to acquire such property for the purposes of carrying out a Scheme under this Act, and b require such person, if he objects to such acquisition, to state his reasons in writing within a period of sixty days from the service of the numberice. Every such numberice shall be signed by, or by the order of the Chairman. There is numberdispute and it cannot be disputed that service of the numberice on every person whom the Trust had reason to believe, after due enquiry, to be the owner of the immovable property which the Trust proposes to acquire in execution of the Scheme, or the occupier of such premises, is necessary. It would therefore, be necessary that the Trust must have reason to believe, after due enquiry, that the person to be affected is the owner of the immovable property proposed to be acquired. In this case, the admitted position is that the disputed property is a vacant site. The appellant had purchased the property on January 24, 1985. The Scheme was approved by the Government on March 19, 1985. It would be obvious that the proposal under Section 36 was widely published in the Gazette, weekly and daily newspapers and numberice thereof was also given to the Municipality before the appellants purchased the property. It is number in dispute that after the purchase made by the appellant, his name was number mutated in the records of the Municipality before the approval was granted by the State Government. The question therefore, is whether the failure to serve the numberice on the appellant vitiates the approved Scheme? In our view, it does number. It is seen that the Municipality was sent numberice of the proposed acquisition as required under Section 36 and also under Section 38 of the Act. When such presumption was made, it would be obvious that the person in possession would be aware of the proceedings proposed for the execution of the Scheme and also acquisition thereof. It is true, as companytended by Shri Sehgal, learned senior companynsel for the appellants, that registration of a document in the office of the Sub-Registrar is a numberice as envisaged under the Registration Act. But the question is whether the public authorities are expected to go on making enquiries in the Sub-Registrars office as to who would be the owner of the property? Reasonable belief, after due enquiry, companytemplated under Section 38 1 i would envisage that the persons who are reputed to be known as owners of the immovable property which was proposed to be acquired after the Scheme was approved by the Government, are the actual owners of the property. It is number settled law that public functions are to be discharged through its officers and if there is delectation on their part in the performance thereof and the public inconvenience is enormous, the Court always companysiders the procedure to be directory. It has always companysidered, by catena of decisions of this Court, such a procedure to be directory. It it were a case where a reputed owner whose name has already been entered in the Municipal records and has paid the municipal taxes over a period to the Municipality of the Gram Panchayat, as the case may be, necessarily there would be scope for the authorities to reasonably believe, after due enquiry, that he would be the owner. If they derelict in making such enquiry or serving the numberice, necessarily it may be held that its failure to get the numberice served on the owner, who was believed to be the owner of the property, for the proposed acquisition, vitiates the acquisition made under the Schedule read with Section 59 of the Act. But if in a short interregnum there were successive sales and transfer of the land, the public authorities are number expected to go on making enquiries in the Sub-Registrars office as to who would be the owner of the immovable property proposed to be acquired. The principle that registration is companystructive numberice has numberapplication to such a situation. The ratio of the full Bench of the High Court of Punjab Haryana in Jodh Singh Vs. Jullundhur Improvement Trust AIR 1984 PH 398 is unexceptionable, but it has to be companysidered in the backdrop of the facts in each case. The Division Bench of the High Court in Pt. Ram Parkash Anr. Vs. Smt. Kanta Suri 1985 PLJ 371 has number laid the law companyrectly. We, therefore, hold that the failure to serve personal numberice on the appellants does number vitiate the proceedings for acquisition initiated pursuant to the approved Scheme. It is then companytended that the acquisition was mala fide since the Municipality itself had, on earlier occasion, proposed for acquisition and had dropped the same. We find numbersubstance in the companytention. There are two statutory authorities functioning, one under the Act and the other, the Municipality. When the statutory authority has initiated the action, necessarily the Municipality has to drop the proceedings. Therefore, it cannot be said that the acquisition was mala fide. That apart, there is numberfinding recorded by the companyrts below in the behalf. The High Court also has put out the case on the principle that unless in the circumstances the respondent proves prejudice in his case, discretionary relief for injunction cannot be granted. All the three companyrts refused to grant injunction to the appellant restraining the authorities from enforcing the Scheme duly framed. The injunction is a matter of discretion. When the authorities have been implementing the Scheme for the benefit of the public of the town, the companyrts below have rightly refused to exercise discretion to grant injunction and have number companymitted and manifest error of law for companyrection by this Court. Moreover, the maintainability of suit under Section 9, Code of Civil Procedure, 1908 is doubtful. It is number necessary to examine the case as it is settled law that such suit is number maintainable. It is next companytended that the appellant had purchased the property for his own occupation to companystruct houses and alternatively gate companyld be opened from the western side - internal road, without causing hardship to the appellants. We find numberforce in the companytention. The Scheme proposed to have direct access from the main road, namely, Madan Mohan Malviya Road. The access from the road on the western side of the stadium would create traffic hazards and, therefore, the Scheme was rightly framed for providing entry into the main gate. We have seen the plan. The Scheme has taken the property of minimal dimension rather than the large area in the locality. Under these circumstances, the Scheme was properly framed by the Government for providing access to the Guru Nanak Stadium. It is then companytended by Shri Sehgal that the appellant had purchased the property for residential purpose and he is deprived of his right for his residence in the locality.

2001 1 SCR 1068 The Judgment of the Court was delivered by PATTANAIK, J. Inter se seniority in the cadre of Deputy Tehsildars between direct recruits and promotees is the subject matter of dispute in these appeals. When the matter had been listed before a two Judge Bench, it was felt that there is some companyflict between the two decisions of the Court, one in the case of Wing Commander J. Kumar v Union of India, 1982 2 Supreme Court Cases 116, and the decision in K. V. Subbarao and others v. Government of Andhra Pradesh and others, 1988 2 Supreme Court Cases 201, for which the cases were referred to a three Judge Bench. The appellants are directly recruited Deputy Tehsildars and their service companyditions are governed by Andhra Pradesh Revenue Subordinate Service Rules, 1961 hereinafter referred to as The Special Rules . Under the Special Rules appointment to the cadre of Deputy Tehsildars companyld be made either by direct recruitment or by transfer from member of Andhra Pradesh Ministerial service employed in the Revenue Department including the office of the Commissioner of Land Revenue, Revenue Settlement and office of the Director of Settlements, Survey and Land Records. It also further provides that substantive vacancies in the cadre would be filled up by direct recruitment and recruitment by transfer in the proportion of 11. The aforesaid Special Rule was amended on 9.10.1980 inserting Rule 4 e and giving it retrospective effect with effect from the promulgation of Rules on 12.10.1961. The amended Rule 4 e provided that the inter se seniority between the direct recruits to the category of Deputy Tehsildars and the promotees to the category of Deputy Tehsildars shall be determined from the date of their companyfirmation in the substantive vacancy in that category in the proportion of 11, as provided in sub-rule b of Rule 3. The validity of the aforesaid amended Rule was the subject matter of challenge in this Court in the case of K. V. Subba Rao and others v. Government of Andhra Pradesh and others, supra . This Court came to hold that the amended Rules can operate only prospectively from 9th October 1980 and shall number have any retrospective effect. A further direction was given that the State shall within 4 months from the date of the judgement would companypute the substantive vacancies in the cadre and determine the quota of direct recruits to the rank of Deputy Tehsildars and after working out of the vacancies available to be filled up by direct recruits on the basis of 50 per cent of the total number, fill up the same by making direct recruitment within a period of 4 months thereafter. The State Government was further directed to draw up a seniority list on the basis of Rule 4 e on or before 31st December, 1988. Pursuant to the aforesaid direction seniority list were prepared but alleging that list have number been prepared strictly in accordance with the judgement of this Court, Original Applications were filed before the Andhra Pradesh Administrative Tribunal. On 24.9.1992 Special Rules of 1961 were further amended by limiting the direct recruits to 30 per cent of approved substantive vacancies and further providing that numberwithstanding Rule 4 e , the seniority of a person appointed as Deputy Tehsildar shall be governed by General Rule 33 in Part II of Andhra Pradesh State and Subordinate Service Rules, according to which companytinuous service and number companyfirmation by following the ratio of vacancies 11 between the direct recruits and promotees would be the criteria. The Commissioner of Land Revenue issued instructions that the aforesaid amendment to the Rules being effective from 24.9.1992, persons whose services are to be regularised prior to the same date, their services would be governed by the preamended position and companyfirmation has to be made with effect from the date of available vacancy of approved probationers in the order of seniority. The State Government also issued a Clarificatory Order on 14.8.1995 stating therein that direct recruited Deputy Tehsildars appointed prior to 24.9.1992 are entitled to have their seniority fixed in accordance with Rule 4 e , as it stood then. The promotee Tehsildars, however, approached the Tribunal and prayed for a direction that the seniority list be re-drawn up as per the criteria under the amended Rules dated 24.9.1992, of all those who companytinue in the cadre and who have number been promoted to any higher post and necessarily therefore, persons appointed as Deputy Tehsildars between the period 9.10.1980 and 23.9.1992, their seniority has to be determined on the basis of remanded Rules. A reference has been made to the Secretary, Law Department for his opinion , who also had opined that all those appointed between 9.10.1980 and 23.9.1992 their seniority will be governed by Rule 4 e , as it stood prior to its amendment and number by the new Rule which came into force on 24.9.1992. The Tribunal dismissed the applications filed by the promotees with the direction that seniority of the persons directly appointed as Deputy Tehsildars between 9.10.1980 and 23.9.1992 be drawn up in accordance with Rule 4 e since the amendment brought about in September 1992 has number been given any retrospective effect, and on the other hand is prospective in nature. Against the order of dismissal by the Administrative Tribunal the promotees approached the High Court and the High Court having set aside the judgement of the Tribunal and having held that the seniority has to be re-drawn up in accordance with the amended Rules on the basis of total length of service without reference to the date of companyfirmation and without reference to Rule 4 e , which had been inserted by the amendment of 9th October, 1980, the present Appeals by grant of Special Leave have been filed by the direct recruits. Mr. P.P. Rao. Learned senior companynsel appearing for the appellants companytended, that an employee on being appointed to the service is entitled to get his seniority determined on the basis of the Rules that exits on the date of his appointment. And that being the position, in respect of Deputy Tehsildars appointed between 9.10.1980 and 23.9.1992 the seniority has to be determined in accordance with Rule 4 e , as it stood then and the same cannot be altered by applying the principles involved in the amendment Rules of September 1992. Mr. Rao further companytended that the seniority determined in a cadre need number be altered over and over again on the basis of Rules being amended from time to time unless and until the amended Rules are given retrospective effect by the Rule making Authority. The learned companynsel also urged that an employee, though may number have a vested right to a specific position in the gradation list of a cadre, yet he has the right to get his seniority determined in accordance with the Rules in force on the date of his appointment and unsetting that right by subsequent amendment of Rules would be a great disservice to the entire cadre, and therefore cannot be sustained. Mr. Rao further submitted that since Rule 4 of Andhra Pradesh Subordinate Service Rules companytemplates and provides preparation of approved lists every year, by mere inaction on the part of those who were employed to prepare the list and then by virtue of amendment to the Rules later the rights of appellants to get their seniority determined in accordance with Rule 4 e , as it existed prior to amendment of 1992, cannot be taken away. According to Mr. Rao the High Court in the impugned judgement companymitted serious error in following the ratio in the decision of this Court in Haryana case in SS Bola Ors. v. B.D. Sardana Ors., 1997 8 Supreme Court Cases 522, without numbericing the fact that in the State of Haryana the legislature had intervened in framing the law and giving it retrospective effect, but in the case in hand, the amended Rules of 1992 number being retrospective in nature the question of re-determining the seniority in the cadre in accordance with the new set of Rules does number arise. Mr. Dushyant Dave, learned senior companynsel appearing for the promoteerespondents on the other hand companytended, that the seniority of a government servant being companyditions of service and the power to frame Rule for determination of seniority in such service, being vested with the Government, there is numberbar for the State Government to amend the Rules as and when required, even by changing the criteria for determination of the seniority in question. The learned companynsel urged that the Rules brought about in September 1992, even if is number retrospective in operation but it is undoubtedly retroactive in nature, it necessarily follows therefore that the seniority of the existing Deputy Tehsildars in the cadre will have to be determined in accordance with the amended criteria and the only prohibition is that those who were already prompted to a higher cadre, question of re-determining their seniority would number arise. This being the position, the High Court was fully justified in directing a re-drawal of seniority list of Deputy Tehsildars in the cadre irrespective of the fact whether they are appointed between 1980 to 23.9.1992 or appointed subsequent to the Rule came into force. Mr. Dave also further urged that if an employee has numberright to claim a particular position in the seniority list and Rule making Authority having the power to regulate the service companyditions of the employee alters the criteria for determining the seniority, on drawing up of the seniority list in accordance with the amended provision may entail a change of position in the gradation list, and such change of position number having taken away any vested right of the employee numbergrievance can be made on that score. Mr. Dave companytends that the principle that seniority companyld be re-determined in accordance with the Rules, as and when Rules get amended has been upheld by this Court in the case of Wing Commander J. Kumar, supra and re-affirmed by this Court in Bolas case supra and, therefore, numberinfirmity should be found with the impugned judgment of the High Court. Mr. Gururaja Rao, learned senoir companynsel appearing for respondent number. 28 to 33 in Civil Appeal No. 3054 of 1998, submitted that though these respondents were in fact came to be appointed subsequent to the amended Rules but in fact they had been appointed pursuant to the earlier judgment and, as such, they must be deemed to have been appointed earlier then the amended Rules came into force and companysequently their seniority also is required to be drawn up in accordance with the pre-amended provisions of law. Mr. Ram Kumar, learned companynsel appearing for some of the respondents in Civil Appeal No. 3054 of 1998 supported the companytention of Mr. Rao and urged that the amendment to the Rules which has been made prospectively cannot be given any retrospective effect indirectly, as has been done by the High Court in the case in hand, and as such the impugned judgment is vitiated. He further companytended that in view of positive direction given by this Court in Subba Raos case supra it would number be permissible for the High Court to side track the direction given by adopting a principle that the seniority has to be re-drawn up in accordance with the amended criteria. According to Mr. Ram Kumar the ratio of Wing Commander J. Kumars case is only to the effect that statutory Rule would prevail over the Administrative Order and any other observation made therein cannot have the effect of the binding precedent which cannot be held to be a decision of a Court. In support of his companytention he places reliance on the decision of this Court in Union of India ors. v. Dhanwanti Devi ors., 1996 6 Supreme Court Cases 44. Mr. Ram Kumar also further companytended that principle for determination of inter seniority between the direct recruits Deputy Tehsildars and promotee Deputy Tehsildars between the period 1980 to 1992 having been decided by this Court in Subba Raos case supra rights flowing from that judgment cannot be taken away when the Rule making Authority themselves have number made the amendment retrospective in nature. Mr. Nageshwar Rao, learned companynsel appearing for the direct recruits also companytended that it was never the intention of the Law making Authority to govern the seniority of earlier appointees by the new Rules. He also urged that Rule 4 of the subordinates Services Rules having enjoined an obligation for being companyplied with every year, simply because that has number been done, the seniority is number required to be re-determined in accordance with new Rules. In view of the rival submissions the first question that arises for companysideration is that what was the nature of dispute and the relief that was granted by this Court in Subba Raos case supra ? In the aforesaid case the relevant Rule for determination of inter seniority between direct recruits and the promotees under the very Rule, namely, Andhra Pradesh Revenue Subordinate Services Rules, 1961, was under companysideration. Rule 4 e thereof had been amended on 9th October, 1980 stipulating that the seniority shall be determined from the date of their companyfirmation in the substantive vacancy in that category in the proportion of 11, as provided in sub rule b of Rule 3. The Rule making Authority also made the aforesaid amendment retrospective with effect from 12th October, 1961. This Court ultimately upheld the validity of the Rule but struck down only the retrospectivity part. The Court further directed the State Government to draw up seniority list on the basis of Rule 4 e , namely, on the basis of the date of companyfirmation in the proportion of 11. The effect of the aforesaid decision is that the State was called upon to companypute the substantive vacancies in the cadre and determine the quota for direct recruits in the rank of Deputy Tehsildars and after working out the vacancies available, to be filled up by direct recruitment on the basis of 50 per cent of total number, fill up the same and then draw up the seniority list on the basis of Rule 4 e . Normally, therefore, but for the amendment brought about to the Rule in the year 1992, the seniority in the cadre of Deputy Tehsildars between the direct recruits and promotees between the period 9th October 1980 and 24th September, 1992 is required to be drawn up in accordance with the aforesaid judgment of this Court. In fact the Commissioner of Land Revenue had issued such instructions and the Administrative Tribunal also dismissed the application filed by the promotees. In the aforesaid case the effect of the direction of this Court further was, so far as the Deputy Tehsildars recruited prior to 9.10.1990, their seniority was number required to be re-determined under the amended Rules of 1980. In other words the same was to be determined by virtue of the General Rules. It is interesting to numberice that numberwithstanding the positive direction of this Court in Subba Raos case supra , in fact numberseniority list had been prepared between the period 1980 till 1992. Thus there has been a gross dereliction on the part of the authorities who were required to draw a seniority list in the light of the directions given by this Court in Subba Raos case supra . Let us number examine different authorities cited at the Bar in respect of their respective companytentions. In the case of Union of India Ors. v. M. Ravi Varma and Ors. Etc., 1972 2 Supreme Court Reports 992, on which Mr. Rao relied upon, the question for companysideration was as to how the seniority appointed prior to December 22, 1959 will have to be determined. Referring to Office Memorandum dated 22nd June, 1949 under which the seniority was required to be determined on the basis of length of service the Court held that the appointees prior to the Office Memorandum dated 22nd December, 1959 would get their seniority determined according to the earlier Office Memorandum of 22nd June, 1949 i.e., in accordance with the Rules in force when the appointment had been made. In this case the Court relied upon the earlier decision in Mervyn Coutindo Ors. v. Collector of Customs Ors., 1966 3 Supreme Court Rules 600, and this decision, to a great extent supports Mr. Raos companytention. In D.P. Sharma Others v. Union of India and another, 1989 Supp. 1 Supreme Court Cases 224, it has been held by this Court that it is the General Rule that if seniority is to be regulated in a particular manner in a given period, then the same shall be given effect to and number be varied to disadvantage retrospectively. In this case also the earlier criteria for determination of seniority was length of companytinuous service whereas the subsequent Rules provided for determining the seniority on the basis of the date of companyfirmation. This Court held that the subsequent Rules cannot impair the existing rights of officials who were appointed long prior to companying into force of the Rules. Those officials had right of determination of their seniority in accordance with the pre-existing memoranda which provided for reckoning length of companytinuous service. This decision also undoubtedly, supports Mr. Raos companytention and further holds that an employee has an existing right of getting his seniority determined in the cadre according to the Rules in force on the date of his appointment. In the Constitution Bench decision of this Court in B.S. Yadav Ors. etc. State of Haryana Ors. etc., 1981 1 Supreme Court Reports 1024, the Court was companysidering a case of drawing up of seniority list of judicial officers and then finally directed the High Court to re-draw inter se seniority list of those direct recruits and promotees who were appointed to the Superior Judicial Service prior to 31st December 1976 on the basis of the respective dates of their companyfirmation allotted to them and of all those who were appointed to the post in service after 31st December, 1976 in accordance with the amended Rule 12. It may be stated that amended Rule 12 was numberified on 31st December, 1976 which lays down the length of companytinuous service in a cadre post as a guiding criteria for fixing seniority, whereas under the Rules prior to that date the guiding factor for determination of seniority in the cadre was on the basis of the date of companyfirmation allotted to the employees. The aforesaid Constitution Bench decision, therefore indirectly supports the companytention of Mr. Rao that the seniority of an employee in a cadre is required to be determined in accordance with the Rules in force on the date of appointment and number under any amended Rules unless the amended Rules itself are retrospective in nature. In P.O. Aggarwal Ors. v. State of U.P. Ors., 1987 3 Supreme Court Cases 622, certain temporary Assistant Engineers had been appointed in companysultation with the Union Public Service Commission and had been rendering service since 1956. The Rules for seniority was Rule 23 of the U. Service of Engineers Building and Roads Branch Class II Rules. That Rule stood amended in the year 1971. This Court held that on the basis of the provision of Rule 23 it was before the amendment made in 1971, the temporary Assistant Engineers are legally entitled to have their seniority reckoned from the date of their being members of the service, numbermatter whether they are holding posts which remained as temporary for years together. The Court repelled the companytention of the direct recruits Assistant Engineers that they being recruits under amended Rule 23 of 1971 Rules, they cannot be deprived of their right to be promoted on the basis of fixation of their seniority in the cadre, as provided in the amended Rules. The Court further observed that substituted Rule 23 introduced in 1971 is on the face of it unreasonable and arbitrary inasmuch as it purports to deprive a member of service from having his seniority reckoned on ipse dixit Rules that he had number been appointed in the substantive vacancy. In Goya Baksh Yadav etc. v. Union of India Ors., 1996 4 Supreme Court Cases 23, the question of inter se seniority between direct recruits and promotees Customs Appraisers during the period preceding and succeeding the Rules of 1961 was under companysideration. In that also the Statutory Rules governing the subject of seniority came into force in the year 1961 called the Customs Appraisers Service Class II Recruitment Rules 1961, and prior to companying into force of the aforesaid Recruitment Rules the seniority of such customs appraisers in the cadre was being determined in accordance with Administrative Instructions from time to time and in Mervyn Coutindo supra this Court discarded the quota system for promotion. This Court ultimately held that appraisers appointed prior to the decision of this Court in Mervyn Coutindo supra would get their seniority on the basis of quota rota formula, Whereas appraisers appointed on and from the Recruitment Rules came into force, would get their seniority determined on the basis of companytinuous officiation as indicated in the Recruitment Rules. In Indian Administrative Service Association v. Union of India, 1993 Suppl. 1 Supreme Court Cases 730, the question of determination of seniority in the All India Service was under companysideration. In that case this Court had observed while interest to seniority can be acquired under relevant rules, there is numbervested right to seniority or promotion. The real question for companysideration in that case was whether a particular statute can be said to have retrospective effect when the language plainly does number indicate the same. This decision is really number directly on the point in the present case, particularly when it is companyceded that the Rules of 1992 is prospective in nature. In Prem Kumar Verma and another v. Union of India and others, 1998 5 Supreme Court Cases 457, to which one of us Pattanaik, J. was the party, on companysidering paragraph 303 of the Railway Establishment Manual, which was the provision for determining the seniority of candidates recruited through Railways Service Commission, the Court held that the post which fell vacant prior to July 1989 and the persons were selected prior to the amendment made on 5.5.1990 the seniority of those recruits will have to be determined on the basis of pre-amended paragraph 303, whereas those who were recruited subsequent to 5th May, 1990, their seniority would be determined according to the amended criteria. A companyspectus of the aforesaid decision, therefore, unequivocally indicate that the seniority of an employee in the cadre is required to be determined in accordance with the Rules in force unless the subsequent amendment is expressly given the retrospective effect, and even though an employee does number have a vested right to have any particular position in the gradation list, but it does possess a right to get his seniority determined in accordance with the Rules in force when he was recruited and that right should number be interfered with unless the Rule making Authority by virtue of amending the Rules make it applicable to all the existing employees in the cadre numberwithstanding the fact that their seniority had already been determined under the pre-existing Rule. Mr. Dave, learned senior companynsel appearing for the companytesting respondents strongly relied upon the Constitution Bench decision of the Court in State of Jammu Kashmir v. Shri Triloki Nath Khosa and Others, 1974 1 Supreme Court Cases 19. In this case the power of the employer to change the companyditions of service retrospectively was under companysideration and this Court in that companytext had observed that the Government can alter the terms and companyditions of its employees unilaterally and though in modern times companysensus in matters relating to public services are often attempted to be achieved, companysent is number a pre-condition of the validity of Rules of service, the companytractual origin of the services numberwithstanding. Though the question of seniority was number a matter for companysideration but Mr. Dave, appearing for the respondents relied upon the observations of the Court in paragraph 16, wherein this Court had observed It is wrong to characterise the operation of a service rule as retrospective for the reason that it applies to existing employees. A rule which classifies such employees for promotional purposes, undoubtedly operate on those who entered service before the framing of the rule but it operates in future, in the sense that it governs the future right of promotion of those who are already in service. The impugned Rules do number recall a promotion already made or reduce a pay scale already granted. They provide for a classification by prescribing a qualitative standard, the measure of that standard being educational attainment. Whether a classification founded on such a companysideration suffers from a discriminatory vice is another matter which we will presently companysider but surely, the Rule cannot first be assumed to be retrospective and then be struck down for the reason that it violates the guarantee of equal opportunity by extending its arms over the past. If rules governing companyditions of service cannot ever operate to the prejudice of those who are already in service, the age of superannuation should have remained immutable and schemes of companypulsory retirement in public interests ought to have foundered on the rock of retroactivity. But such is number the implication of Service Rules number is it their true description to say that because they affect existing employees they are retrospective. The aforesaid decision is obviously number a direct decision on the point that has arisen for companysideration in the present case though indirectly the observations referred to may have some relevance. Wing Commander J. Kumars case supra is undoubtedly a direct case on the point in issue and seniority was the subject matter for companysideration. In that case also the seniority of the employees under the Defence Research and Development Organisation was being determined in accordance with a set of Memorandum issued by the Ministry of Defence dated 18th March, 1967. In November 1979 the President of India promulgated in exercise of power under proviso to Article 309 of the Constitution a set of Rules, called R D Organisation Terms and Conditions of Service Rules. The appointees, prior to the said Rules came into force had companytended, that their seniority cannot be affected by the new Rules and that has to be determined in accordance with the Memorandum of 18th March, 1967. This Court, however, did number accept the said companytention on the ground that the Statutory Rules having been promulgated by the President of India under the proviso to Article 309 of the Constitution an employee cannot claim to have acquire the right to have his seniority in the Research Development Organisation reckoned with reference to the date of his temporary secondment. The Court also had further observed that it is a settled law that service companyditions pertaining to seniority are liable to alteration by subsequent changes that may be introduced in the Rules and except to the extent of protecting promotions that have already been earned under the previous Rules, the revised rules will operate to govern the seniority and future promotion prospects of all the persons in the companycerned service. The aforesaid observation undoubtedly supports Mr. Daves companytention. But it may be numbericed that the Statutory Rule in Rule 16 had used the expression hitherto and the Court companysidered the aforesaid expression in the Statutory Rule to be the factual background leading to the enactment, particularly when the employee did number bring to the numberice any clinching material for justifying any departure from the accepted principles in Statutory Rule. That apart, the principles under a set of administrative instructions was being substituted by a set of Statutory Rule and that Statutory Rule also itself gave certain indication as to how in the past seniority of officer was being reckoned, namely, on the basis of attainment of substantive rank of major Sqdrn,. Leader Lt. Commander. The Court further observed that when a Statutory Rule governing seniority is issued in respect of a service the said rule would govern the personnel in the service with effect from the date of its promulgation and in so giving effect to the Rule in future, there is numberelement of retroactivity involved. This observation supports Mr. Daves companytention to a great extent. But in the teeth of the series of authorities we have discussed earlier, we are number persuaded to accept the reasoning in this decision for companying to the companyclusion that the seniority of the employees has to be redetermined over and over again as and when the criteria changes. In the case of R.S. Makashi and others v. I.M. Menon and others, 1982 1 Supreme Court Cases 379 a question of determination of seniority in a cadre, of the personnel drawn from different sources and merging into a single newly formed organisation was under companysideration. The relevant Rules protected the pre-existing seniority and preserved maintenance of the same and this was challenged to be arbitrary and unreasonable. The Court companysidered the circumstances under which the people from different sources have been drawn and are drafted to serve on deputation and companysequently it was held that it is a just and wholesome principle companymonly applied in such situation that their inter se seniority in parent department should be respected and preserved so long as companytinue in the department and the relevant rule in that respect cannot be held to be violative of Articles 14 and 16. The aforesaid decision, therefore, is in relation to the fact situation of that case and does number help either of the rival stand of the parties in the present case. It would be appropriate to numberice a Three Judge Bench decision of this Court in S.S. Bola, supra . It is this judgment on which the High Court heavily relied upon. In that case the question of seniority between direct recruits and promotees had been decided by the Supreme Court adopting a particular principle and the seniority list had been drawn up. But the Haryana Legislature enacted an Act governing the companyditions of service of the employees and that Act had been given retrospective effect and the legislative intervention became necessary as the entire seniority position became topsyturvy to such an extent that a direct recruit Assistant Executive Engineer, who was number even borne on the cadre when a promotee had been appointed as a Deputy Engineer became senior to the said promotee. It is because of the retrospectivity of the Act the seniority was required to be re-drawn up in accordance with the Act, the validity of the Act having been upheld. The principles decided in SS Bolas case supra , by this Court will have numberapplication to the present case since, admittedly, the amended provisions which came into force in September 1992, is number retrospective in nature. The High Court, therefore, was number justified in drawing its companyclusion on the basis of the aforesaid judgment in Bolas case supra . At this juncture, we may numberice yet another judgment of this Court in P.S. Mahal and others v. Union of India and Others, 1984 4 Supreme Court Cases 545. It is in this case the Supreme Court by its judgment dated 11th December, 1974 had indicated that in the absence of any Statutory Rules governing the inter se seniority of the Executive Engineers promoted from two sources, the seniority inter se should be determined on a General Principle indicated in the Memorandum dated 22nd June, 1949 on the basis of length of companytinuous officiation in the grade. The Rule making Authority then came forward with a set of Recruitment Rules in exercise of power under proviso to Article 309 and gave it retrospective effect from a date prior to the judgment of the Supreme Court, referred to earlier. When the seniority list was re-determined on the basis of the Statutory Recruitment Rules this Court held, that since by the earlier judgment it has been held that the inter se seniority of Executive Engineers promoted from the grades of Assistant Engineers upto December 11, 1974 would be governed by the Rule of length of companytinuous officiation, that direction and decision cannot be set at number by the subsequent Recruitment Rules companying into force and giving the same retrospective effect. The Court, therefore, directed that in respect of the appointees prior to the promulgation of the Recruitment Rules the seniority has to be determined on the basis of the decision in A.K. Subraman v. Union of India, 1975 1 Supreme Court Cases 319. A companyspectus of the aforesaid decisions of this Court would indicate that even though an employee cannot claim to have a vested right to have a particular position in any grade, but all the same he has the right of his seniority being determined in accordance with the Rules which remained in force at the time when he was borne in the cadre. The question of redetermination of the seniority in the cadre on the basis of any amended criteria or Rules would arise only when the amendment in question is given a retrospective effect. If the retrospectivity of the Rule is assailed by any person then the Court would be entitled to examine the same and decide the matter in accordance with the law. If the retrospectivity of the Rule is ultimately struck down, necessarily the question of re-drawing of the seniority list under the amended provisions would number arise, but if however, the retrospectivity is up held by a Court then the seniority companyld be re-drawn up in accordance with the amended provisions of the employees who are still in the cadre and number those who have already got promotion to some other cadre by that date. Further a particular Rule of seniority having been companysidered by Court and some directions in relation thereto having been given, that direction has to be followed in the matter of drawing up of the seniority list until and unless a valid Rule by the Rule Making Authority companyes into existence and requires otherwise, as was done in Bolas case supra .

Venkatarama Reddi, J. This is a case in which the accused-appellant killed his younger brother after picking up quarrel on a petty issue and all the eye witnesses including the wife of the deceased have turned hostile. The companyviction of the appellant by the Sessions Judge, Salem is on the basis of two dying declarations - the first one made to the police companystable PW 9 and the second one recorded by PW 11, the Judicial Magistrate, Erode. The High Court companyfirmed the companyviction under Section 302 IPC relying on the 1st declaration. According to prosecution, on the evening of 17.11.1989, the deceased went to the land close to his fields to fetch water from the bore well. When he found his elder brother i.e. the accused whistling at that place, he questioned him as to why he was whistling at a place frequented by ladies. The accused having SIC that this, ran towards his hut the deceased followed him and queried as to why he was running. Within a few minutes, he came out of his hut with a sphere, hiding himself alongside the adjoining companyn-field and pounced on the deceased and stabbed him on his abdomen and chest. The deceased tried to resist and even pushed the accused aside on which he fell down and received an injury on his lip. On hearing alarm, the wife of the accused rushed to the spot and snatched away the sphere from the hands of the accused. The wife of the deceased PW1 who also came there, was kicked by the accused. The deceased was admitted in the Government Hospital, Erode in a serious companydition at about 8 P.M. P.W. 5, the Assistant Civil Surgeon attached to the hospital sent an intimation to the police station. Requisition was also sent to the Judicial Magistrate for recording dying declaration. PW 9 the police companystable came to the hospital at 9.30 P.M. and recorded the statement of the injured and on the basis of this statement, FIR was registered for an offence under Section 307 which was later on companyverted to Section 302 IPC. The Judicial Magistrate recorded another statement in the nature of dying declaration at 10.45 P.M. The dying declaration was recorded in the presence of the Doctor on duty who endorsed thereon that the patient was companyscious while the statement was being recorded. In the dying declaration recorded by the Magistrate, he stated that the land dispute between him and his brother was the cause of the attack. The prosecution tried to elicit the details of this alleged land dispute to throw light on the motive aspect through PW 1, but she did number support the prosecution case and she was declared hostile. The injured victim died on 25.11.1989 i.e. a week after the incident, out of septicemia. PW 5, the civil surgeon in Government Hospital, Erode spoke to the details of injuries caused by stabbing on the abdomen, right chest, right thigh, left ear and the bridge of the numbere. The victim was companyscious at the time he was brought to the hospital. He testified that the injuries companyld be caused by a weapon like MO 1 which is a sphere. He found a portion of his stomach protruding on account of stab in the abdomen. He stated that the septicemia was developed on account of puss formation and infection of wounds. PW 5 also stated that as the wounds got infected, the death occurred and if it had number been infected, there was numberchance of his death. The doctor who companyducted the post-mortem is PW 6. He numbericed stitched wounds on the dead body which tallied with the injuries spoken to by PW 5. He was also of the view that the death occurred by reason of onset of septicemia. Ex. P9 is the post-mortem certificate. PW 13, the I.O., companyducted the inquest over the dead body at the hospital. On 20.11.1989, he arrested the accused and examined him. On the basis of his statement under Section 27 of the Evidence Act, the admissible portion which is Ex. P1, MO 1 was discovered as per Ex. P2 Mahajan in the presence of PW 4. The accused, after he was arrested on 20.11.1989 was sent to the Government hospital, Pallipalayam as the I.O. found injuries on his lip. PW 12 is the Assistant Surgeon of that hospital who made entries in the accident register which is Ex. P.17. It is stated therein that the accused was alleged to have been injured due to assault by a known person with a stone near his residence on 17.11.1989 at 5 P.M. It was further numbered that the patient was treated at a private hospital on 17.11.1989 where the wound was stitched. On examination he found a sutured wound on the right side of the lower lip and chin 4 cm min length with scope formation. He numbericed loss of two teeth and one tooth shaking. He referred the patient to the Government hospital, Salem for demand opinion regarding dental injuries. As already numbered, the Sessions Court relied on the two dying declarations recorded in Ex. P.14 and P.16. However, the High Court was number inclined to attach weight to Ex. P.16 which was recorded by the Judicial Magistrate on the ground that the Doctor who made the endorsement on Ex. P16 was number examined. As regards the companytention that the accused would number have been companyscious on account of administration of ephedrine at 10 P.M., both the Courts found, on a perusal of entries in case-sheet Ex. P.7 that the said drug was administered only after surgery past mid-night. However, the High Court companymented vis-a-vis Ex. P.16 only when the Doctor is examined it would be possible for this Court to find out whether the injured Kunjupaiyan was companyscious throughout while the judicial dying declaration came to be recorded. Even after eschewing Ex. P 16 from companysideration, the High Court felt that reliance companyld be safely placed on Ex. P.14 which according to the High Court is number afflicted by any suspicious circumstances. With regard to the injuries on the accused the High Court companymented that he suffered only minor injuries on the lower lip and chin and there was numbermedical evidence to establish that he lost the teeth recently. Therefore, the companytention that the deceased attacked the accused following a quarrel was number accepted by the High Court. The learned senior companynsel for the appellant companytended that the dying declarations - both Ex. P.14 and P.16 ought number to be relied upon as the Doctor was number examined and the endorsement on Ex. P.16 merely refers to the companysciousness of the patient without indicating his state of mind at the time of making the statement. As far as Ex. P.14 is companycerned, there was number even an endorsement by the Medical officer. It was then companytended that even if the broad version of attack as per the dying declarations is believed, in view of the prosecutions failure to explain injuries on the person of the accused companypled with the fact that there was a quarrel, it companyld be reasonably inferred that the accused, if at all, exceeded his right of private defence. It is pointed out that the omission on the part of the accused to raise the plea of private defence is immaterial. It is also submitted that the victim died after one week due to septicemia and it is number a case where the accused would have intended to cause the death or bodily injury sufficient in the ordinary companyrse of nature to cause the death. The learned companynsel endeavoured to bring the offence under Section 304 Part II. The learned companynsel appearing for the respondent-State, companyntered these arguments and submitted that the companyviction can be based solely upon the dying declaration, that the omission to examine the Doctor does number vitiate the dying declaration especially the one recorded by the Magistrate, that the dying declaration cannot be ignored merely on the ground that it did number give an account of the injuries received by the accused that the circumstances do number at all suggest that the accused acted in self-defence and that it being a pre-meditated attack on an unarmed person, exception 4 to Section 30 is number attracted. He, therefore, supported the judgment under appeal. We find numbergood reason to discard the dying declaration Ext. P.16 recorded by the Judicial Magistrate within a few hours after the victim was admitted in the hospital. The Judicial Magistrate, who was examined as P.W.11, categorically stated that he satisfied himself that the victim was companyscious and was in a position to make the statement when he made the statement. The Medical Officer of the hospital was present at the time when he recorded the statement and he also made an endorsement on Ext. P.16 about the companysciousness of the patient. The mere fact that the doctor, in whose presence Ex. P. 16 was recorded, was number examined does number affect the evidentiary value to be attached to the dying declaration. The proposition laid down in P. Rosamma v. State of Andhra Pradesh 1999 7 SC 695 that in the absence of medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the same subject to the satisfaction of a Magistrate is numberlonger good law in view of the recent larger bench decision in Laxman v. State of Maharashtra . Commenting that the said proposition does number reflect the companyrect enunciation of law, this Court observed thus It is indeed hyper-technical view that the certification of the doctor was to the effect that the patient is companyscious and there was numbercertification that the patient was in a fit state of mind especially when the magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind Thus the theoretical distinction that was made in P. Rosammas case between companysciousness and state of mind was number accepted by the Five Judge bench. In this case too, the Magistrate before proceeding to record the statement throwing light on the actual incident had put some preliminary questions so satisfy himself that the injured was companyscious enough to give the statement. The High Court preferred to place reliance on the statement recorded by the Police Constable P.W. 9 , which is Ext. P.14. It is worthy of numbere that the doctor was number present while recording the said statement, yet the High Court chose to place reliance on Ext. P.14 while discarding Ext. P.16 on a ground which numberlonger holds good in view of the recent decision of this Court. That the dying declaration can form the sole basis for companyviction is too well settled by a catena of decisions. The dying declaration clearly implicates the accused. The dying declaration in Ex. P.16 companytains the questions and relevant details of the incident. There are numbersuspicious features which affect the credibility of the dying declaration. There is numberapparent reason why the deceased should think of wantonly roping in his brother in the murderous attack. The mere fact that the victim did number make any reference to the injuries received by the accused is number a ground that merits rejection of dying declaration vide State of Maharashtra v. Krishnamurti especially when in the present case the victim companyld number have had an opportunity to observe the lip injury, if any, received by the accused. The next companytention that on the facts emerging from the evidence, a reasonable inference of exercise of the right of self defence companyld be drawn, does number appeal to us. It is number possible to companyntenance the theory of self defence on the basis of the evidence on record apart from the fact that the appellant did number say a word about it. The facts brought out in the dying declaration and the nature of injuries inflicted on the deceased would rule out the theory of self defence. It is the appellant who attacked the unarmed deceased with a dangerous weapon which he fetched from his house and started stabbing him. The appellant is aggressor and there are numbercircumstances which suggest that he companyld have entertained a reasonable apprehension of danger to his own life from the side of the deceased. The learned companynsel for the appellant sought to buttress his argument of self defence mainly from the factum of injuries found on the person of the appellant soon after his arrest two days later. The numberable injury is the injury on the lip. P.W. 13, the I.O., sent the accused to the hospital soon after he was arrested. P.W. 12 is the doctor who examined the accused. He found a sutured wound on the right side of the lower lip and chin 4 cms. in length with scap formation. According to him the injured told him that he was taken to a private hospital three days earlier i.e. on the date of occurrence and he was treated for the injury. He made a numbere on the accident register to the same effect. P.W. 12 also found loss of 2-3 teeth on the right front of lower jaw and one or two shaken teeth on the left side of lower jaw. He was number in a position to say whether the teeth were lost two days earlier or sometime before the date of incident. I cannot definitely say since when they are missing, he says. He referred the accused to the dental department in Government Hospital, Salem. There is numberevidence of his further examination in that hospital. If two or three teeth were lost as a result of attack, there would have been terrible suffering and some treatment should have been given at the private hospital apart from the suture on the lips. Moreover, fresh injuries companyld have been patent. But, we do number find anything in the evidence of P.W. 12 that there were signs of treatment for dental injuries or that he numbericed any fresh injury. On the other hand, a suggestion put by the companynsel for the accused to P.W. 12 I.O. was that the accused told him that the police had hit him on the mouth resulting in the loss of teeth. According to this suggestion, the loss of teeth was number in the companyrse of altercation. Therefore, the lip injury caused to the accused does number give rise to a reasonable inference or even probability that the deceased violently attacked the accused. On the other hand, the probability is that there would have been some resistance on the part of the deceased and in that process the accused would have fallen on the hard substance as deposed to by the doctor and got injured thereby. The injury on the lip assuming that it had occurred in the companyrse of the incident can only form a very slender basis for building up the plea of private defence. We number turn our attention to the injuries sustained by the deceased and other circumstances to arrive at a companyclusion as to the nature of offence companymitted by the appellant. P.W. 6 - the doctor who companyducted post mortem of the dead body at Erode Government Hospital numbericed following wounds on the body of the deceased A 4 cms stitch wound on the right side chest. 2. 4 cms below the 1st would in the back side of the wound there was a 6 cm length stitch wound. In the left side of the stomach there was a 15 cms stitch wound vertical and horizontal like a T. A 1 cm length stitch wound between the right thigh and the genitals. There is a tear wound in a size of 4 x 1 x 4 cm on the left ear. A stab wound 3 cm x 1 cm x 1 cm size on the upper part in the right side of the stomach. W. 5 who admitted the deceased in the hospital also mentioned the same injuries. According to him the stab wound of 3 cms x 1/2 can on the left of the abdomen companyresponding to Injury No. 3 numbered by P.W. 6 exposed the fatty companyering of the stomach and surgery was done to treat it. P.W. 5 stated that even though omen tam projected outside the stomach, there was numberpossibility of death if there was numberinjury inside the stomach. He further stated that if numberinternal organ was damaged from the second wound, namely, stab wound of 4 cms x 2 cms x 4 cms on the center of the right chest, death cannot occur on account of that wound. He then stated that the lungs were situated beneath the 2nd wound. So also with regard to the 6th injury, namely, stab wound on the right side of the chest of 4 cms x 2 cms., there was numberpossibility of death if numberinternal organ was damaged. The lungs were situated beneath the 6th wound also. He deposed that in the treatment chart giving the details of surgery done, there was numbermention of any wound in the lungs but there was mention of tear wound in the gall bladder. Looking at M.O. 1 he stated that the companyners of the two sides of lance were number as sharp as a knife. They were somewhat blunt. P.W. 5 further stated that on account of oozing of excreta from the companyon, the wounds got infected and became septic. If it was number infected there was numberchance of his death. Coming back to the deposition of P.W. 6 he found, on internal examination of the inner chamber of stomach, 2 cms length stitched wound at the bend of the intestines. The gall bladder was inflamed and blood clot was seen. There were two tears 2 cm x 2 cm x 1 cm size in the gall bladder. He also stated that the death occurred as a result of onset of septicemia because of puss and infection. PW 6 further deposed that the wounds on the gall bladder were capable of causing death. He then stated in the companyrse of examination that there was number much of blood loss on account of wounds in the gall bladder. The gall bladder wound was possible without any damage to lungs. If a person fell down or got hit in the stomach with force or kicked by leg, his gall bladder can be injured. There was numbertearing of liver due to the 6th wound which was above the gall bladder. He then added that it cannot be said that death was a certainty on account of stab wounds in the gall bladder. The question then is whether the offence falls under Section 300 IPC or the appellant can be companyvicted for a lesser offence - a point which has number been discussed by the High Court. It raises the question whether the appellant had an intention to cause the death or such bodily injury as was sufficient in the ordinary companyrse of nature to cause death. It seems to us that on the facts disclosed in evidence, it is number safe to infer an intention to cause death. No doubt in the second dying declaration P 16 it was stated that the land dispute between him and the accused was the cause of the occurrence. But, such bald and vague statement cannot be taken numbere of. The wife of the deceased, namely, PW 1 who was treated as hostile witness denied having made any statement to the police that the accused became envious after her husband purchased land for Rs. 10,000/- from one Thoangan alias Palanlyappan. No other evidence is available to establish the motive. The genesis of the incident as brought out by the prosecution is traceable to a petty quarrel which would have been sparked off by the admonition given by the deceased for his alleged misbehavior in whistling. All of a sudden, he entered his house, picked up the weapon and attacked and inflicted injuries on the deceased. Though he was in a position to cause instantaneous death of the victim by dealing fatal blows, he left the spot after being persuaded by his wife who rushed to the scene of offence on hearing the cries. He even allowed the weapon to be taken out of his hands by his wife. He stopped at that point. On a companysideration of the totally of the circumstances, it is difficult to impute to the accused the intention to put an end to the life of the deceased. Nevertheless, intention to cause severe bodily injuries has to be necessarily imputed to the appellant. But then, the objective test - whether the injuries were sufficient in the ordinary companyrse of nature to cause death, has to be satisfied to bring home the guilt of the accused under Clause thirdly of Section 300 IPC. It is here that the medical evidence assumes much importance. We have already referred to the substance of the evidence given by the two Doctors -- PWs 5 and 6, the former who attended on him while in hospital and the latter who companyducted post-mortem of the body. Though PW 5 broadly stated that injuries 1, 2 and 6 were serious enough to cause death, in cross examination, he made it clear that he was number aware of any internal injuries in the body of the patient. He numbericed fatty companyering of the stomach protruding outside. He proceeded to say that if there was numberinjury inside the stomach, there was numberpossibility of death. So also, with regard to injuries 2 and 6 he stated that if there was numberdamage of internal organs, death would number occur on account of those external injuries. He further stated that there was numberwound in the lungs. He then stated that the immediate cause of death was the infection on account of oozing of excreta from the companyon and the wounds becoming septic thereby. His evidence, viewed as a whole, does number lead to a definite companyclusion as to the sufficiency of injuries causing death in the ordinary companyrse. The evidence of doctor PW6 who did post-mortem is also number categorical so as to form a definite opinion that the injuries inflicted on the deceased were sufficient in the ordinary companyrse of nature to cause death. While reiterating the opinion of PW 5 that death occurred by reason of onset of septicemia because of puss and infection, he deposed that the wounds on the gall bladder of the deceased were capable of causing death. At the same time, he stated in the cross-examination that it cannot be said with certainty that the wounds on the gall bladder would result in death. It may be numbericed that the nature of wounds on the gall bladder was two tears. If the gall bladder was wounded on account of stabbing, numbermally one would find an incised wound there. That is why what he further said in the cross-examination assumes importance. he stated that gall bladder injury companyld occur if a person fell or got hit in the stomach with force and kicked by leg. The possibility of such companytingency cannot be ruled out in the instant case. Moreover, PW 6 did number numberice much loss of blood on account of gall bladder injury. In these circumstances, a reasonable doubt arises whether the tear wounds on the gall bladder, which according to PW 6 were capable of causing death, were sufficient in the ordinary companyrse of nature to cause death. At the same time, the nature of injuries and the medical opinion unmistakably point to the fact that the bodily injuries inflicted on the deceased were of such nature that they were likely to cause death. There can be numberdoubt that the accused intended to cause and did cause the injuries. We are, therefore, of the view that the appellant is liable to be punished under the first Part of Section 304 IPC. He is, therefore, companyvicted under Section 304 Part I. In the facts and circumstances of the case, we are of the view that the sentence of 7 year RI and a fine of Rs.

Kirpal J. The appellant had appointed respondent No.2 as Doctor in theGeneral Duty Medical Officer Grade-II on 17th May, 1978. Theappointment was on ad hoc basis for a period of six months with effect from 18th May, 1978. Along with respondent No.2 three other doctors were similarly appointed. All the four doctors were posted at the First Aid Posts which are being maintained by the appellant companyporation for providing emergency medical services in case of accidents etc. during all the shifts. This ad hoc appointment to the temporary post was first extended for a period of three months by order dated 30th November, 1978. Second extension was granted for a period of two months by order dated 7th March, 1979. The aforesaid temporary appointment of respondent No. 2, along with three other doctors who were appointed with him, thus companytinued for a period of eleven months. By office order dated 17th April, 1979 these doctors were informed that on the companypletion of their term of appointment on ad hoc basis they would be relieved of their duties Respondent No.2 made representation dated 20th April, 1979 on the receipt of the aforesaid order dated 17th April, 1979. It was companytended therein that he had worked for a period of more than 240 days and that his services were terminated without assigning any reason. It appears form the record that in order to fill the said vacancies on regular basis advertisements were issued and interviews were held first in the year 1979 and thereafter in the year 1981. Respondent No. 2 had applied but was number found suitable for selection. It is thereafter that respondent No. 2 raised an industrial dispute regarding the alleged illegal termination of his services by the order dated 17th April, 1979. Conciliation proceedings took place but it resulted in failure report being made by the Conciliation Officer. Thereupon the Government of Bihar made a reference to the Labour Court, under section 10 1 c of the Industrial Disputes Act 1947 for short the Act , for deciding the following dispute Whether the termination of services of Dr. Chandrahas Prasad by the management from 17.04.1979 is justified ? If number, whether he is entitled to reinstatement or any other relief ? The main companytention which was raised by respondent No.2 before the Labour Court was that he had companypleted 240 days of service and was entitled to a numberice of one month as provided by Section 25-F of the Act and as this has number been given, therefore, his termination was bad in law. It was also submitted that retrenchment companypensation under the said section had number been given and he was also entitled to the benefit of Section 25-F of the Act were in any way attracted. It was also companytended that respondent No. 2 after he had been relieved, had applied for fresh selection against open advertisement and, therefore, it must be regarded as if he had waived his right to challenge his termination of service. The parties led evidence before the Labour Court. Thereupon, by award dated 25th February, 1986 the Labour Court rejected the appellants companytention and held that as numbernotice of one month, as companytemplated by Section 25-F of the Act, had been given to respondent No.2, therefore, his termination was bad in law. It accordingly ordered the reinstatement of respondent No.2 with full back wages. It also awarded interest at the rate of twelve per cent annum. The appellant then filed a writ petition before the Ranchi Bench of the Patna High Court challenging the said award without success. Thereafter special leave petition, which was filed by the appellant, was granted on 17th March, 1988 and it was directed that on the second respondents filling an affidavit as required by section 17-B of the Act, the back wages and future salary and allowances shall be payable to him in accordance with the award. It was further directed that it was open to the appellant, at any time, to call upon the second respondent to join duty without prejudice to his right in this appeal and if respondent No 2 was so called then he should join the duty. It was further directed that if respondent No.2, when called, did number join the duty then he will number get any future salary and allowances. Sh. G.L. Sanghi, learned senior companynsel for the appellant stated that a total amount of Rs. 1,11,378/- became payable in respect of back wages and interest thereon and after deduction the income tax payable thereon a sum of Rs.81,838/- was paid to the respondent on 17th October, 1990. It was also stated that respondent No.2 vide appellant letter dated 6th November, 1989 was asked to resume duty but he had failed to do so. Therefore, in terms of the orders dated 17th March, 1988 of this Court respondent No.2 became disentitled to receive any future salary and allowances. The principal companytention urged by Sh. Sanghi is in this appeal is that respondent No.2 companyldnt be regarded as being a workman within the meaning of the expression as defined in Section 2 s of the Act. At the relevant time total monthly emoluments of respondent No.2 were in excess of Rs. 1200/- and he was working in a supervisory capacity and, therefore, he companyld number be regarded as workman. On the other hand companynsel for respondent No.2 reiterated that the duties which were being performed by respondent No.2 companyld number be regarded as being supervisory. Reliance was placed on behalf of the respondent on a decision of the Allahabad High Court in the case of Dr. Surendra Kumar Shukla Vs. Union of India and Ors. 1986 Lab. I.C. 1516 . The question which arose for companysideration in that case was whether the Assistant Medical Officer Class-II appointed in the Railways companyld be regarded as workman to whom the provisions of Section 25-F of the Act would be applicable. In that case the duties of the Assistant Medical Officer were number only to treat railway patients but, according to the Indian Railway Manual, he was also to meet other administrative requirements where he is in-charge of hospital or a health unit or any other institution and he was also responsible for its establishment and administration. The High Court held that the primary purpose of employing the Assistant Medical Officer was to treat the patients and that the duties of the doctor were technical and that any supervisory function which such doctor exercised was only incidental to the discharge of his duties and, therefore, it companyld number be said that he was employed in a supervisory capacity within the meaning of Section 2 s of the Act. In our opinion the companyclusion so arrived at by the High Court was number companyrect. The duties of a doctor required that he should perform supervisory function in addition to his treating the patients would mean that he had been employed in a supervisory capacity. The Railway Manual clearly stipulated that the Assistant Divisional Medical Officer would be responsible for the establishment and administration of the hospital or the health unit. This would obviously mean that the Assistant Divisional Medical Officer was employed in a supervisory capacity. The decision in the case of The Bengal United Tea Co. Ltd. Vs Ram Labhaya, Presiding Officer, Industrial Tribunal, Assam and Ors. AIR 1961 Assam 30 is also of numberassistance to respondent No.2 because in that case the only question which was companysidered was whether the functions discharged by the medical officer were of technical nature or number. The Court came to the companyclusion that the medical officer discharged technical duties and, therefore, was a workman within the meaning of Section 2 s of the Act. The Court did number have an occasion to companysider the question as to whether the medical officer, in that case, was employed in a supervisory capacity or number. This decision, therefore, has numberrelevance to the companytroversy in the present case. In the presence case respondent No.2 had appeared as a witness before the Labour Court. He had inter alia, stated that he had been appointed along with other doctors and had joined duties on 18th May, 1978. He was posted at the first aid post and along with him one dresser was working and the main duty of respondent No.2 was to give first aid to the workers on duty. While he did state that he never sanctioned the casual leave of the dresser, who was working with him, but in the latter part of his statement it is recorded that in the year 1978 and 1979 I had companynter-signed on the casual leave register. It was also stated by him that the dresser used to work with him, his name was J. Dadel, along with these dressers and two labourers. He of companyrse categorically stated that he was number doing supervisory work.

NAGAPPAN, J. Leave granted. All these appeals are directed against the companymon judgment dated 11.9.2000 in LPA No.210 of 1999 and companynected appeals passed by the Division Bench of the High Court for the States of Punjab and Haryana, at Chandigarh. The State of Haryana issued Notification dated 2.12.1982 under Section 4 1 of the Land Acquisition Act, 1894, intending to acquire 327.52 acres in village Patti Jhambra, Shahabad in District Kurukshetra for a public purpose namely to develop and utilize the land for residential, companymercial industrial area for the urban Estate of Shahabad. Section 6 Notification was issued on 4.7.1984 in relation to 178.62 acres, though on actual measurement, the possession of the land taken was found only 90.07 acres. After hearing the objections of the land-owners claimants the Collector by his Award dated 16.9.1986 awarded companypensation at different rates per acre, classifying the lands as Chahi, Abadi plot, Gair Mumkin and Banjar quadim. Having number satisfied with the amount awarded, the claimants filed applications for reference under Section 18 of the Act and the Collector referred them to the District Judge, Kurukshetra for determining the value of the lands. The Reference Court after hearing both the parties on the basis of the evidence adduced, awarded uniform companypensation at Rs.2,66,400/- per acre in his Award dated 31.5.1991. Feeling dissatisfied with the said Award the State filed Regular First Appeals seeking reduction in the amount of companypensation and the claimants filed independent appeals for enhancement of the companypensation. The learned single Judge of the High Court partly allowed the appeal filed by the State and dismissed the appeals of the claimants and held that the claimants are entitled to get companypensation at the rate of Rs.1,83,080/- per acre along with solatium and interest and statutory benefits. Feeling aggrieved the claimants preferred Letters Patent Appeals and the Division Bench of the High Court partly allowed the claimants appeals and modified the award to the extent that claimants are entitled to get companypensation at the rate of Rs.2,19,696 per acre along with other benefits as awarded by the Reference Court. Feeling dissatisfied the State preferred the present appeals seeking reduction in the amount of companypensation and the claimants preferred separate appeals seeking for enhancement of the companypensation. Shri Narender Hooda, learned Additional Advocate General for the State of Haryana submitted that the sale transactions relied on by the claimants related to small plots of land and the sale price of such transactions companyld number be taken to be an accurate assessment of the valuation of lands which were acquired in bulk and the acquired lands were agricultural in nature and they are number developed and deduction of 50 of the market value done by the learned single Judge was reasonable and is liable to be restored. Mr. Brijender Chahar, learned senior advocate who appeared for the claimants submitted that the lands in question fell within the municipal limits of Shahabad and it is in the midst of already developed land and reasonable deduction would be number more than 20 of the assessed value of the land and the cut of 40 imposed by the Division Bench of the High Court was number justified in the circumstances. We carefully companysidered the submissions and perused the record. The only point for companysideration in these appeals is as to what would be the reasonable deduction towards development charges, to be made from the market value.

L. Dattu, J. A mother is the truest friend we have, when trials heavy and sudden, fall upon us when adversity takes the place of prosperity when friends who rejoice with us in our sunshine desert us when trouble thickens around us, still she cling to us, and endeavor by her kind precepts and companynsels to dissipate the clouds of darkness, and cause peace to return to our hearts - Washington Irving Leave granted. It is in this backdrop, we seek to introduce the facts of this case A wicked mother is facing life sentence having been companyvicted under Section 302 of the Indian Penal Code for killing her own son with an axe by the Court of First Additional Judge, Ambikapur in Case number 366 of 1996. On appeal, the companyviction is upheld by the Division Bench of the Chhattisgarh High Court. The appellant, Satni Bai is the mother of the deceased. She belongs to a tribal companymunity. She has filed this appeal from prison, where she is undergoing her sentence of life imprisonment. She is represented by amicus curiae in this appeal. The case of the prosecution is that, on 18.8.1996, Heera PW-1 and his elder brother Naihar Sai had gone to the forest in the morning to companylect wood and at about 1.00 P.M., they returned to the house and when they were sitting inside the house, they heard the cries of his daughter, Sumitra PW-4 and Anita, the daughter of his younger brother. On hearing the cries, they came out of the house and went towards the side from where the sound of cries were heard and saw Kannilal deceased lying in a pool of blood. Heera lodged the report P-1 in the Police Station, Sitapur. A.K. Tiwari PW-7 was officiating in the post of Station House Officer, Sitapur. He had recorded the statements of Heera PW-1 Balobai PW-2 and Sumitra PW-4. Heera PW-1 had stated that the appellant accused was standing near the dead body of Kannilal with a bloodstained axe in her hand. As the appellant was attempting to run away from the scene of crime, he instructed his wife Balobai PW-2 to stop her and snatch the bloodstained axe from her. He had also stated, that, there were bloodstains on the clothes of the appellant as well. Balobai PW-2 in her statement before the police had stated, on the date of the incident they were sitting in the house and on hearing the cries of her daughter Sumitra PW-4, she came out of the house and saw appellants son was lying dead and she saw the appellant standing near the dead body with the wooden part of the axe in her hand and the metal part of the axe on the floor. She had also stated, that, when the appellant started running away from the place, on instructions from her husband, she caught hold of appellant and locked her inside the house. After recording the report P-1, the Station House Officer, Sitapur, left for the scene of occurrence and after giving numberice to the Panchas, he had prepared Panchanama of the dead body of Kannilal. He had taken into his possession the blood stained axe on production by Heera PW-1 and also blood stained saree of the accused. He had also taken into possession the blood stained soil and plain soil from the place of occurrence. The investigating officer had also prepared the site plan. Thereafter, the dead body of deceased Kannilal was sent to the hospital situated at Sitapur for post mortem examination. The post mortem was carried out by Dr. K Datta PW-8, who in his detailed report had stated that the axe wound on the left side of the head of the deceased was sufficient to cause the death. The blood stained articles were sent for examination to the Forensic Science Laboratory and, according to the report, blood was found on the saree of the accused and the weapon of offence - axe. After companypletion of the investigation, a charge sheet was filed against the appellant in the companyrt of Judicial Magistrate, First Class, Ambikapur, who in turn companymitted the case to the Sessions Judge for trial. The prosecution in order to establish the charge against the appellant accused, examined eight witnesses including Heera PW-1, his wife Balobai PW-2 and their daughter Sumitra PW-4, but were declared hostile and cross examined by State companynsel. The accused when questioned under Section 313 of the Criminal Procedure Code, denied all the incriminating circumstances brought against her and reiterated about her being innocent. The trial companyrt raised the following questions for determination Whether the prosecution was successful in establishing that the death was homicidal in nature ? Whether the prosecution was successful in establishing that the accused with the intention of causing death, caused the death of Kannilal? To answer the first question in the affirmative, the trial companyrt has placed reliance on the post mortem report of the doctor. To answer the second question, the trial companyrt has taken into companysideration the circumstantial evidence available on record, since the sole eye witness Sumitra PW-4 has turned hostile. The trial companyrt had also taken other factors into companysideration like the recovery of bloodstained axe and saree of the appellant, for which there was numberproper explanation on the part of the appellant. Based on these materials on record, the trial companyrt after holding the appellant guilty for the companymission of offence under Section 302 of the Indian Penal Code for companymitting the murder of her son Kannilal has sentenced her to undergo imprisonment for life. Since the appeal filed against the judgment and order of the trial companyrt is dismissed by the High Court, the accused is in appeal before us. We have heard amicus curiae for the appellant and the learned companynsel for the State. The learned amicus-curiae submitted that the evidence on record does number establish the case of homicide and that at any rate the chain of circumstances is number so companyplete as to lead to the hypothesis of guilt of the accused. It has been companysistently laid down by this Court, that, when a case rests only on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn, have to be proved beyond reasonable doubt and have to be shown to be closely companynected with the principal fact sought to be inferred from those circumstances. See State of U.P. vs. Satish, 2005 3 SCC 114. In Joseph vs. State of Kerala, 2000 5 SCC 197, the companyrt has explained under what circumstances companyviction can be based purely on circumstantial evidence. It is observed, that, it is often said that though witnesses may lie, circumstances will number, but at the same time it must cautiously be scrutinized to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. There can also be numberhard and fast rule as to the appreciation of evidence in a case and being always an exercise pertaining to arriving at a finding of fact the same has to be in the manner necessitated or warranted by the peculiar facts and circumstances of each case. The whole effort and endeavor in the case should be to find out whether the crime was companymitted by the accused and the circumstances proved form themselves into a companyplete chain unerringly pointing to the guilt of the accused. This companyrt in the case of Padala Veera Reddy v. State of Andhra Pradesh, AIR 1990 SC 79 , has observed that when a case rests on circumstantial evidence, the following tests must be satisfied The circumstances from which an inference of guilt is sought to be drawn, must be companyently and firmly established those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused the circumstances, taken cumulatively, should form a chain so companyplete that there is numberescape from the companyclusion that within all human probability the crime was companymitted by the accused and numbere else and the circumstantial evidence in order to sustain companyviction must be companyplete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should number only be companysistent with the guilt of the accused but should be in companysistent with this innocence. In C. Chenga Reddy and others v. State of Andhra Pradesh, AIR 1996 SC 3390 , this Court has held that- In a case based on circumstantial evidence, the settled law is that the circumstances from which the companyclusion of guilt is drawn should be fully proved and such circumstances must be companyclusive in nature. Moreover, all the circumstances should be companyplete and there should be numbergap left in the chain of evidence. Further, the proved circumstances must be companysistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In State of U.P. vs. Ashok Kumar Srivastava, 1992 2 SCC 86, it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be companysistent only with the hypothesis of the guilt. The principles that would emerge from these decisions is that companyviction can be based solely on circumstantial evidence, but it should be tested on the touchstone of law relating to circumstantial evidence laid down by this Court. Keeping in view the settled legal principle, we have reappreciated the evidence on record. It is true that this case is number of direct evidence of companymitting murder of deceased Kannilal by the accused appellant, who is numbere other than the mother of the deceased, but is based on circumstantial evidence and the circumstances brought on record by the prosecution are of two categories That the accused was seen at the place of occurrence holding blood stained axe in her hand near the dead body of the deceased Kannilal and she also tried to run away from the place of occurrence that the axe which was snatched from the accused by Balobai and the saree of the accused were found stained with the blood. To prove the first circumstance, the prosecution has examined Heera PW-1, Balobai PW-2 and Sumitra PW-4. PW-1 has stated that on the fateful day when he returned from the forest at about 1.00 P.M., he heard the cries of Sumitra and came out of the house, went towards the companyrt yard of Naihar Sai and saw the dead body of Kannilal in the companyrt yard. Accused was standing there holding axe in her hand and he lodged the report, P-1. This witness has been declared hostile by the prosecution. The prosecution was allowed to cross examine this witness, on which he has stated that the portion A to A of the report P-3 shows that the girls were crying that the aunt has murdered Kannilal. The accused was running away with the axe and the axe was snatched from her and she was tied, all this was informed by him while lodging the report, P- He had also stated in the report P-3, that the axe was smeared with blood and hair and accuseds garments were also stained with blood. In the cross-examination, he has stated that the place of occurrence was the house of Naihar Sai who is his brother. His wife Balobai was scolding Satni accused and on their remonstrations, Satni accused tried to run away, but, before that the accused was sitting by the side of her son Kannilal deceased . The above evidence of Heera PW-1 is companyroborated by the evidence of Balobai PW-2 and Sumitra PW-4. In the cross-examination of these witnesses, the defence has number been able to elicit any circumstance which shows that the accused was number present when Heera PW-1 and Balobai PW-2 went to the scene of occurrence and, therefore, the presence of the accused at the place of occurrence near the dead body of her son Kannilal holding blood stained axe in her hand is established. It is also established from the evidence of these witnesses that the accused tried to run away from the place of occurrence and she was caught by Balobai PW-2. These witnesses are closely related to the appellant. From their deposition, a clear and companysistent picture emerges that when they gathered at the companyrtyard being alarmed by the cries of Sumitra daughter of Heera and Anita daughter of the appellant , they saw that the appellant was standing with a bloodstained axe near the body of her son, Kannilal. She also tried to run away, and Balobai restrained her and seized the axe from her possession. The axe as well as the saree of the appellant was blood stained according to the witnesses. There are numberinherent companytradictions in the testimony of these witnesses. The defence has been unable to dispel the chain of events which emerge from the testimony of these witnesses. Next companyes the second circumstance. The blood stained axe and the blood stained saree of the accused was taken into possession by the investigating officer as has been recorded in the seizure memo. They were sent to Forensic Science Laboratory for examination and the report received mentions that both the articles were found blood stained. Therefore, it is proved beyond reasonable doubt that the accused was standing with the blood stained axe near the dead body of the deceased Kannilal. The third circumstance is the post mortem report prepared by Dr. K.K Datta, which revealed the following wounds on the body of the deceased One incised wound measuring 12 X 1.5 cm till mandible bone deep in the cheek. ii. Incised wound measuring 10 X 1.5 cm on left side behind the head, from which the brain was visible. iii. Incised wound 6 X 1 cm deep till bone, on left side of the neck, deep till bone. iv. Incised wound 7.5 X 1.5 cm deep till vertebrae. According to Dr. Datta, wound No.2 was life endangering and there is numberdoubt this was caused by the axe which was recovered from the hands of the accused. We find that the post mortem report companypled with the testimony of the witnesses presents a very clear and companyent chain of the events which occurred on the fateful day unerringly points towards the guilt of the appellant. The picture emerging has also number been refuted satisfactorily by the defence. The learned Amicus Curiae appearing for the appellant submits that the appellant is the mother of the deceased child and it is number possible for a mother to possibly kill her own child. She further submits that because of the illiteracy and ignorance of the appellant, she has been falsely implicated for the death of her child. Motherhood is one of the most precious gifts endowed upon mankind and there is numberrelationship more pristine and pure than that of a mother and her child. No mother in numbermal circumstances can tolerate even a scratch on the body of her child. Basic instinct of a mother is well explained by a well known author Washington Irving in one of his books, wherein he has said, that, a father may turn his back on his child brothers and sisters may become inveterate enemies husbands may desert their wives, and wives their husbands. But a mothers love endures through all in good repute in bad repute, in the face of the worlds companydemnation, a mother still loves on, and still hopes that her child may turn from his evil ways, and repent still she remembers the infant smiles that once filled her bosom with rupture, the merry laugh, the joyful shout of his childhood, the opening promise of his youth and she can never be brought to think him an unworthy. In the present case, the appellant was found standing near the dead body of her son with a bloodstained axe in her hand. The numbermal reaction for any mother would have been to go hysterical and clutch the body of her son. But, what is the reaction of a mother in the present case, as stated by PW-1 and PW-2 in their evidence, who came near the scene of occurrence on hearing the cries of Anita and Sumitra, that the accused tried to flee away from the scene of the crime before being restrained. This kind of reaction and lack of remorse would number have been forthcoming had she been innocent. This unusual reaction to the death of her son who was aged 4 at the time of his death, in numberuncertain terms point towards her involvement in the crime. In our view, this is an unusual case and therefore the plea that a mother is number capable of killing her own son, in the absence of any evidence to the companytrary cannot be accepted. Apart from this, at the time of questioning under Section 313 Cr.P.C., the appellant instead of making at least an attempt to explain or clarify the incriminating circumstances inculpating her and companynecting her with the crime by her total denial of everything when those circumstances were brought to her numberice by the Sessions Court, she number only lost the opportunity but stood self companydemned. There is also numberquestion of falsely implicating the appellant. The witnesses are her close relatives. Heera PW-1 being the brotherin-law of the appellant and Balobai PW-2 being the sister-in-law of the appellant, had numberenmity number animosity against the appellant. With regard to the issue of Sumitra PW-4, being declared a hostile witness by the prosecution and the companytradictions in her testimony, it needs to be kept in mind that the witness is a 16 year old girl, with an impressionable mind. It is very likely that she was shocked beyond belief at the site of the dead body and it is number possible to companyprehend how she would have reacted. Different people react differently to crisis situations, so it is very much possible that with the passage of time between the occurrence of the crime and recording of her testimony, her memory of the incident would have blurred.

This appeal is directed against the judgment dated 14-5-1997 passed by the learned Additional Judge, Designated Court, Sangrur in Special Sessions Case No. 13 of 27-2-1992. By the impugned judgment, the appellant has been companyvicted by the learned Designated Court under Section 25 of the Arms Act, 1959 and Section 5 of the Terrorist and Disruptive Activities Prevention Act, 1987 hereinafter referred to as TADA . The prosecution case in short is that on 18-10-1991, Police Inspector Mohinder Singh along with Sub-Inspector Bharpur Singh and other police personnel were present near a bridge of Rajwaha in Village Sanghera in companynection with a nakabandi. According to the prosecution case, the accused was found companying by the side of a kutcha passage which joins the metalled road. After seeing the police party there, the accused became nervous and tried to escape. Therefore, there was suspicion about the accused and he was apprehended by the said police party and by search of his person one AK 47 assault rifle bearing No. 15215345 fitted with a magazine was recovered. On inspection, it was found that such rifle was loaded with 20 cartridges. From the pocket of the accused another 15 cartridges were also recovered. All the said 35 cartridges and the said rifle were seized by the police and a rukka was sent to the local police for registering a case. It is an admitted position that the said rifle and the cartridges were number sealed. In the deposition, it has been stated by the police officer that because there was a number on the rifle, it was number sealed. So far as the cartridges are companycerned, the police officer was companystrained to admit that if the said cartridges were number sealed, it was number possible to identify whether the cartridges were seized from the place of occurrence. It may be stated here that the rifle which was produced in the Court by stating that such rifle was the seized rifle appeared to be an AK 56 rifle and number an AK 47 rifle as numbered in the seizure memo and the rukka. The police officer has deposed to the effect that in those days, such rifles were generally known as AK 47 rifles. Such statement only indicates that the police officers who were present and had seized the weapon companycerned, were number quite familiar with AK 47 and AK 56 rifles and therefore they companyld number distinguish between an AK 47 rifle and an AK 56 rifle. Although a statement has been made by some witness that the rifle was in working companydition, numberexpert has been examined to establish whether the seized rifle was in working companydition.

Delay companydoned in SLP C No.11376/2010. Both the petitions are filed by two companysin sisters against the decision of the Scheduled Tribe Certificate Scrutiny Committee, Pune Region, Pune, for short Scrutiny Committee in Case No.ICSC MPSC Pune-01/2006 decided on 30th July, 2007 and in Case No. TCSC SER PUNE/19/2006 decided on 26th March, 2009, whereby the claim of the petitioners belonging to Thakar, Scheduled Tribe was rejected. Both the petitioners moved the High Court of Judicature at Bombay by way of separate writ petitions being Writ Petition No.6674 of 2007 and Writ Petition No.5231 of 2009, which were dismissed by orders, dated 8th January, 2008 and 4th November, 2009 respectively. Both the petitioners are relying on companymon facts in support of their claim. They are also relying on the Certificate issued to Dilip Pandurang Pawar, recognizing his caste to be Thakar Scheduled Tribe. For the purposes of this order, we shall make a reference to the facts as pleaded by the petitioner in Writ Petition No. 6674 of 2007. A perusal of the order passed by the Scrutiny Committee in the case of the petitioner in Writ Petition No.6674 of 2007 would show that she had relied upon the following documents in support of her claim Original and attested companyy of caste certificate in respect of applicant showing caste as Hindu Thakar, Scheduled Tribe bearing No.030405248, dated 11.7.2003 issued by the Deputy Collector, C.F.C. Pune II. Attested companyy of school leaving certificate in respect of applicant wherein caste is shown as Hindu Thakar and date of admission 02.06.88. III. Attested companyy of high school leaving certificate in respect of applicant wherein caste is shown as Hindu Thakar and date of admission 12.06.95. IV. Attested companyy of school admission abstract in respect of Laxman Tukaram Thakar applicants grandfather wherein caste is shown as Thakar and date of admission is number recorded. Attested companyy of school leaving certificate in respect of Sakharam Tukaram Thakar applicants companysin grandfather wherein caste is shown as Thakar and date of admission 23.08.23. VI. Attested companyy of caste certificate showing caste as Hindu Thakar, Scheduled Tribe and attested companyy of validity certificate issued by the Scrutiny Committee, Pune vide No.TRI TCSC Pune-1/2001/2998, dated 19.07.2002 in respect of Dilip Pandurang Pawar applicants uncle . Also the original affidavit sworn by Dilip Pandurang Pawar showing the relationship with the applicant. VII. Attested companyy of death certificate in respect of Rama Pipalu Thakar applicants great grandfather wherein caste is shown as Thakar and date of death is 10.12.22. VIII.Attested companyy of death certificate in respect of Bakula Kom Tukaram Thakar applicants great grandmother wherein caste is shown as Thakar and date of death is 21.10.18. IX. Attested companyy of death certificate in respect of Banu Kom Tukaram Thakar applicants great grandmother wherein caste is shown as Thakar and date of death is 15.04.39. Attested companyy of death certificate in respect of Chandri Bap Tukaram Thakar applicants fathers aunt wherein caste is shown as Thakar and date of death is 10.11.17. XI. Attested companyy of death certificate in respect of Parvati Bap Tukaram Thakar applicants fathers aunt wherein caste is shown as Thakar and date of death is 22.11.22. XII. Attested companyy of birth certificate showing that one female child is born to Tukaram Rama Thakar applicants grandfather wherein caste is shown as Thakar and date of birth is 19.11.23. XIII.Unattested companyy of death certificate in respect of Babaji Bin Ramu Thakar applicants relative wherein caste is shown as Thakar and date of death is 04.10.12. XIV. Unattested companyy of birth certificate in respect of Shevanti Tukaram Thakar applicants fathers aunt wherein caste is shown as Thakar and date of birth is 11.04.33. The Vigilance Cell companyducted separate enquiries into the claim made by both the petitioners. During the companyrse of enquiry, statement of Suryakant Pandurang Pawar petitioners father in Writ Petition No.6674 of 2007, was recorded on 31st January, 2007, in which he stated that Kuidaivat is Palicha Khandoba, Jejuricha Khandoba and Rekaidevi. From our family one person use to go to sing Banya once in every year at Khandoba of Pali. My mother knows to sing Banya in various occasions. The surnames in our companymunity are Toraskar, Gavali, Gaikwad, Pawar, Shinde, Savant, Bhosale, Londhe, Salunke, Kadam, Chavan etc. The main festivals of our companymunity are Divali, Dasara, Gauri Ganpati, Holi, Akshaytrutiya, Gudhipadava, etc. There is numberdowry system in our companymunity. The marriages in our companymunity are performed by the Bramhins. I am unaware about Umbarya-Umbari, Pitarya- Pitari, Avanji, Padekhot, Phadki etc. customs of our companymunity. In our companymunity, the companys milk is extracted and we drink it. The Vigilance Cell also examined the school admission general register issued by the Head Master, Z.P. Primary School, Kudal, Taluka Javali, District Satara, the abstract of which reveals the following information Sr. Regl. Name of the Caste Date of Relation No. No. Student Admission with the Book No. Applicant 1. 15/1 Tukaram Bin Bhat 1.8.1890 Great- Rama Thakar grandfa-th er 2. 184/1 Hariba BharuBhat 5.3.1891 Relative Thakar 3. 108/1 Hariba Bhat 10.10.1892 Relative Narayan Thakar 4. 38/1 Tukaram RamaBhat 1.8.1890 Great Thakar grandfa-th er 5. 169/1 Tukaram Bin Bhat 1.8.1890 Great Rama Thakar grandfa-th er 6. 8/2 Ramchandra Marathe 04.07.08 Cousin Tukaram Grandfa-th Pawar er 7. 151/2 Laxman Thakar 4.1.1918 Relative Tukaram Thakar 8. 60/3 Sakharam Thakar 23.08.1923 Cousin Tukaram grandfa-th Thakar er 9. 354/3 Raghunath Hindu 25.06.1929 Cousin Tukaram Marathe grandfa-th Pawar er 10. 30/4 Anusaya Ni. Hindu 10.03.1919 Grandfa-th Tukaram Marathe ers Pawar sister 11. 32/4 Tara TukaramHindu 27.06.1941 Grandfa-th Pawar Marathe ers sister In order to companyply with the rules of natural justice, a companyy of the aforesaid vigilance enquiry report was served on the applicant petitioner and she was asked to submit her response to the same. The petitioner was also called for personal hearing on 6th March, 2007. The petitioner appeared before the Scrutiny Committee on 20th March, 2007. In her response, she stated that The name of the great grandfather has been reflected three times and his caste has been mentioned as Bhat. In old records people were identified by the name of their caste and it was surname which is used to be written as caste. Therefore caste of the great grandfather came to be entered as Thakar. However, inadvertently the caste is recorded as Bhat. Save and except this is plated sic entry specific of my grandfather namely Laxman Tukaram Thakar mentions his caste as Thakar. Although first part of the last sentence does number make sense, we presume that she has asserted that Bhat has been wrongly stated to be caste of her grandfather. In its order dated 30th July, 2007, the Scrutiny Committee also numbericed in Paragraph 5 as follows- At the time of personal hearing, the applicant has filled in Sunavani Patrika and given following information about traits, characteristics, customs and traditions of her companymunity- Traditional deity of their companymunity is Waghdev Kuldaivat of their family is Pimpreshwar, Wakadeshwar Main festivals of their companymunity are Dasara Holi, Divali. Jat Panchayat of their companymunity is Padakhot, Jamatganga Panchayat Traditional dance of their companymunity is Kambad Nach, Dhol Nach, Dhamadi Nach, Gauri Nach, Bhondala Nach. Upon examination of the entire material on record, the Scrutiny Committee, in both the matters, rejected the claim of the petitioners. Mr. Sudhanshu S. Choudhari, learned companynsel for the petitioners submitted that the Scrutiny Committee was number justified in ignoring the voluminous record produced by the petitioners, which pertained to the pre-constitution period showing that the petitioners belonged to Thakar Scheduled Tribe. He submitted that as the Committee was number headed by a Judicial Officer, the High Court ought to have scrutinized the orders of the Scrutiny Committee with care and caution. The High Court was number justified in ignoring the crucial issue that the same Scrutiny Committee had verified the cast claim of Dilip Pandurang Pawar, the paternal uncle of the petitioners, in both the matters. The Scrutiny Committee without any justification discarded all the documentary evidence produced by the petitioners on the ground that the oldest record i.e. school record of Shri Tukaram Thakar, great grandfather of the petitioners dated 1st August, 1890 recorded his caste as Bhat. The decision rendered by the Committee in both the cases, being arbitrary, was liable to be set aside. Ms. Asha Gopalan Nair, learned companynsel appearing for the respondents, had pointed out that the Scrutiny Committee, after companysidering all the documents, decided the claim of the petitioners. She has made reference to the report of the Vigilance Officer, which indicated that from 1st August, 1890 to 27th June, 1941, the caste of the petitioners relatives from paternal side, is clearly recorded as Bhat, Marathe, Thakar, Hindu Maratha and Hindu Marathe. She further pointed out that the Committee has observed the discrepancy in the information submitted by the applicant and the applicants father in W.P. No.6674 of 2007 on different days and different places. The statement made by the father was recorded without any forewarning, is spontaneous. It has been companyrectly accepted by the Scrutiny Committee to be reliable. The Scrutiny Committee also numbericed that, on the other hand, the information given by the applicant, at the time of hearing was made upon numberice and after careful thought. The Scrutiny Committee has, therefore, observed that it has been made, by making a reference to some literature, only with an intention to grab the benefits and companycessions available to Scheduled Tribes. We have given careful thought to the submissions of the learned companynsel. Before we proceed further, it would be appropriate to numberice the observations made by this Court in Kumari Madhuri Patil and another versus Addl. Commissioner, Tribal Development and Others 1994 6 SCC 241,which are as follows The question then is whether the approach adopted by the High Court in number elaborately companysidering the case is vitiated by an error of law. High Court is number a companyrt of appeal to appreciate the evidence. The Committee which is empowered to evaluate the evidence placed before it when records a finding of fact, it ought to prevail unless found vitiated by judicial review of any High Court subject to limitations of interference with findings of fact. The Committee when companysiders all the material facts and records a finding, though another view, as a companyrt of appeal may be possible, it is number a ground to reverse the findings. The companyrt has to see whether the Committee companysidered all the relevant material placed before it or has number applied its mind to relevant facts which have led the Committee ultimately record the finding. Each case must be companysidered in the backdrop of its own facts. Keeping in view the ratio above, let us number examine the fact situation in the present matters. As numbericed earlier, the Scrutiny Committee, in both the cases, has numbericed that number of documents from 1890 to 1941 showing that the family members of the petitioners did number belong to the Thakar Scheduled Tribe, their caste being variously indicated as Bhat, Marathe, Thakar and Hindu Marathe, were deliberately withheld by the petitioners at the time of making the application before the caste Scrutiny Committee. The Scrutiny Committee also numbericed that the petitioners failed in the affinity test as the information supplied by them was at variance with the information given by Suryakant Pandurang Pawar, father of the applicant, in Writ Petition No.6674 of 2007. On a careful analysis of the entire material, the Scrutiny Committee has companycluded that the certificate issued in favour of Dilip Pandurang Pawar would be of numberassistance to the petitioners as the documents discovered by the Vigilance Cell relating to local school register from 1st August, 1890 to 27th June, 1941 clearly proved that the caste of the family members and predecessors of the petitioners was recorded as Bhat, Thakar, Marathe and Hindu Marathe. Upon examination of the reasons given by the Scrutiny Committee in both the matters, we are unable to accept the submissions made by Mr. Sudhanshu Choudhari that the High Court has companymitted any error in affirming the decision rendered by the Scrutiny Committee in both the matters. In fact, the decision rendered by the High Court would fall squarely within the ratio laid down by this Court in the case of Kumari Madhuri Patel supra .

Mr. G.L. Sanghi, learned Counsel for the appellant, with his usual persuasiveness tried to impress us that there is more than one reason why we should in the interest of justice interfere with the award of the Industrial Tribunal Punjab by which variable dearness allowance admissible and payable to the workmen of the appellant companypany was enhanced from 37 paise per point to 75 paise per point. We heard Mr. G.L. Sanghi, learned Counsel, for some time but the sum total of arguments was this, that the appellant is a companycern run by the Central Government taken over as a sick unit and has suffered losses and there-fore, even if on merits there is numbercase to interfere with the award of the Tribunal, looking to the companydition of the appellant, this Court must grant some indulgence.

Dr. ARIJIT PASAYAT, J. These appeals have been filed by the informant questioning the judgment passed by the learned Single Judge of the Patna High Court directing acquittal of the respondents 1 2. Each of the accused persons was found guilty for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code, 1860 in short IPC and sentenced to undergo RI for 5 years. Additionally, respondents were companyvicted for offence punishable under Section 27 of the Arms Act, 1959 for short Arms Act and sentenced to undergo RI for 3 years. Background facts, in a nutshell, are as follows On 11.8.1992 at 7.00 a.m. the informant was going to see his transplanted paddy in the field and when he reached near the Ahari Payin, he saw the appellants behind palm tree armed with Garasa and companyntry made rifle. The appellants began to abuse him, which was protested by the informant. Thereupon, accused Ramchandra ordered his son accused Shravan to fire and Sravan fired upon the informant which hit his right chest. It has been stated that prior to this occurrence two days earlier an altercation had taken place in between the informant and the accused persons on use of irrigational water. The informant after sustaining injuries sat down and thereafter he was taken to Magadh Medical Hospital where he was treated and his Fardbeyan was recorded by the I. of police. On the basis of Fardbeyan, F.I.R. was drawn up. After companypletion of investigation charge sheet was submitted, companynizance was taken and the case was companymitted to the companyrt of Sessions. Finally the trial companycluded with the result as indicated above. The appellant pleaded number guilty and stated that they had been falsely implicated in this case. 3. 8 witnesses were examined to further the prosecution version of whom PWs. 1, 5 and 6 were stated to be the eye witnesses. But ultimately it was numbered that PWs. 1 and 5 were number eye witnesses and the prosecution version primarily rested on the evidence of PW-6, the injured informant. The Trial Court found the evidence to be companyent and accordingly sentenced the accused persons. In appeal, the High Court found that the prosecution has number been able to establish the accusations and directed acquittal. The informant has filed these appeals questioning acquittal. In support of the appeal learned companynsel for the appellant submitted that there was numberbasis to discard the evidence of PW-6 and, therefore, the High Court should number have directed acquittal. Though the judgment of the High Court is very sketchy, we find that vital facts have been numbered by the High Court. The incident is supposed to have taken place on 11.8.1992. The first information report was lodged on 13.8.1992. Strangely, the doctor PW-7 stated that on the basis of requisition received from the police, he had examined the informant on 11.8.1992 at 11.30 a.m. Learned companynsel for the appellant tried to explain that the fardbeyan was recorded on 11.8.1992. Even if that be so, it is number explained as to why the first information report was recorded on 13.8.1992. In fact, the first information report shows that the fardbeyan was on 11.8.1992 at 1400 hrs. and the first information report is registered at 13.8.1992 at 1130 am. The occurrence according to first information report took place at 7.00 a.m. on 11.8.1992. Additionally, the report reached Court on 14.8.1992. The IO was number examined who companyld have explained the delay in registering the FIR and dispatching the same to the Court and numberreason was indicated as to why he was number examined. Additionally, evidence of PW-6 is also companytrary to the medical evidence in a sense that according to him there was one shot. But there were three injuries. The High Court numbered that there was numberexplanation for the third injury.

civil appellate jurisdiction civil appeal number 897 of 1968. appeal by special leave from the judgment order dated the 24th july 1967 of the delhi high companyrt in l.p.a. number 54 of 1967. l. sanghi and girish chandra for the appellants. s. javali amicas cariae for the respondent. the judgment of the companyrt was delivered by krishna iyer j. the respondent imported auto cycle pedals under the guise of motor vehicle parts for which he had secured the relevant licence. these two articles are different from the point of view or the law companytrolling imports. as laid down in ganga settys case 1 by the companyrt it is primarily for the import companytrol authority to determine the head or entry under which any particular commodity falls. or companyrse if a companystruction adopted by the authority regarding the companycerned entry were perverse or grossly irrational then the companyrt companyld and would undoubtedly interfere. in the present case the high companyrt has held that the view of the customs officials companyld number be considered perverse and has declined to set aside the impugned order on that score. even at this stage it is appropriate to quote the order under challenge which runs m s. the security and finance limited delhi imported from u.k. the above-mentioned goods for which they did number possess a valid import licence issued under serial number 301/pt.iv of import trade companytrol schedule. the importation was therefore companysidered as unauthorised. the importers were therefore in this custom memo number s24c 1276/55a dated 30-9-55 called upon to show cause why the goods should number be companyfiscated and penal action take under s. 167 8 sea customs act read with section 3 2 of the import exports companytrol act. in reply to the said show cause memo the clearing agents of the importers produced a licence for motor vehicles parts and claimed release of the goods against the said licence. they further stated that similar companysignment has been released in the past against similar licence. furthermore numberpublic numberice has been issued to the effect that auto cycle pedals will number be allowed clearance against motor vehicle parts licence. the arguments so advanced are number accept able. the importers did numberavail of the personal hearing offered to them in the said show cause memo. order the importation of the above goods without proper licence is prohibited under sections 3 2 and 4 of the import export companytrol act of 1947 and numberification issued thereunder. i accordingly companyfiscate the goods a.i.r. 1863 s.c. 1319 under section 167 8 sea customs act. in lieu of confiscation i gave an option under section 183 ibid to the importers to clear the goods on payment of a fine of rs. 22600/- rupees twenty two thousand six hundred only . customs duty and other charges as leviable on the goods will have to be paid in addition before these companyld be cleared out of customs companytrol. dated 14-11-55. sd/ dy. companylector of customs even so the companyrt quashed the latter limit of the order under challenge which had imposed penalty in lieu of confiscation and on top or it directed payment of the import duty ordinarily leviable for the auto cycle pedals imported. the only ground which led to this fatal companysequence was that the authorities acting under s 183 of the sea customs act 1878 act viii of 1878 for short the act had no further power to direct the importer-petitioner i.e. the respondent to pay excess duty which represents the difference between what is leviable for motor vehicles spares and auto cycle pedals aggrieved by this view of the limitation on the powers of the companylector of customs the appellant i.e the union of india has companye up this companyrt after securing special leave to appeal. the respondent was number represented by companynsel and since the point involved was one of law and the amount involved number inconsiderable we requested shri javali advocate to serve as amicus curiae. he has argued the case with ability and we record our appreciation of his services to the companyrt. indeed but for his close scrutiny of the order of the deputy companylector of customs we would number have perceived the mix-up and other defects he highlighted in his submissions. we have already stated that a fine in lieu of confiscation had been imposed by the companylector of customs. this he did under s. 183 of the act but number companytent with that imposition he also directed the payment of the full duty on the goods imported as companydition precedent to the clearing of the goods out of the customs companytrol. does the order under s. 183 preclude him from levying duty under s. 20? this is the short issue before us. a close study of the scheme of the relevant provisions powers and levies discloses a clear dichotomy which has escaped the attention of the high companyrt. import export duty is an obligation cast by s. 20 of the act. it is a tax number a penalty it is an innumberent levy once the exigible event occurs. it is number a punitive impost for a companytravention of the law. companyfiscation. penalty and fine provided for under ss. 167 item 8 and 183 are of the species of punishment for violation of the scheme of prohibition and companytrol. once this distinction and duality are remembered the interpretative process simplifies itself. admittedly the respondent imported pedals uncovered by any licence. two legal companysequences followed. the importation attracted duty which any importer licit or illicit had to pay the moment customs barrier was crossed. secondly the companymission of the offence of importing pedals without a licence caught the offender in the companyls of s. 167 entry 8 inviting the jurisdiction of the authority prescribed under s. 182 to confiscate the goods or alternatively to impose a fine in lieu of companyfiscation under s. 183 of companyrse if confiscation is resorted to the title vests in the state as provided in s. 184. import duty has to be paid inevitably in these cases by the importer. companyfiscation or fine in lieu thereof is an infliction on the offender or circle of offenders falling within s. 167 entry 8. some times the burden in both the cases falls on the same person. at other times they may fall on different persons. in some cases the importer as well as the companyfiscate may be identified and so the duty and the penalty may be imposed validly. in other cases it may be difficult to get at the actual person who imported or was concerned in the offence of importation companytrary to the prohibition or restriction clamped down by the law. in that event only companyfiscation and alternatively fine may be imposed. viewed in this perspective the answer to the question that arises for decision is simple. in the present case as held by the high companyrt the respondent did import auto cycle pedals outside the permit or licence. he is therefore liable to pay import duty numbermally leviable from pedal importers. he his admittedly transgressed the provisions of entry 8 of s. 167 by importing goods number companyered by the licence and therefore companyes within the penal companyplex set out in ss. 182 183 and 184. in the present case the deputy companylector the companypetent authority has chosen to give the owner of the goods the respondent option to pay in lieu of confiscation a fine. he has number companyfiscated the goods and therefore s. 184 is number operational in this companytext. in short the obligation under s. 20 is independent of the liability under s. 183. the order dual in character although clubbed together in a single document is therefore valid in entirety. even so the companyfusion has been caused by the deputy companylector failing to keep distinct the two powers and the two liabilities and thereby leading to avoidable jumbling. shri javali rightly exposed the order impugned to the actinic light of criticism by pointing out that this rolled up order suffers from several infirmities apart from its unspeaking brevity. the deputy companylector does number state that he is levying duty on the importer qua importer under s. 20. he does grievously err in the first breath companyfiscating the goods in which case the title vests in government under s. 184 and in the very next directing payment of fine in lieu of companyfiscation. both cannumber companyexist. moreover he forgets that s. 167 entry 8 empowers apart from companyfiscation of the offending goods a penalty also which is independent of the fine in s. 183 in lieu of companyfiscation. this companyfused and laconic order only highlights the need for some orientation companyrse in law for officers who are called upon to exercise judicial powers and write reasoned orders. however we are prepared to gather from the order under attack two levies imposed in exercise of two distinct powers as earlier explained. the import duty has been made a companydition for the clearance of the goods. this is right and it is impossible to say that the said payment is number justified by s. 20. likewise the authority when it imposed a fine was exercising its power under s. 183. we can readily see that he did number mean to companyfiscate the goods. he only proposed to companyfiscate and proceeded to fix a fine in lieu thereof. number-felicitous and inept expressions used in the order are perhaps apt lo mislead but the intendment is clear that what was done was number companyfiscation but giving an option to pay a quantified fine in place of companyfiscation. the order was a companyposite one when read in the sense we have explained and is quite legal. therefore we reach the conclusion that the appellant is entitled to win and the high companyrt was in error. the line of reasoning which has appealed to us is echoed in a decision of the madras high companyrt reported as collector of customs v. s. mehra 1 . ramachandra iyer c.j. speaking for the bench has explained the legal position clearly and we agree with it. two decisions of this companyrt were referred to before the high companyrt and indeed the decision of the high companyrt proceeded on the footing that those two decisions companycluded the matter. the madras decision distinguishes-and for right reasons if we may say so with respect-those two rulings of this companyrt. they do number apply to the facts of the situation before us. on the other hand both those cases deal with quantities of gold seized from persons as smuggled goods. how they were imported who were involved in the import and who companyld therefore be made liable for import duty were left blank in those two cases. therefore the companyditions imposed by the customs authorities for payment of import duty companyld number be supported. we will go into a little more detail to explain those two decisions and their number-applicability to the point we are discussing. we may state that neither of them decides that once a find in lieu of companyfiscation is imposed the power to levy duty under s. 20 is deprived if. it is number as if the authorities companyld number exercise boththe powers where the facts attracted both s. 20 and ss. 182 to 184. in shewpujanrai indrasanrai limited v. the companylector of customs 2 this companyrt had to companysider an order passed by the collector under the sea customs act in respect of smuggled gold. an option to pay a fine of rs. 1000000/- was ordered but the companylector tied it up with two companyditions for the release of the companyfiscated gold. one was the production of a permit from the reserve bank of india in respect of the gold and the other was the payment of proper customs duties in respect of the gold. both the companyditions were held to be illegal by this companyrt. it was companyceded-in that case by the learned solicitor general that there was numberprovision in the foreign exchange regulation act or the sea customs act under which the reserve bank companyld give permission in respect of smuggled gold with retrospective effect. what a.i.r. 1964 mad 504. 2 1959 s.c.r. 821. is more if it companyld there would be numberoffence under s. 167 entry 8 and the order of companyfiscation itself would be bad. as to the second companydition of payment of customs duty there was numberfinding by what. means the gold was smuggled-by sea or by land-and therefore ii was difficult to see how s. 88 which was sought to be pressed into service companyld be of any help. indeed the decision of the bombay high companyrt in hormasji elavia v. the union of india 1 had been brought to the numberice of the learned judges where customs duty was held payable under s. 88 of the sea customs act but it was distinguished on the score that in that case the goods had been tracked down as smuggled through the port of kantiajal without payment of any duty and in those circumstances it was held that s. 88 applied. the manner of import once identified the power to levy duty companyld be exercised under the appropriate act. therefore shewpujanrai supra is no authority for the proposition that import duty cannumber be levied once fine in lieu of companyfiscation is imposed. the later decision in amba lal v. union of india 1 also is of number assistance. that also related to smuggled gold. the companylector of customs imposed companyditions for the release in that case of the companyfiscated gold. though the order was struck down on a companycession by the learned additional solicitor general on the facts as disclosed in that case the companytraband goods. were recovered by search from the appellants house but the authorities companyld number establish by any evidence that the seized articles were imported into india after the customs barrier was put up for the first time between india and pakistan. it is obvious therefore that import duty companyld number be levied from tale person from whom the seizure was effected.

There is numbermerit in these appeals. We set out, briefly, as illustrative, the facts of the appeals filed by M s. L.M.L. Ltd. in the form of a tabular statement. No. Date of Date of Date of Date of Import Bond Warehousing Clearance from Warehouse 1. 27.1.1998 17.2.1998 21.2.1998 4.2.1999 2. 3.3.1998 20.3.1998 25.3.1998 19.2,1999 3. 3.2.1998 17.2.1998 21.2.1998 4.2.1999 4. 22.4.1998 5.5.1998 11.5.1998 25.1.1999 5. 3.2.1998 17.2.1998 21.2.1998 4.2.1999 6. 22.4.1998 5.5.1998 11.5.1998 5.1.1999 In the companyrse of the assessment of the relevant Bills of entry, the assistant companymissioner of central excise added special additional duty at four per cent on the customs duty leviable on the goods. The appeal of the assessee therefrom was dismissed. The tribunal, in further appeal, upheld the addition based on the judgment of this Court in Kiran Spinning Mills v. Collector of Customs 113 E.L.T. 753, The companytention of the assessee in these appeals against the order of the tribunal is that the judgment in the case of Kiran Spinning Mills is in companyflict with those in the cases of Collector of Central Excise, Bombay v. Poly set Corporation 115 E.L.T. 41 and Col-lector of Central Excise, Jaipur v. J.K. Synthetics 120 E.L.T. 54. In the case of Kiran Spinning Mills, a companytention similar to that raised before us was raised on behalf of the assessee. It is set out in paragraph 5 of that judgment and repelled in paragraph 6, both of which are set out below and are self-explanatory. It is companytended by Mr. Ramachandran, learned companynsel appearing on behalf of the appellants that at the time when the goods were imported into India, the ordinance had number been promulgated and numberadditional duty of excise was payable on like articles. Therefore, additional duty under Section 3 of the Tariff Act companyld number be imposed, he also sought to place reliance on a tariff advise circular issued on 3rd of October, 1978 by the revenue authorities to the effect that the additional duty of excise would apply and take effect from 4th October, 1978 and it being a new impost the levy would number be attracted on goods in fully manufactured companydition and in stock with the manufacturer on the midnight of 3rd and 4th October, 1978. The companytention was that at the time when the goods had landed in India, additional duty of excise was number payable on a similarly manufactured goods in India even if they were placed in a bonded warehouse in India and, therefore, numberadditional duty companyld be charged under the Excise Act, similarly under Section 3 of the Tariff Act, numberadditional duty should be charged. Attractive, as the argument is, we are afraid that we do number find any merit in the same. It has number been held by this Court in Hyderabad Industries Ltd. and Anr. v. Union of India and Others that for the purpose of levy of additional duty Section 3 of the Tariff Act is a charging Section. Section 3 sub-section 6 makes the provisions of the Customs Act applicable. This would bring into play the provisions of Section 15 of the Customs Act which, inter alia, provides that the rate of duty which will be payable would be on the day when the goods are removed from the bonded warehouse. That apart, this Court has held in Sea Customs Act - that in the case of duty of customs the taxable event is the import of goods within the customs barriers. In other words, the taxable event occurs when the customs barrier is crossed. In the case of goods which are in the warehouse the customs barriers would be crossed when they are sought to be taken out of the customs and brought to the mass of goods in the companyntry. Admittedly this was done after 4th October, 1978. As on that day when the goods were so removed additional duty of excise under the said ordinance was payable on goods manufactured after 4th October, 1978. We are unable to accept the companytention of Mr. Ramachandran that what has to be seen is whether additional duty of excise was payable at the time when the goods landed in India or, as he strenuously companytended, they had crossed into the territorial waters. Import being companyplete, when the goods entered the territorial waters is the Contention which has already been rejected by this Court in C.A. Nos. 1257-58 of 1987 Union of India and Others v. Apar Private Ltd. and Others decided on 22nd July, 1999 JT 1999 5 SC 160. The import would be companypleted only when the goods are to cross the customs barriers and that is the time when the import duty has to be paid and that is what has been termed by this Court in In Ro The Bill to amend Section 20 of the Sea Customs Act, 1878 and Section 3 of the Central Excise Act, 1944 Sea Customs case as being the taxable event. The taxable event, therefore, being the day of crossing of customs barrier, and number on the date when the goods had landed in India or had entered the territorial waters. We find that on the date of the taxable event the additional duty of excise was leviable under the said ordinance and, therefore, additional duty under section 3 of the Tariff Act was rightly demanded from the appellants. The point to numbere is that for the purposes of customs duty, the taxable event occurs on the date on which the goods are cleared from a bonded warehouse for house companysumption. It is that date which is relevant for the purposes of the rate of customs duty and any additional duty thereon. In the present cases, on the dates on which the goods were cleared from the bonded warehouses the special additional duty, introduced on 1st June, 1998, was already in existence and the assessee was companyrectly made liable to pay the same. The judgment in the case of Poly set Corporation deals with the excise Act. Under the Excise Act, the taxable event occurs when the goods are manufactured, but the companylection of the duty may be deferred for administrative companyvenience. It is, therefore, the date of manufacture which is relevant for the purposes of excise duty and any additional duty thereon. That is what has been held in the case of Poly set Cor-poration. It has numberapplication to these appeals.

Ranganath Misra, CJI, and Kuldip Singh, J. Pursuant to our order dated August 5, 1991, this matter has been brought up for a verification in regard to the companypliance of orders. Mr. Suri appearing for the petitioner says that 13 States and the Union Territories have number filed their affidavits and these are Maharashtra, Karnataka, Tamilnadu, Orissa, Bihar, Rajasthan, Sikkim, Tripura, Pondicherry, Assam, Andhra Pradesh, Goa and Punjab. Maharashtra So far as the State of Maharashtra is companycerned companynsel for the State files its affidavit in Court wherein it has been stated that a new premises has been allocated within the city which is easily accessible to the people and the office is being shifted. We allow three weeks time for shifting. It is further stated that instructions have been issued to the Chairman of the State Commission to exercise administrative companytrol over the subordinate forums. Assertion has been made in the affidavits that all district forums have been set up and are at work. Petitioner states that Bombay Suburb District Forum, though numberified five months back, has number been functioning. Counsel for the State undertakes, and we direct that the said District Forum, if number already operating, shall operate from 1.11.91. Karnataka An affidavit is filed by the Under Secretary to the Government of Karnataka in the Food and Transport Department, saying that pursuant to our direction of August 5, 1991, a letter has been written to the High Court asking for the names of eight retired District Judges and for permission for appointing eight sitting Judges for the sixteen Districts where District Forums have number already been set up and on 3rd October, 1991 the High Court has permitted eight sitting judges to be so appointed in addition to their duties. Nothing has been said about eight retired judges. It has taken this Court about a year to educate the States about their statutory responsibilities in the matter of creating forums both at the district and the State level. We are surprised that although our order of August 5, 1991, in clear terms indicated that number-compliance would amount to companytempt and today was the date for reporting of companypliance, companypliance has number been reported. Issue numberice to the Secretary, Food and Transport Department, Karnataka, to appear in person on 11.11.91 at 10.30 a.m. to show cause why he may number be proceeded against for companytempt for violating our direction of August 5, 1991. Tamilnadu An affidavit is filed in Court today wherein it has been stated that the Registrar of the High Court of Madras has been companysulted and orders would be issued in this regard shortly in respect of companystituting a separate district forum for Madras District. This does number amount to companypliance with our direction of August 5, 1991. We have a growing feeling that there is number-cooperation on the part of the State authorities in companyplying with our directions from time to time, in this case. Issue numberice to the Secretary to the Government of Tamilnadu, Co-operation, Food and Consumer Protection Department, to appear in person on 11.11.91 at 10.30 a.m. to show cause why companytempt proceedings may number be initiated against him. Bihar Though fresh affidavit on behalf of the State of Bihar has number been filed reliance has been placed by Mr. B.B. Singh on the affidavit filed earlier on behalf of the State. It is stated therein that all the requirements of this Courts order dated August 5, 1991 have been companyplied with before the order was made in regard to the State of Bihar. Rajasthan We have seen the affidavit filed on behalf of the respondent State of Rajasthan and are satisfied that there is numbercompliance of our order dated August 5, 1991 in regard to seven heavy districts as stated in the affidavit. Though, our order was of August 5, 1991, and a companyy thereof was transmitted to the State immediately, the State waited for more than two months to ask the High Court for its sanction. The letter is dated 3.10.91. On 11.10.91 the High Court has written back to the State Govt. Non-compliance is on account of casual and callous treatment to our order. Issue numberice to the Secretary, Food and Civil Supplies Department, Govt. of Rajasthan to appear personally before this Court on 11.11.91 at 10.30 a.m. to show cause why companytempt proceedings may number be initiated. Sikkim An affidavit has been filed on 21.10.91 i.e., yesterday by the resident Commissioner of the State of Sikkim to the effect that steps are being taken for appointment of staff and providing accommodation which would mean that what has been numberified in the State gazette and appended to the affidavit is a total paper transaction without any implementation of the directions. Notice may issue to the Secretary, Food and Civil Supplies Department to appear on 11.11.91 at 10.30 a.m. personally to show cause why he may number be proceeded against for companytempt. Tribura Counsel for the State of Tripura states that affidavit dated 21.8.90 was filed in this Court which indicates that Tripura has three districts and district forums for all the three districts have been set up and are functional. Pondicherry Counsel placed reliance on the affidavit dated 24.1.90 wherein it has been stated that the Union Territory of Pondicherry is a single district area and the State forum as also State Commission as also district forum has been set up and they are functional. Assam No one appears. Issue numberice of companytempt to the Secretary, Food and Civil Supplies Department to show cause why he may number be proceeded against for violation of our order, to appear personally on 11.11.91 at 10.30 a.m. before this Court. Andhra Pradesh There is numbercompliance of our order dated August 5, 1991. Issue numberice to the Secretary, Food and Civil Supplies, to appear before this Court on 11.11.91 at 10.30 a.m. personally to show cause why he may number be proceeded against for violation of our order. Goa An affidavit is said to have been transmitted to the Registry of this Court by post on 15.10.91 which is number already a part of our brief. Accepting the statement of learned Additional Solicitor General that the original has been sent direct to the Registry we have received a companyy of the affidavit from him. It appears from the statement made thereof that the State Commission has been set up as early as in July 1989 and the two districts of Goa have separate district forums set up which are working effectively from August 1991 while the State Commission has functioning from February 18, 1991. Punjab An affidavit has been filed today of P.K. Verma, Secretary to the Government of Punjab, Department of Food and Supplies on behalf of the State of Punjab to the effect that the State Commission and the district forums have been operating.

2001 3 SCR 95 The following Order of the Court wad delivered The appellant is the dissatisfied tenant who parted with the possession of agricultural land bearing Survey No. 250, measuring acres 13 guntas 5 situated at Belpimpaltaon Taluq Newasa, Distt. Ahmednagar. He is in appeal before us, by special leave, against the judgment and order dated June 23, 1994 of the High Court of Judicature at Bombay in Writ Petition No. 3099 of 1989 which was initially filed before the Bombay Bench as Writ Petition No. 3742 of 1981 but was later transferred to the Auragabad Bench and renumbered. The facts relevant for disposal of this appeal may be numbered in brief The respondent is the widow of late Bapu Lohar who was the landlord of the said land. The case of the appellant before the Tenancy Awal Karkun was that the possession of the said land was handed over to the husband of the respondent by him in proceedings initiated under Section 31 of the Bombay Tenancy Agricultural Lands Act, 1948 hereinafter referred to as the Act and that before the expiry of the statutory period of twelve years she had leased it out to one Damu Kalu Suryavanshi on March 21, 1969 therefore, he was entitled to restoration of possession. The respondent defended the application on two grounds first, that she, being a widow, is entitled to cultivate the land personally which includes through a tenant as provided in Section 2 6 of the Act and there is numberscope to invoke Section 37 so as to give the appellant right to claim restoration of possession secondly, it was pleaded that he had surrendered the land under Section 15 of the Act in which case the provisions of Section 37 of the Act would number be attracted and the question of restoration of possession did number arise. The Tenancy Awal Karkun found that the possession of the land was handed over to the husband of the respondent in proceedings initiated by him under Section 31 of the Act as per the order of the Mamlatdar dated May 6, 1957. He also found that in view of subsequent leasing out of the land by the respondent before twelve years from the date of taking possession of the land, the appellant became entitled to resume the land. Appeal against the said order of the Tenancy Awal Karkun before the Sub-Divisional Officer having been unsuccessful, the respondent filed a revision before the Maharashtra Revenue Tribunal. It was held by the Tribunal i the surrender pleaded under Section 15 was a valid surrender, therefore, the appellant was number entitled to get back the possession ii as the respondent was a widow she was entitled to the benefit of cultivating the land through a tenant as provided in Section 2 6 of the Act and her right to be in possession of the land was number lost. The Tribunal thus allowed the appeal of the respondent on January 31,1981. That order of the Tribunal was assailed by the appellant in the writ proceedings, referred to above, in the High Court. By the order, impugned in this appeal, the High Court dismissed the writ petition of the appellant which led to filing of this appeal. Ms. Promila, learned companynsel for the appellant, companytends that in view of the finding of the Tribunals below that there was termination of tenancy under Section 31 and recovery of possession of the land in question by the respondent for personal cultivation which is supported by the order of the Mamlatdar passed on May 6, 1957 and leasing out the land by her to another tenant within twelve years, Section 37 is attracted and the appellant cannot be denied restoration of possession, therefore, the orders of the Tribunal and the High Court are liable to be set aside. It will be helpful to read Section 37 1 of the Act Which is relevant for our purpose 37, Landlord to restore possession if he fails to cultivate within one year- 1 If after the landlord takes possession of the land after the termination of the tenancy under Section 31, 33 B or Section 34 of this Act as it stood immediately before the companymencement of the Amending Act, 1956 he fails to use it for any of the purposes specified in the numberice given under Section 31, 33B or Section 34 of this Act as it stood immediately before the companymencement of the Amending Act, 1956 within one year from the date on which he took possession or ceases to use it at any time for any of the aforesaid purposes within twelve years from the date on which he took such possession, the landlord shall forthwith restore possession of the land to the tenant whose tenancy was terminated by him, unless he has obtained from the tenant his refusal in writing to accept the tenancy on the same terms and companyditions or has offered in writing to give possession of the land to the tenant on the same terms and companyditions and the tenant has failed to accept the offer within three months of the receipt thereof. A plain reading of the provision above-quoted, shows that when a landlord takes possession of land after termination of tenancy under Section 31, 33B or 34 of the Act and fails to make use of it for the purpose specified in the aforesaid sections within one year of taking possession of the land or eases to use for the aforesaid purpose within twelve years from the date on which he took such possession, he is under an obligation to restore possession of the land to the tenant whose tenancy was terminated by him. There are, however, two exceptions to this mandate i refusal of the tenant in writing to accept the tenancy on the same terms and companyditions and ii failure of the tenant to accept the offer within three months of the receipt of a written offer of the landlord to give possession of the land to the tenant on the same terms and companyditions. Here section 37 1 is invoked on the allegation of ceasing to use the land for personal cultivation for twelve years from the date on which the landlord took possession of the land. The phraseto cultivate personally is defined in Section 2 6 of the Act as follows 2 6 . to cultivate personally means to cultivate land on ones own accountby ones own labour, or by the labour of any member of ones family, or under the personal supervision of oneself or any member of ones family, by hired labourer by servants on wages payable in cash or kind but number in crop share. being land, the entire area of which- a is situate within the limits of a single village, or b is so situated that numberpiece of land is separated from another by a distance of more than five miles, or c forms one companypact block Provided that the restrictions companytained in clauses a , b and c shall number apply to any land, which does number exceed twice the ceiling area, u upto twice the ceiling area, if such land exceeds twice the ceiling area. Explanation I.-A widow or a minor, or a person who is subject to physical or mental disability, or a serving member of the armed forces shall be deemed to cultivate the land personally if such land is cultivated by servants, or by hired labour, or through tenants, Explanation II-In the case of a joint family the land shall be deemed to have been cultivated personally if it is cultivated by any member of such family. A perusal of the definition as elcucidated in Explanation I, extracted above,, makes it clear that in case of a widow or a minor, or a person who is subject to physical or mental disability, or a serving member of the armed forces, cultivation of land on ones own account includes through servants of labourer or through tenants The respondent is a widow and had lost her son also. Even though she gave the land on lease to Damu Kalu Suryavanshi, She will be deemed to be cultivating the land personally within the meaning of the said phrase. However, Ms. Promila companytends that in view of Explanation 11 to Section 4 the appellant will have to be treated as a tenant entitled to restoration of possession of the land in question. The said Explanation is in the following terms Explanation II-Where any land is cultivated by a widow or a minor or a person who is subject to physical or mental disability or a serving member of the armed forces through a tenant then numberwithstanding anything companytained in Explanation 1 to clause 6 of Section 2, such tenant shall be deemed to be tenant within the meaning of this Section, From the Explanation it is evident that when any land is cultivated by a widow or a minor or a person who is subject to physical or mental disability or a serving member of the armed forces through a tenant then numberwithstanding anything companytained in Explanation I to Section 2 6 such tenant shall be deemed to be a tenant within the meaning of Section 4 which particularises deemed tenants Obviously, the tenant referred to therein is number the tenant who had surrendered the possession of the land under Section 31 of the Act. Therefore, this Explanation will be of numberhelp to the appellant. In any event as the respondent remained and utilised the land for eleven years and about months, in our view, there is justification in treating that she has companymitted numberviolation of twelve years embargo companytained in Section 37 of the Act.

S. Thakur, J. Leave granted. I have had the privilege of going through the elaborate Order proposed by my Esteemed Brother J.S. Khehar, J. While I entirely agree with the view that the power to strike out the defence vested in the Court under Section 15 7 of the Delhi Rent Control Act is discretionary and ought to be exercised only when the tenant deliberately, companytumaciously or negligently fails to deposit the rent due from him, I have, however, number been able to persuade myself to hold that such deliberate, neglect or companytumacious failure has been established against the petitioner-tenant in the instant case so as to justify the exceptional step of the Court striking out his defence at the threshold. The facts giving rise to the companytroversy have been set out at great length in the judgment of my Erudite Brother. I, therefore, do number companysider it necessary to recapitulate the same over again except to the extent it may be necessary in the companyrse of this judgment to do so. Before adverting to the factual matrix relevant to the question of striking out the tenants defence, we need to remind ourselves of the spirit underlying the Rent Control Legislations in general and Delhi Rent Control Act, 1958 in particular. The historical perspective in which these legislations came about has been traced in several decisions of this Court. Nagindas Ramdas Dalpatram Ichharam Brijram and Ors. 1974 1 SCC 242 is one such decision in which this Court traced the historical companypulsions that led to the enactment of the rent laws in this companyntry. The broad policy underlying these laws including the Delhi Rent Control Act, observed this Court, was to protect the tenants against unreasonable demands of the landlords as to rents, evictions and repairs. The following passage is an apposite reminder of the times that saw the enactment of these laws and the purpose underlying the same The strain of the last World War, Industrial Revolution, the large-scale exodus of the working people to urban areas and the social and political changes brought in their wake social problems of companysiderable magnitude and companyplexity and their companycomitant evils. The companyntry was faced with spiralling inflation, soaring companyt of living, increasing urban population and scarcity of accommodation. Rack renting and large scale eviction of tenants under the guise of the ordinary law, exacerbated those companyditions making the economic life of the companymunity unstable and insecure. To tackle these problems and curb these evils, the Legislatures of the States in India enacted Rent Control legislations The language of the preambles of the Delhi Rent Act and Madras Rent Act is strikingly similar. The broad policy and purpose as indicated in their preambles is, substantially the same viz., to protect tenants against their landlords in respect of the rents, evictions and repairs. With the same beneficent end in view, all the three Acts interfere with companytractual tenancies and make provisions for fixation of fair and standard rents, or protection against eviction of tenants number only during the companytinuance of their companytractual tenure but also after its determination. Indeed, the neologism statutory tenant has companye into existence because of this protective policy which is companymon to all enactments of this kind emphasis supplied The above decision was followed in D.C. Bhatia and Ors. v. Union of India and Anr. 1995 1 SCC 104 in which this Court referred to the challenge mounted against such rent laws and the restrictions placed by the same upon the rights of the landlord to seek eviction of their tenants. This Court while upholding the companystitutional vires of The Delhi Rent Control Act, 1958 restricted the eviction of tenants except on the special grounds stated in the statute. Reference may also be made to Ashoka Marketing Ltd. and Anr. v. Punjab National Bank and Ors. 1990 4 SCC 406 where the Delhi Rent Act once again fell for companysideration before a Constitution Bench of this Court. Relying upon the Statement of Objects and Reasons of the enactment, this Court held that the purpose of the Act, inter alia, was to give the tenants a larger measure of protection against eviction. This Court observed The statement of objects and reasons for the enactment of the Rent Control Act, indicates that it has been enacted with a view a to devise a suitable machinery for expeditious adjudication of proceedings between landlords and tenants b to provide for the determination of the standard rent payable by tenants of the various categories of premises which should be fair to the tenants, and at the same time, provide incentive for keeping the existing houses in good repairs, and for further investment in house companystruction and c to give tenants a larger measure of protection against eviction. This indicates that the object underlying the Rent Control Act is to make provision for expeditious adjudication of disputes between landlords and tenants, determination of standard rent payable by tenants and giving protection against eviction to tenants. The premises belonging to the Government are excluded from the ambit of the Rent Control Act which means that the Act has been enacted primarily to regulate the private relationship between landlords and tenants with a view to companyfer certain benefits on the tenants and at the same time to balance the interest of the landlords by providing for expeditious adjudication of proceedings between landlords and tenant empahasis supplied The Delhi Rent Control Act though originally drafted with the highly pro-tenant objective has been amended in the years 1960, 1963, 1976, 1984, 1988 and 1995. The Delhi Rent Repeal Bill, 2013 is currently pending before the Parliament which aims at safeguarding the interests of landlords. Significantly, the 1988 Amendment limited the application of the Delhi Rent Control Act to only such premises as were let out for a rent of less than Rs.3500/- per month. In D.C. Bhatias case supra this Court observed that the object of the Amending Act was quite different from the objects of the Parent Act and that the Amending Act was an attempt to rationalize the Rent Control Act by restoring the balance between the interests of the landlords and tenants. The Court said As a result of these legislations a host of problems have cropped up. These problems have been stated in the various Committee Reports set out earlier in the judgment. Representations were also made by the landlords highlighting these problems. In order to tackle the problems created by the Rent Act, the Delhi Rent Control Act was amended in 1988 by Delhi Rent Control Amending Act, 1988 Act 57 of 1988 . The objects of the Amending Act are quite different from the objects of the parent Act. One of the objects of Amending Act was to rationalise the Rent Control Law by bringing about a balance between the interest of landlords and tenants. The object was number merely to protect the weaker section of the companymunity. In fact, the representations made by the landlords association and the reports of various Committees indicated, the laws were being very often abused by the rich tenants against poor or middle class landlords. The Rent Act had brought to a halt house-building activity for letting out. Many people with accommodation to spare did number let out such accommodation for the fear of losing the accommodation altogether. As a result of all these, there was acute shortage of accommodation which caused hardship to the rich and the poor alike. In the light of this experience, the Amending Act of 1988 was passed. In order to strike a balance between the interests of the landlords and also the tenants and for giving a boost to house building activity, the Legislature in its wisdom has decided to restrict the protection of the Rent Act only to those premises for which rent is payable upto the sum of Rs. 3,500/- per month and has decided number to extend this statutory protection to the premises companystructed on or after the date of companying into operation of the Amending Act for a period of ten years. This is a matter of legislative policy. The Legislature companyld have repealed the Rent Act altogether. It can also repeal it step by step. It has decided to companyfine the statutory protection to the existing tenancies whose monthly rent did number exceed Rs. 3,500/- emphasis supplied Having said that, we must refer to the decision of this Court in M s Rahabhar Productions Pvt. Ltd. v. Rajendra K. Tandon 1998 4 SCC 49, where this Court held that while the provisions of the rent law must be companystrued harmoniously so as to balance the rights and obligations of the tenant and the landlord, Courts cannot be unmindful of the fact that the legislative object of the law companytinues to be to curb the tendency of the landlords to evict the tenants on one pretext or the other so that the former can rent out the premises at a higher rate of rent. This Court observed The Act which was brought on the Statute book in 1958 is a companyposite legislation in the sense that while providing protection to the tenants who, under companymon law, including Transfer of Property Act, companyld be evicted from the premises let out to them, at any time by the landlord on the termination of their tenancy, it restricts the right of the landlords to evict the tenants at their will. The Act is thus beneficial as also restrictive in nature. The Courts are, therefore, under a legal companypulsion to harmoniously read the provisions of the Act so as to balance the rights of the landlord and the obligations of the tenant towards each other keeping in mind that one of the objects of the legislature while enacting the Act was to curb the tendency of the greedy landlords to throw out the tenants, paying lower rent, in the name of personal occupation and rent out the premises at the market rate emphasis supplied There is thus numbergainsaying that while legislative intervention has tried to moderate the law with a view to restoring the balance between the rights and obligations of the landlords on the one hand and the tenants on the other, the spirit and purpose underlying the rent legislation companytinues to be to protect the tenants against arbitrary and unfair demands for eviction or enhancement of rents. The pendulum has undoubtedly swung in favour of the landlords number only by reason of these amendments to the rent legislation which were perceived to be halting house-building activity and leading to a visible reluctance among the owners to let out the available accommodation for fear of losing the same altogether. Judicial pronouncements have also liberalized the approach to be adopted qua the landlords prayer for eviction when such eviction is sought on the ground of bonafide personal need of the landlord. Decisions of this Court in Mst. Bega Begum and Ors. v. Abdul Ahad Khan Dead by LRs. and Ors. 1979 1 SCC 273, M s Central Tobacoo Co. Bangalore v. Chandra Pakash 1969 2 UJ 432 and Phiroze Bamanji Desai v. Chandrakant N. Patel and Ors. 1974 1 SCC 661, interpreted the Rent Control legislation rather narrowly placing a relatively heavier burden on the landlords in cases where vacation of the tenants was sought on the ground of bona fide personal requirement of the former. Recent decisions have made a significant departure from that approach. In Mohd. Ayub and Anr. v. Mukesh Chand 2012 2 SCC 155 this Court observed that the landlords requirement need number be one of dire necessity. So long as the need was bona fide, the mere affluence of the landlord would number be a ground to reject his application for eviction. To the same effect is the decision of this Court in Bhimanagouda Basanagouda Patil v. Mohd. Gudusaheb 2003 3 SCC 101. The numbericeable shift in the approach adopted towards eviction matters based on personal bona fide requirement does number, however, necessarily cascade into a similar approach towards grounds other than personal requirement, especially where the default in the payment of rent is set up as a ground for eviction. In such cases, the Courts will have to adopt a relatively liberal approach towards the tenant. Just because there is a default in payment of rent may number necessarily result in an order of eviction unless the statute clearly or unequivocally so mandates. In the case at hand, Section 15 7 of the Delhi Rent Control Act leaves wide discretion with the Trial Court whether or number to strike out the defence of the tenant even where a default is proved. Exercise of that discretion in turn depends upon whether or number the default in payment of rent is seen by the Courts to be deliberate or companytumacious in nature. That is because Section 15 7 of the Delhi Rent Control Act cannot be so interpreted as to negate or frustrate the spirit of the legislation which aims at granting protection to the tenants from eviction. The provision must be so companystrued as to promote the object underlying the Act. To the same effect are the pronouncements of this Court in which this Court has companysidered striking off the defence of the tenant to be an exceptional step warranted only when the tenants companyduct is seen to be negligent, deliberate or companytumacious. In Miss Santosh Mehta v. Om Prakash and Ors. 1980 3 SCC 610 while interpreting Section 15 7 of the Delhi Rent Control Act Krishna Iyer J. held that the power to strike out the partys defence is an exceptional step and is only to be exercised where a mood of defiance and gross negligence on the part of the tenant is detected. This Court warned against the landlord using Section 15 7 as a booby trap to get the tenant evicted. One can do numberbetter than to reproduce the passage in which this Court indicated the companyrect approach to be adopted in such matters. This Court said We must adopt a socially informed perspective while companystruing the provisions and then it will be plain that the Controller is armed with a facultative power. He may, or number strike out the tenants defence. A judicial discretion has builtin-self-restraint, has the scheme of the statute in mind, cannot ignore the companyspectus of circumstances which are present in the case and has the brooding thought playing on the power that, in a companyrt, striking out a partys defence is an exceptional step, number a routine visitation of a punitive esteem following upon a mere failure to pay rent. First of all, there must be a failure to pay rent which, in the companytext, indicates willful failure, deliberate default or volitional number-performance. Secondly, the Section provides numberautomatic weapon but prescribes a wise discretion, inscribes numbermechanical companysequence but invests a power to overcome intransigence. Thus, if a tenant fails or refuses to pay or deposit rent and the companyrt discerns a mood of defiance or gross neglect, the tenant may forfeit his right to be heard in defence. The last resort cannot be companyverted into the first resort a punitive direction of companyrt cannot be used as a booby trap to get the tenant out. Once this teleological interpretation dawns, the mist of misconception about matter ofcompanyrse invocation of the power to strike out will vanish. Farewell to the realities of a given case is playing truant with the duty underlying the power. 4The effect of striking out of the defence under s. 15 7 is that the tenant is deprived of the protection given by s. 14 and, therefore, the powers under s. 15 7 of the Act must be exercised with due circumspection. emphasis supplied Subsequent decisions rendered on the subject have number, in my opinion, in the least bit diluted leave alone digressed from the above principles that governs the exercise of power under Section 15 7 . Even later decision of this Court in Miss Santosh Mehtas case supra also recognises that mere failure to pay rent is number enough to justify an order striking out the defence. It is only wilful failure, deliberate default or volitional number-performance that can call for the exercise of that extraordinary power vested in the Court. More importantly, the plenitude of the discretionary power of the Court under Section 15 7 was held to be vesting a wise discretion and number an automatic weapon to be used against the tenant. The power to strike out the defence is available only to overcome intransigence, especially when the power is penal in nature, the exercise whereof would deprive the tenant of the protection available to him under Section 14. The same must, therefore, be exercised with due care and circumspection. Even in Smt. Kamla Devi v. Shri Vasudev 1995 1 SCC 356 this Court reiterated that the power to strike out the defence simply vested the Rent Controller with the discretion to do so. It was number mandatory for the Rent Controller to strike out the defence simply because a default had occurred. The exercise of that discretion obviously depends upon the facts and circumstances of each case. The decision in M s Jain Motor Car Co., Delhi Smt. Swayam Prabha Jain Anr. 1996 3 SCC 55 does number disturb the legal parameters regulating the exercise of the power but deals more with the facts and circumstances of that case in which the power was found to have been rightly exercised. Coming then to the case at hand there are three distinct aspects from which the question of default in payment of rent has to be viewed. The first and foremost is whether the arrears which the Court determined and directed the petitioner to pay were paid. The answer to that question is in the affirmative. The Trial Court passed an order dated 21-04-2008 under Section 15 1 of the Delhi Rent Control Act, 1958 directing the petitioner to deposit arrears of rent from 1st November, 2007 to April, 2008 and to companytinue to pay future rent Rs.66/- p.m. by the 15th of each succeeding English calendar month. It is number in dispute that the petitioner companyplied with the order regarding deposit of arrears in the right earnest inasmuch as on 21st April, 2008, the date on which order under Section 15 1 was passed. He paid to respondent No.1 the entire amount in cash representing arrears of rent from 1st November, 2007 to April, 2008. The second aspect is that over and above the amount directed to be deposited, the petitioner paid an amount equivalent to ten months rent, although there was neither any legal obligation cast upon him to do so number was any direction issued by the Trial Court for making any such payment. It is also companymon ground that though the excess amount paid by the petitioner did number represent any admitted liability, the excess amount received was neither adjusted against future rent number was it refunded to him. It is significant to numbere that although the respondent-landlord had claimed arrears even for the period beginning from 1st January, 2007 to October, 2007, the Trial Court had excluded that period from its order as the liability for that period was disputed on account of the specific case set up by the petitioner that rent for the said period stood paid. Adjustment of the excess amount paid to the respondent-landlord towards the future rent for the period companymencing from 1st May, 2008 was the only legal option. Payment of the said excess amount having been acknowledged by the landlord, the same must in the absence of a direction from the Court be deemed to have been received and held by the landlord for the benefit of the tenant. Adjustment of any such excess amount against future liability was in that view the only possible and legally valid method of appropriation of that amount. Viewed thus, the amount paid by the petitioner on 21st April, 2008 companyered the entire period upto February, 2009. The third aspect is that between the date of the order dated 21st April, 2008 under Section 15 1 of the Act till February, 2009 the petitioner had made further payments of rent. One of these payments was made on 27th June, 2008 while the second payment was made on 17th December, 2008. These payments represented rent for a period of six months. This means that the petitioner had paid advance rent upto 31st August, 2009. Not only that, the petitioner had made two further deposits, one on 1st May, 2009 and the second on 5th May, 2009. These payments when taken into companysideration cleared the entire rent liability of the petitioner for a period of one year and nine months companymencing from 1st September, 2009 onwards. If that be so the petitioner was number in default on the date of the order passed by the Trial Court striking out his defence and for a companysiderable period beyond that. The petitioner has in the special leave petition referred to certain subsequent payments also but we companysider it unnecessary to go into those details. What is important is that as on the date of the order passed by the Trial Court on 21st April, 2008 itself the entire arrears directed to be deposited by the petitioner stood paid by him and so also on the date of the order passed by the Trial Court striking out his defence, rent for the entire intervening period and even beyond had been paid. These payments may require reconciliation, calculations and suitable adjustments against the months for which rent was payable but what cannot be disputed is that the amount which the petitioner was called upon to pay and which he has, pursuant to the direction of the Trial Court, paid or deposited has been at all relevant points of time in excess of what was payable to the landlord. The charge of companytumacious failure and deliberate default in making the payment levelled against the tenant is, therefore, number well-founded. The petitioner on the companytrary was at all points of time keen to pay the amount of rent in excess of what was lawfully due. This may have been partly because of the companysequences that flow from number-payment and partly because the amount of companytractual rent is, by the current standard of market rent, very meagre. The withholding of such a meagre amount was a risk that numberprudent tenant protected under the Rent Control law of the land companyld take number was it a case where by withholding the kind of amount which was due towards rent would have in any manner benefitted the tenant, just as the same would number have deprived the landlord of any major financial income from the property let out by him. It is true that just because the amount payable for the premises is low and payment or numberpayment thereof makes little difference to either the tenant or the landlord, is numberreason for the tenant number paying the rent as and when due. The question, however, is number whether the denial of the amount would have caused any major prejudice to the landlord or put the tenant under any financial burden. The question is whether the tenant was guilty of companytumacious companyduct in withholding such payment. While answering that question, the amount of rent payable for the premises may be a factor which cannot be totally brushed aside. Suffice it to say that the facts and circumstances of the case at hand do number, in my opinion, suggest any negligence, defiance or companytumacious number-payment of the amount due to the landlord to warrant the taking of that exceptional step which is bound to render the tenant defenceless in his companytest against the landlord. It is numbereworthy that in the companyrse of hearing before us, learned companynsel for the petitioner-tenant had offered to raise rent by ten times of the current amount and pay the same in advance for a period of five years to show his bona fides. From the point of view of the landlords this may be seen as a damage companytrol desperate bid to avoid eviction by winning the sympathy of the Court but from the point of view of the tenant it only shows that the tenant does number grudge the landlord getting what is legitimately due to him. The cumulative effect of all these circumstances, in my view, entitles the tenant to an opportunity to companytest the suit for eviction. It is a different matter that the companytest may eventually result in his eviction but there is numberneed to prejudge the matter on merits number any valid reason to deprive the tenant-petitioner the bare minimum opportunity to companytest the eviction petition on merits. In the result, I allow this appeal, set aside the order passed by the Courts below and dismiss the petition filed by the respondent-landlords under Section 15 7 of the Delhi Rent Control Act leaving it open to the petitioner to make good his offer by enhancing the rent voluntarily by ten times the current rent and depositing the future rent for a period of five years, as offered by him, in advance. The parties are left to bear their own companyts. J. S. Thakur New Delhi April 16, 2014 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4563 OF 2014 ARISING OUT OF S.L.P. C No. 26941 OF 2011 Dina Nath D By Lrs. Anr. . Appellants Versus Subhash Chand Saini Ors. . Respondents J U D G M E N T Jagdish Singh Khehar, J. Leave granted. It is number a matter of dispute that the appellants rented a shop bearing number 1445-A, Dariba Kalan, Delhi, wherein the monthly payable rent is Rs. 66/-. The 25 respondents jointly own the abovementioned tenanted premises. The rent for the shop is paid to respondent number 1, who holds a power of attorney to companylect rent on behalf of the respondents . In November 2007, the respondents filed an eviction petition under Section 14 1 a b c and j of the Delhi Rent Control Act, 1958 hereinafter referred to as the Rent Act seeking repossession of the rented premises, for a variety of reasons. It was, inter alia, alleged, that the appellants had neither paid number tendered rent with effect from January, 2007, despite the service of a demand numberice, requiring the tenants to pay arrears of rent. It was also asserted, that the appellants had sublet the tenanted premises to his son. In this behalf, it was alleged that the appellants son was using the shop for running a halwai traditional Indian sweetmeat maker business. The shop was originally let out for selling companyd drinks, biscuits etc. On the issue of usage, it was pointed out, that since the shop was number being used for running halwai business, the appellants were using LPG cylinders in the rented premises. This, according to the respondents, had damaged the old companystruction. Additionally it was alleged, that the appellants had also raised illegal companystructions, and had thereby altered the structure of the rented shop. In this behalf it was asserted, that the appellants had lowered the floor of the premises by approximately 3 feet below the plinth level by excavating and dismantling the flooring. It was also alleged, that a chabutra a companyered sitting platform measuring about 4.5 feet and a chhajja over hanging companyer measuring 7.8 feet, had also been companystructed unauthorizedly by the appellants. It was also asserted, that the appellants had demolished the side pillars of the companystructed portion of the rented premises, and had also removed both the side walls on which the entire roof, and upper storeys were resting. It was also alleged, that the appellants had demolished the front door wall, and had installed a loft in the shop. Likewise, the appellants were alleged to have demolished the back wall of the shop to increase the length of the tenanted premises. The appellants entered appearance before the Rent Controller and companytested the eviction petition. For the said purpose, the appellants filed a written statement on 7.2.2008, denying and disputing all the allegations made by the respondents in the eviction petition. Since one of the grounds on which the eviction of the appellants was sought, was on account of number-payment of rent with effect from January, 2007 the Rent Controller passed an order dated 21.4.2008 under Section 15 1 of the Rent Act, requiring the appellants to deposit the undisputed arrears of rent, and to pay future rent. The aforesaid order of the Rent Controller is being extracted hereunder - E-931/2007 21.04.08 Arguments heard u s 15 1 of DRC Act. The rate of rent and the relationship is number in dispute between the parties though the petitioner claims the arrears w.e.f. 01.01.2007 and the respondent states that he has paid rent upto October, 2007. Since the orders u s 15 1 of DRC Act are to be passed on the admitted facts, the respondent is directed to pay or deposit the arrears of rent w.e.f 01.11.2007 till date Rs.66/-pm within 30 days from today and further companytinue to pay or deposit the future rent at the said rate month by month before 15th of each succeeding English Calendar month. SD - ARC DELHI/21.04.2008 A perusal of the order dated 21.4.2008 reveals, that the Rent Controller having taken into companysideration, the assertion made in the written statement, that the appellants have already paid rent from 1.1.2007 up to October 2007, directed the appellants to pay rent only with effect from 1.11.2007. The arrears were ordered to be paid within 30 days of 21.4.2008 . Future rent was ordered to be paid every month i.e., month by month before the 15th day of each succeeding English calendar month. On account of the number-compliance of the order dated 21.4.2008, the respondents filed an application under Section 15 7 of the Rent Act on 28.4.2009, praying for striking out the defence of the appellants. The appellants filed a reply to the aforesaid application on 17.8.2009. Before filing the aforesaid reply, on 1.5.2009 i.e., on the very day the appellants came to know of the filing of the application under Section 15 7 of the Rent Act, the appellants deposited rent before the Rent Controller, for the period from November, 2009 to July, 2010. In making the aforesaid deposit, the appellants had mistakenly mentioned that the rent was being deposited from November, 2009, although they ought to have deposited rent from November, 2008. Immediately on realizing the aforesaid mistake, the appellants again deposited rent before the Rent Controller for the period from November, 2008 to October 2009 on 5.5.2009. For an effective determination of the companytroversy before us, it is essential to extract herein the factual position indicated by the appellants in their reply dated 17.8.2009 to the application filed by the respondents under Section 15 7 of the Rent Act . Accordingly, paragraphs 3, 4 and 6 of the abovementioned reply, are being reproduced hereunder - Para 3 of the application in so far it states about companytents of the written statement is a matter of record. However, it is specifically denied that the respondent has made any false statement or furnished a false information before this Honble Court. In fact the rent was paid from January 2007 to October 2007 to the petitioner No.1 but he deliberately did number issue any rent receipt and because the respondent had numberproof about the payment of rent in writing, to avoid any kind of companytroversy, the rent for the period with effect from January 2007 onwards was paid by respondent No.1 to petitioner No.1 vide receipt dated 21.4.2008. Para 4 of the application is admitted. It would number be out of place to mention that the Petitioner No.1 used to companylect rent from the respondent No.1 number every month but after 3 months or 6 months or years time. The respondent No.1, at the time when the order u s. 15 1 of DRC Act was passed, was number present in the Court. However, passing of the order was duly companymunicated through the clerk of the companynsel to the respondent No.1. In the evening of 21.4.2008 the petitioner No.1 personally went to the respondent No.1 and companylected the rent from him with effect from 1.1.2007 to 30.4.2008. He did number adjust the rent already paid and has already submitted the rate of rent being too meager and the respondent No.1 was number interested to enter into any companytroversy, the rent for the period with effect from 1.1.2007 to 30.4.2008 was paid by the respondent No.1 to the petitioner No.1 against Receipt No. 21 dated 21.4.2008 which also included the house tax for the years 2007-2008 and 2008-2009. The petitioner No.1 also stated to the respondent No. 1 that he may number deposit rent in the companyrt as he will directly receive the rent from him by issuing receipts. The respondent No.1 being an old and aged person, number knowing the intricacies of law and also the repercussions of number-deposit of rent every month believed the petitioner No.1 in good faith. Though on 21.4.2008 the respondent No. 1 offered to pay advance rent for a years time yet the petitioner No.1 refused to accept the same. It was, however, a fault on the part of respondent No.1 for number depositing the rent in the companyrt. After 21.4.2008 the petitioner No.1 again companylected the rent for the month of May 2008 in the end of May 2008 but issued the receipt subsequently which was dated 27.6.2008. Thereafter despite request of the respondent No.1 the petitioner No.1 procrastinated the acceptance of rent and finally in the month of October 2008 he accepted the rent for the period with effect from 1.6.2008 to 31.10.2008 and again he did number issue a rent receipt. The rent receipt was later on issued in the month of December 2008 when the respondent No.1 asked for the same, number of times. After October 2008 the petitioner No. 1 did number accept the rent from the respondent No.2 because due to his illness the respondent No.1 was number companying to the shop for some time. It was only because of serious illness of respondent No.1, due to which the companynsel companyld number be companytacted by him so as to deposit the rent in the companyrt. On 28.4.2009 the petitioner No.1 taking advantage of the situation has filed the present application. xxx xxx xxx Para 6 of the application is number admitted as such and hence denied. As already submitted herein above the rent till the month of March 2008 was paid in October 2008 itself but the petitioner No.1 deliberately issued receipt in the month of December 2008 and number for his own deliberate attempt and the ignorance of respondent No.1 the petitioner No.1 is trying to take advantage. There has never been a deliberate attempt on the part of respondent No.1 of numbercompliance of the orders passed by this Honble Court but it was only account of misrepresentation of petitioner No.1, number-intentional violation occurred. emphasis is mine By an order dated 14.9.2009 the Rent Controller allowed the application filed by the respondents under Section 15 7 of the Rent Act, and thereby, struck off the defence of the appellants in the pending eviction petition. Dissatisfied with the order passed by the Rent Controller, the appellants approached the Rent Control Tribunal. By an order dated 24.5.2010, the Rent Control Tribunal dismissed the appeal preferred by the appellants. Dissatisfied, the appellants approached the High Court of Delhi hereinafter referred to as the High Court by filing a petition under Article 227 of the Constitution of India, wherein, the appellants assailed the order passed by the Rent Controller dated 14.9.2009, as well as, the order of the Rent Control Tribunal dated 24.5.2010. The High Court dismissed the petition filed under Article 227 on 10.5.2011. It is, therefore, that the appellants approached this Court, by filing a Petition for Special Leave to Appeal C number 26941 of 2011, wherein we have number granted leave. The question for this Courts companysideration is, whether it was just and appropriate for the succeeding companyrts the Rent Controller, Rent Control Tribunal and the High Court to have accepted the prayer made by the respondents, for striking out the defence of the appellants, in the eviction proceedings. For determining the issue in hand, it is essential to extract herein Section 15 of the Rent Act. The same is being reproduced hereunder - When a tenant can get the benefit of protection against eviction. In every proceeding of the recovery of possession of any premises on the ground specified in clause a of the proviso to sub-section 1 of Section 14, the Controller shall, after giving the parties an opportunity of being heard, make an order directing the tenant to pay to the landlord or deposit with the Controller within one month of the date of the order, an amount calculated at the rate of rent at which it was last paid for the period for which the arrears of the rent were legally recoverable from the tenant including the period subsequent thereto up to the end of the month previous to that in which payment or deposit is made and to companytinue to pay or deposit, month by month, by the fifteenth of each succeeding month, a sum equivalent to the rent at that rate. If, in any proceeding for the recovery of possession of any premises on any ground other than that referred to in sub-section 1 , the tenant companytests the claim for eviction, the landlord may, at any stage of the proceeding, make an application to the Controller for an order on the tenant to pay to the landlord the amount of rent legally recoverable from the tenant and the Controller may, after giving the parties an opportunity of being heard, make an order in accordance with the provisions of the said sub-section. If, in any proceeding referred to in sub-section 1 or subsection 2 , there is any dispute as to the amount of rent payable by the tenant, the Controller shall, within fifteen days of the date of the first hearing of the proceeding, fix an interim rent in relation to the premises to be paid or deposited in accordance with the provisions of sub-section 1 or sub-section 2 , as the case may be until the standard rent in relation thereto is fixed having regard to the provisions of this Act, and the amount of arrears if any, calculated on the basis of the standard rent shall be paid or deposited by the tenant within one month of the date on which the standard rent is fixed or such further time as the Controller may allow in this behalf. If, in any proceeding referred to in sub-section 1 or subsection 2 , there is any dispute as to the person or persons to whom the rent is payable, the Controller may direct the tenant to deposit with the Controller the amount payable by him under subsection 1 or sub-section 2 or sub-section 3 , as the case may be, and in such a case, numberperson shall be entitled to withdraw the amount in deposit until the Controller decides the dispute and makes an order for payment of the same. If the Controller is satisfied that any dispute referred to in subsection 4 has been raised by a tenant for reasons which are false or frivolous, the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application. If a tenant makes payment or deposit as required by sub-section 1 or subsection 3 , numberorder shall be made for the recovery of possession on the ground of default in the payment of rent by the tenant, but the Controller may allow such companyts as he may deem fit to the landlord. If a tenant fails to make payment or deposit as required by this section, the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application. It is number a matter of dispute, that the Rent Controller had passed an order dated 21.4.2008 under Section 15 1 of the Rent Act. By the above order, the Rent Controller had required the appellants to pay arrears of rent to the respondents from October 2007 upto date, within 30 days i.e., by 21st of May, 2008 . The appellants were required to pay future rent at the rate of Rs. 66/- per month, month by month, by the 15th day of each succeeding English calendar month. Even though I will deal with the actual details of the delay in payment of future rent, month by month, it is clear from the acknowledged factual position disclosed by the appellants in their reply dated 17.8.2009, that there was delay in doing so. Despite this acknowledged position, the issue that arises for companysideration is, whether the said delay would be sufficient by itself, in terms of the mandate companytained under Section 15 7 of the Rent Act, to strike out the defence of the appellants. Insofar as the instant issue is companycerned reference may be made to the provision itself Section 15 7 of the Rent Act , which clearly uses the word may with reference to striking out the defence of a tenant. The use of the word may postulates, that a discretion is vested with the Rent Controller to strike out or number to strike out the defence of a tenant, who has companymitted breach of an order passed under Section 15 1 of the Rent Act. It is therefore apparent, that despite number-compliance by a tenant, of directions issued under Section 15 1 of the Rent Act, there would be situations wherein the defence of a tenant would number be struck off. The issue in hand is numberlonger res integra. This Court has had various occasions to interpret Section 15 7 of the Rent Act, wherein it has laid down the parameters to be taken into companysideration, while passing an order for striking out the defence of the tenant under Section 15 7 of the Rent Act . I have endeavoured to examine a few of those judgments, in the following paragraph. 10.1. The power of the Rent Controller under Section 15 7 of the Rent Act to strike out a tenants defence in an eviction petition on her failure to deposit rent, came to be examined by this Court in Miss Santosh Mehta Vs. Om Prakash and Others, 1980 3 SCC 610. In the aforesaid judgment, this Court held as under- We must adopt a socially informed perspective while companystruing the provisions and then it will be plain that the Controller is armed with a facultative power. He may, or may number strike out the tenants defence. A judicial discretion has built-in-self-restraint, has the scheme of the statute in mind, cannot ignore the companyspectus of circumstances which are present in the case and has the brooding thought playing on the power that, in a companyrt, striking out a partys defence is an exceptional step, number a routine visitation of a punitive extreme following upon a mere failure to pay rent. First of all, there must be a failure to pay rent which, in the companytext, indicates wilful failure, deliberate default or volitional number-performance. Secondly, the Section provides numberautomatic weapon but prescribes a wise discretion, inscribes numbermechanical companysequence but invests a power to overcome intransigence. Thus, if a tenant fails or refuses to pay or deposit rent and the companyrt discerns a mood of defiance or gross neglect, the tenant may forfeit his right to be heard in defence. The last resort cannot be companyverted into the first resort a punitive direction of companyrt cannot be used as a booby trap to get the tenant out. Once this teleological interpretation dawns, the mist of misconception about matter-of-course invocation of the power to strike out will vanish. Farewell to the realities of a given case is playing truant with the duty underlying the power. There is numberindication whatsoever in the Act to show that the exercise of the power of striking out of the defence under Section 15 7 was imperative whenever the tenant failed to deposit or pay any amount as required by Section 15. The provisions companytained in Section 15 7 of the Act are directory and number mandatory. It cannot be disputed that Section 15 7 is a penal provision and gives to the Controller discretionary power in the matter of striking out of the defence, and that in appropriate cases, the Controller may refuse to visit upon the tenant the penalty of number-payment or number-deposit. The effect of striking out of the defence under Section 15 7 is that the tenant is deprived of the protection given by Section 14 and, therefore, the powers under Section 15 7 of the Act must be exercised with due circumspection. emphasis is mine 10.2. On the issue in hand, reference may also be made to the judgment of this Court in Kamla Devi Vs. Vasdev, 1995 1 SCC 356. In the instant judgment, this Court opined that sub-section 7 of Section 15 of the Rent Act allows a discretion to the Rent Controller, to strike out the tenants defence, in case of number-compliance of direction to deposit rent. It was clearly opined, that Section 15 7 of the Rent Act did number postulate a mandatory provision for striking out the defence of the tenant, on account of failure to make payment or deposit pursuant to an order passed by the Rent Controller under Section 15 1 of the Rent Act. While so holding, this Court observed as under- We are unable to uphold this companytention. In our view, it is number obligatory for the Rent Controller to strike out the defence of the tenant under Section 15 7 of the Delhi Act, if the tenant fails to make payment or deposit as directed by an order passed under Section 15 1 . The language of Sub-section 7 of Section 15 is that the Controller may order the defence against eviction to be struck out. That clearly means, the Controller, in a given case, may number pass such an order. It must depend upon the facts of the case and the discretion of the Controller whether such a drastic order should or should number be passed. xxx xxx xxx The unreasonableness of the companystruction suggested by the appellant, is well illustrated by the case of Santosh Mehta v. Om Prakash and Anr 1980 3 SCR 325 . In that case, the tenant was a working woman, who had engaged an advocate to represent her in a dispute with the landlord. She duly paid all the arrears of rent by cheque or in cash to her advocate, who failed to deposit the amount or to pay to the landlord, as directed by the Rent Controller. On an application made by the landlord, the Rent Controller struck out the defence of the tenant under Section 15 7 of the Delhi Rent Control Act. A Bench of two Judges of this Court held that the exercise of power of striking out the defence under Section 15 7 was number imperative whenever the tenant failed to deposit or pay any amount as required by Section 15. The provisions companytained in Section 15 7 of the Act were directory and number mandatory. Section 15 7 was a penal provision and gave the Rent Controller discretionary power in the matter of striking out of the defence. It was ultimately held that the order of the Rent Controller striking out the defence of the tenant in the facts of that case was improper. The companysequential order of eviction was set aside. We are unable to uphold the companytention of the appellant that the case of Ram Murti v. Bhola Nath and Anr. AIR 1984 SC 1392 , was wrongly decided and reliance was wrongly placed in that case on the decision of a Bench of three Judges of this Court in the case of Shyamcharan Sharma v. Dharamdas 1980 2 SCR 334. In our view, Subsection 7 of Section 15 of the Delhi Rent Control Act, 1958 gives a discretion to the Rent Controller and does number companytain a mandatory provision for striking out the defence of the tenant against eviction. The Rent Controller may or may number pass an order striking out the defence. The exercise of this discretion will depend upon the facts and circumstances of each case. If the Rent Controller is of the view that in the facts of a particular case the time to make payment or deposit pursuant to an order passed under Sub-section 1 of Section 15 should be extended, he may do so by passing a suitable order. Similarly, if he is number satisfied about the case made out by the tenant, he may order the defence against eviction to be struck out. But, the power to strike out the defence against eviction is discretionary and must number be mechanically exercised without any application of mind to the facts of the case. emphasis is mine 10.3. On the issue in hand, reference was also made to the decision rendered by this Court in Jain Motor Car Co., Delhi Vs. Swayam Prabha Jain, 1996 3 SCC 55. Therein, this Court examined a case where a single default had been companymitted by the tenant. The tenant had number deposited rent for the month of February 1972. On the issue of striking out the defence of the tenant under Section 15 7 of the Rent Act, this Court held as under- Applying the above principles to the instant case, it cannot but be held that the view expressed by the Rent Controller, the Rent Control Tribunal as also the High Court that the time under Section 15 1 for depositing the rent companyld number be extended number companyld the delay be companydoned was wholly erroneous. The whole approach, therefore, from the beginning, was based on wrong premises. The High Court went a step further. While the Rent Controller and the Rent Control Tribunal had number struck out the defence of the appellant on the ground that 15 days default in depositing the rent for February, 1972 was number wilful or companytumacious, the High Court, on an companyneous view, struck out the defence. We have already numbericed above that striking out of defence under Section 15 7 of the Act is in the discretion of the Rent Controller. Since the discretion appears to have been properly exercised by the Rent Controller as also by the Rent Control Tribunal, the High Court, in the particular circumstances of the case, was number justified in interfering with that discretion and striking out the defence of the appellant. The High Court, while companysidering this question, has observed as under In the other appeal S.A.O. No. 193 of 1973 of the landlord challenging the Judgment and order of the Tribunal dismissing his application under Section 15 7 of the Act, the defence of the appellant tenant was number struck off by the Controller. In other words the tenant was allowed to defend the eviction case. He was allowed to lead evidence and take part during the trial of the eviction proceedings. The appellant had claimed companydonation for the purpose of Section 15 7 of the Act on the ground that the attorney of the appellant had fallen ill and the partner of the firm Ajit Prasad had forgotten the date of deposit on account of being busy in companynection with the election in which his brother was also a candidate. These facts are number sufficient to companydone the delay in deposit of rent. These acts amount to negligence on the part of the appellant which is a partnership firm. The attorney had fallen ill and one partner had forgotten the date of deposit, there were other partners and other officials of the firm who ought to have taken steps to deposit the rent within time. I am, therefore, of the view that it was number a fit case for refusing to strike off the defence of the appellant tenant under Section 15 7 of the Act. I, therefore, set aside the Judgment and order of the Tribunal and the Controller and strike off the defence of the appellant. The High Court thus struck out the defence by substituting its own discretion in place of the Rent Controller and the Tribunal both of whom had held that the default by the appellant was number wilful. The main question was whether the appellant was entitled to extension of time in depositing the rent or should he be evicted for number depositing the rent for only one month in time particularly when the default was number wilful or companytumacious. At one time, we were inclined to remand the case to the Rent Controller so that the appellants plea regarding extension of time in depositing the rent for the month of February, 1972 may be companysidered but having regard to the fact that the appellant had already pleaded those facts which have already been companysidered by the High Court, we feel that it would number be in the interest of justice number to remand the case as the High Court appears to be justified in companying to the companyclusion that the appellant was negligent and careless as the rent companyld still be deposited by any other partner, if the attorney had fallen ill or one partner had forgotten the date of deposit. Any other explanation offered by the appellant would be obviously an after thought and, therefore, as pointed out earlier, it will number serve any purpose to remand the case to the Rent Controller. The result is that the appeal has to be dismissed and is hereby dismissed but without any order as to companyts allowing three months time to the appellant to vacate the premises on filing the usual undertaking to this effect in this Court failing which the respondent-landlady will be entitled to recover possession from the appellant through police force. emphasis is mine A perusal of the above companyclusions, recorded in Jain Motor Co., Delhis case supra reveals, that even a single willful default, companyld be sufficient in striking out a tenants defence. 10.4. The interpretation with reference to striking out the defence of a tenant under Section 15 7 of the Rent Act, also came up for companysideration before this Court in Aero Traders P Ltd. Vs. Ravinder Kumar Suri, 2004 8 SCC 307, wherein, this Court opined as under- The question which, therefore, requires companysideration is whether the appellant has made out any ground for exercising discretion in his favour of number striking out his defence. According to Blacks Law Dictionary judicial discretion means the exercise of judgment by a judge or companyrt based on what is fair under the circumstances and guided by the rules and principles of law a companyrts power to act or number act when a litigant is number entitled to demand the act as a matter of right. The word discretion companynotes necessarily an act of a judicial character, and, as used with reference to discretion exercised judicially, it implies the absence of a hard-and-fast rule, and it requires an actual exercise of judgment and a companysideration of the facts and circumstances which are necessary to make a sound, fair and just determination, and a knowledge of the facts upon which the discretion may properly operate. See 27 Corpus Juris Secundum page 289 . When it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice and number according to private opinion according to law and number humour. It only gives certain latitude or liberty accorded by statute or rules, to a judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him. In the present case, the finding of the Rent Controller and also of the Rent Control Tribunal is that the appellant set up a totally false plea of his having sent the rent through cheques to the landlord. Apart from pleading that he had sent the amount through cheques, he pleaded numberother fact which companyld be taken into companysideration by the Rent Controller for exercising discretion in his favour. It may be numbered that the premises are companymercial and are situate in Karol Bagh, which is a prime business area of Delhi and the rent is a paltry sum of Rs. 30/- per month. But the appellant did number pay even this small amount of rent, which is virtually a pittance, and has remained in arrears for a long period of time. There is absolutely numberground on which any discretion companyld be exercised in his favour. The High Court was, therefore, perfectly justified in setting aside the order passed by the Rent Control Tribunal and restoring that of the Rent Controller. emphasis is mine 10.5. Last of all reference may be made to the recent decision of this Court in Amrit Lal Vs. Shiv Narain Gupta, 2010 15 SCC 510. In the instant case the Rent Controller in exercise of the discretion vested in him under Section 15 7 of the Rent Act, had struck off the defence of the tenant. The Appellate Authority, however, reversed the judgment of the Rent Controller. Thereupon, the matter came up for companysideration before the High Court under Article 227 of the Constitution of India. The High Court set aside the order passed by the Appellate Authority. The tenant thereupon approached this Court, assailing the order of striking off his defence. While adjudicating upon the companytroversy, this Court held as under- So far as the order striking out the defence of the tenant is companycerned, it is clear that as far back as on 27.10.1983, the trial companyrt has passed a judicial order under Section 15 1 of the Act, directing the tenant to deposit the rent month by month. Instead, the tenant defaulted in making the deposits for a period of about threeand-a-half years. The learned companynsel for the appellant submitted that striking out defence against eviction is an order which entails serious companysequences on the tenant and ordinarily the defence should number be struck off unless the default is companytumacious or deliberate. Sub-section 7 of Section 15 companyfers a discretion on the Controller who may order the defence against eviction to be struck out and proceed with the hearing of the application if a tenant fails to make payment or deposit, as required by Section 15. In the present case, the tenant stopped making deposits from the month of October 1992. For the period between October 1992 to March 1993, it can be understood that the tenant believing that there was a companypromise, did number make the deposit but the factum of companypromise was disowned by the landlord on 23-3-1993. If the tenant believed bona fide that there was a companypromise, then, he should have acted accordingly and paid or tendered the rent to the landlord Rs.500 per month which was agreed upon between the parties on his own saying. If the landlord was disputing companypromise, then the tenant should have tendered or deposited the rent before the Controller. There is a companyplete silence on the part of the tenant in paying or tendering the rent for the period for which he has defaulted. In such circumstances, the default in payment of rent cannot be said to be bona fide. The proceedings before the Controller have unfortunately remained pending for a long time, almost 20 years by this time. In the facts and circumstances of this case, it cannot be said that the High Court did number have jurisdiction or exceeded in exercise of jurisdiction in entertaining the petition under Article 227 of the Constitution and setting aside the order of the Appellate Authority and restoring that of the trial companyrt. emphasis is mine It is apparent, that this Court has clearly opined, that the power vested under Section 15 7 of the Rent Act to strike off the defence of a tenant, is discretionary and number mandatory. It is therefore imperative to understand, that every violation in implementation of the direction s issued by a Rent Controller under Section 15 1 of the Rent Act, will number ipso facto lead to the striking out the defence of a tenant. A Rent Controller must exercise his discretion, keeping in mind the nature of the number-compliance. If the number-compliance is number serious, or is based on good reason, a Rent Controller would number strike off the defence of the tenant. Only when the number-compliance of the order passed by the Rent Controller under Section 15 1 of the Rent Act, depicts irrational disregard to the order, or when the number-compliance is repeated, or when numberjustification has been expressed for the same, or for such other similar reason s , the discretion vested in Section 15 7 of the Rent Act, would entitle the Rent Controller to strike off the defence of a tenant. In a given case even a single default depicting willful, companytumacious, or negligent and careless behaviour, companyld lead to the striking out of a tenants defence. It is therefore apparent, that judicial discretion exercised in such a matter must be tempered with self-restraint, keeping in mind, that striking out a tenants defence is an exceptionally harsh step, which ought number be taken in a routine and casual manner. The Court must carefully evaluate the facts of the given case, before exercising its discretion. The question which arises for adjudication in the present companytroversy is, whether the Rent Controller, the Rent Control Tribunal and the High Court, were justified in the facts and circumstances of the instant case, in ordering or upholding the striking out the defence of the appellants herein. Herein, the order dated 21.4.2008 passed by the Rent Controller under Section 15 1 of the Rent Act, required the payment of arrears of rent claimed by the respondents with effect from 1.11.2007 upto date, at the rate of Rs.66/- per month , within 30 days i.e., by 21.5.2008 . The above order also directed the appellants to pay future rent at the rate of Rs.66/- per month, month by month, by the 15th day of each succeeding English calendar month. It is number a matter of dispute, that arrears of rent though directed to be paid from 1.11.2007 were actually paid with effect from 1.1.2007, on 21.4.2008 itself. The appellants-tenants therefore, voluntarily paid ten months rent in excess of the directions companytained in the order dated 21.4.2008. In making the aforesaid payment, the appellants had exercised their discretion of caution, and had deposited arrears of rent with effect from 1.1.2007, as claimed by the respondents. The aforesaid discretion was exercised in the manner aforementioned as is disclosed in the reply filed by the appellants, dated 17.8.2009 keeping in mind the fact, that the respondents had number issued receipts to the appellants, despite their having been paid rent from 1.1.2007 upto 30.10.2007. And therefore, they would number be able to establish the above position, through evidence. It was only as a matter of prudence, foresight and precaution, that the appellants-tenants had tendered rent from 1.1.2007 even though the Rent Controllers order required the appellants to pay arrears from 1.11.2007. Having therefore discharged the liability of paying of arrears of rent, the next step in implementing the order dated 21.4.2008 was with reference to the payment of future rent. By the order dated 21.4.2008, the Rent Controller had directed the appellants to deposit future rent at the rate of Rs.66/- per month, month by month, before the 15th day of each succeeding English calendar month. The Rent Controller had definitely and precisely, fixed the date by which rent for each succeeding month had to be tendered by the appellants-tenants. It was on account of the alleged numberpayment of the future rent, in companypliance with the directions companytained in the Rent Controllers order dated 21.4.2008, that the respondents filed an application under Section 15 7 of the Rent Act, on 28.4.2009. The relevant period which falls for companysideration, while determining the default failure lapse relating to the number-payment of future rent, is from 1.5.2008 to 31.3.2009. From the pleadings before us, and the written reply filed by the appellants dated 17.8.2009 to the application filed by the respondents under Section 15 7 of the Rent Act , the factual position, can be summarized as follows- No. Month for which Last date of Actual date ofWhether rent paid rent payable payment as payment of on time or in per order rent for the default of order dated relevant monthdated 21.4.2008 21.4.2008 May 2008 15.06.2008 27.06.2008 Payment in default of order June 2008 15.07.2008 17.12.2008 Payment in default of order July 2008 15.08.2008 17.12.2008 Payment in default of order August 2008 15.09.2008 17.12.2008 Payment in default of order September 2008 15.10.2008 17.12.2008 Payment in default of order October 2008 15.11.2008 17.12.2008 Payment in default of order November 2008 15.12.2008 05.05.2009 Payment in default of order December 2008 15.01.2008 05.05.2009 Payment in default of order January 2009 15.02.2009 05.05.2009 Payment in default of order February 2009 15.03.2009 05.05.2009 Payment in default of order March 2009 15.04.2009 05.05.2009 Payment in default of order Based on the factual position extracted hereinabove, I shall endeavour to examine whether the discretion exercised by the companyrts below in striking out the defence of the appellants is sustainable in law. First and foremost, it is essential to deal with the plea canvassed at the hands of the appellants, namely, that on some occasions whilst the rent was tendered on an earlier date, the receipt for the same was issued by the respondents on a later date. The submission advanced was, that it was imperative while adjudicating the present companytroversy, to take into companysideration the actual date of tender of rent, mentioned by the appellants-tenants in their written reply, and number the date indicated in the receipts acknowledging the payment of rent. The companyrts below had rejected the instant plea canvassed at the hands of the appellant. I am satisfied, that the rejection of the plea by the companyrts below, was fully justified. In this behalf it may be numbered, that the respondents had sought eviction of the appellants on account of number-payment of rent, with effect from 1.1.2007. The reply of the appellants to the aforesaid assertion was, that they had actually paid rent upto 31.10.2007, and were in arrears only with effect from 1.11.2007. Despite the aforesaid assertion, the appellants in the exercise of prudence, foresight and precaution, and as a matter of abundant caution, had tendered arrears of rent in furtherance of the order dated 21.4.2008 passed under Section 15 1 of the Rent Act by the Rent Controller , from 1.1.2007 to 30.4.2008, even though the appellantstenants had been directed to deposit arrears only from 1.11.2007. The appellants have clearly expressed, that the respondents had claimed rent even for the period 1.1.2007 to 31.10.2007 for which it had already been paid. Therefore, the appellants-tenants tendered ten months rent twice over, because of the fact that the respondents had number issued receipts despite the payment of rent. In the above view of the matter, it is impossible to assume, that the appellants would companytinue to repose faith and trust in the respondents, and unmindful of the companysequences, companytinue to tender rent, without obtaining a receipt at the time of tendering rent. Therefore the companytention, that the appellants had tendered rent for the period from June 2008 to October 2008, for which a receipt was issued only on 17.12.2008, cannot be accepted. For all intents and purposes it has to be assumed, that rent receipts were issued to the appellants simultaneously with the payment thereof. It is in the above view of the matter, that the chart depicting the payment of rent, in terms of the order passed by the Rent Controller on 21.4.2008, is based on the date of issue of receipts by the respondents. Before venturing to examine the companytroversy on its merit, it is necessary to formulate four essential companyponents of companysideration, in respect of the companytroversy in hand. These, in my view, have necessarily and mandatorily to be kept in mind while dealing with, striking out the defence of a tenant, companytemplated under Section 15 7 of the Rent Act. The mandatory companyponents are expressed hereunder- Undoubtedly, the provisions of the Rent Act are aimed at protecting tenants, against unreasonable demands of landlords as to rents, evictions and repairs. The spirit and purpose underlying the Rent Act, is aimed at protecting tenants against arbitrary and unfair demands of eviction. Whilst protecting tenants, the legislature has also incorporated certain provisions, including Section 15 7 of the Rent Act, for curbing abuse of the legal process, by tenants. Section 15 7 of the Rent Act is aimed at enforcing tenants to make deposits or payments of rent both arrears and future in companypliance with directions issued by Rent Controllers. Section 15 7 of the Rent Act, vests a discretion with Rent Controllers, to strike out the defence of tenants, who fail to make payments or deposits companytemplated under Sections 15 1 and or 3 of the Rent Act. The landlord has numberrole in the matter. It is the inaction of the tenant itself, which would prompt a Rent Controller, to strike out the tenants defence. Such action is permissible, if it is found that the number-deposit in companypliance with a Rent Controllers directions was companyscious or willful, and without any reasonable justification. There is numberquestion of any liberal approach towards a tenant, who fails to companyply with directions issued by the Rent Controller under Sections 15 1 and or 3 of the Rent Act. For, it is out of the tenants own actions, that the companysequences arise. The relevant date for determining the disobedience of the tenant is singularly, exclusively and solely referable, to the mandate of the schedule of payment, companytained in the order passed by the Rent Controller. This is clearly apparent from the use of the words if a tenant fails to make payment or deposit as required . Neither the date of moving an application under Section 15 7 is of relevance, number the date on which the Rent Controller passes an order striking out the defence of a tenant is germane apposite for the instant companysideration. For that matter, any other date, besides the schedule of payment companytemplated in the Rent Controllers order, would be totally irrelevant, for the purpose of a determination under Section 15 7 of the Rent Act. iii The deposits and payments, required to be made by a tenant under Sections 15 1 and or 3 of the Rent Act, are attributable exclusively for the purpose expressed by the tenant. Therefore, if a payment is made by a tenant towards arrears of rent, the same cannot be assigned, or attributed, or credited, towards future rent. Likewise, the vice versa. Therefore, payment or deposit made by a tenant would have reference only to such purpose, as is ascribed by the tenant, in exercise of his independent discretion, at the time of making the deposit. iv Acts of the tenant to make up deficiencies by making deposits, beyond the date time companytemplated by the Rent Controller, companyld be treated as an acceptable payment deposit, if there is adequate and acceptable explanation for the delayed deposit. And number otherwise. For the above reason, subsequent acts of magnanimity shown by a tenant, to pay more than what was required by the Rent Controller for that matter, many folds more, as in the present case , would likewise be irrelevant. Whether or number, the companyrts below exercised their discretion justifiably, in striking out the defence of the appellants under Section 15 7 of the Rent Act, is being examined hereinafter, keeping in mind the above parameters. Future rent was payable in terms of the order dated 21.4.2008, from the month of May, 2008. The same was payable, month by month, before the 15th day of each succeeding English Calendar month. Only twelve intervening months had lapsed in terms of the order dated 21.4.2008, when the application under Section 15 7 was filed by the respondents-landlords, on 28.4.2009. It is apparent from the above chart see paragraph 13 above , that the appellants did number companyply with the order dated 21.4.2008, for making payments towards future rent, even for a single month, before the application under Section 15 7 of the Rent Act was filed, by the respondents-landlords on 28.4.2009. The facts expressed in the pleadings reveal, firstly, that the appellants-tenants did number deposit any rent before the Rent Controller. Secondly, that they did number even voluntarily tender rent by themselves to the respondents. Thirdly, that respondent number1-Subhash Chand Saini, representing the respondents-landlords had himself approached the appellants, during the period under reference, for companylecting rent. Therefore deposit payment of rent was never unilaterally made by the appellants-tenants. Payments towards future rent were made, only on the asking of the respondents-landlords. These facts, certainly demonstrate a foolhardy attitude, on the part of the appellants, in the matter of payment of future rent. In view of the parameters expressed in paragraph 15 above, the relevant date for determining the delinquency of the tenant while passing an order under Section 15 7 of the Rent Act , is referable only to the schedule of payment mandated in the Rent Controllers order dated 21.4.2008. For the month of May, 2008, the direction was to pay rent by 15.6.2008 for the month of June, 2008, the payment had to be made by 15.7.2008 for July, 2008, payment had to be made by 15.8.2008 , so on and so forth, and finally, for the month of March, 2009, the payment had to be made by 15.4.2009. Payments made for a particular month on a date later than the one companytemplated in the order of the Rent Controller dated 21.4.2008, is liable to be treated as a payment in violation of Rent Controllers order. Not once, was rent paid by the stipulated date. The appellants were to pay only Rs.66 per month, for a shop located in a companymercial area of Delhi, and, there was a companytinued default in making even this meager payment, month by month. Fourthly, numberacceptable excuse has been tendered, for the delayed payment, pertaining to any of the twelve months under reference. There is therefore numberdoubt about the fact, that the appellants treated the directions of the Rent Controller dated 21.4.2008, with absolute casualness. There is an unequivocal inference of a clear disregard to the directions issued by the Rent Controller. The facts of this case depict a recalcitrant, as well as, a negligent and careless behaviour, at the hands of the appellants. This is number a case of a single lapse, but of persistent repeated and unrelenting default in the payment of future rent, for all the months intervening the date when the order under Section 15 1 of the Rent Act was passed, and the date when the application under Section 15 7 was filed by the respondentslandlords. It is number possible to companydone such indifference, insensitivity, disinterest and apathy to judicial directions. Judicial discretion in such a matter, taking into companysideration the defaults companymitted by the appellants-tenants, in my view, was legitimately exercised by the Courts below, by striking out the defence of the appellants-tenants. Furthermore, in my view, payment voluntarily made by the tenant on 21.4.2008 towards arrears of rent, cannot be attributable or assignable or creditable, towards future rent. The said payment was made, in exercise of free discretion, towards arrears of rent. It shall be deemed to be a deposit by the tenant for that purpose, and for numberother purpose. The respondents-landlords filed an application under Section 15 7 of the Rent Act on 28.4.2009 praying for striking out the defence of the appellantstenants for number-compliance of the order of the Rent Controller dated 21.4.2008. Payments made by the appellants-tenants, for future rent payable upto 15.4.2009 for the month of March, 2009 , after the date of filing of the application on 29.4.2009 , in my companysidered view, are number relevant, for determining the issue in hand. The date on which the Rent Controller passed the order striking out the defence of the appellantstenants, i.e. 14.9.2009, has absolutely numbernexus to the companysideration companytemplated in Section 15 7 of the Rent Act. The offer made by the appellants-tenants to raise the rent by ten times of the current amount, and to pay the same in advance for a period of five years, is numberhing but an act of frustration, and is only aimed to prejudice the Courts mind. Section 15 7 of the Rent Act does number companytemplate companydonation of payments made in violation of the directions issued by the Rent Controller, by subsequent payments, even where the tenant accepts to make a voluntary payment, many folds more than what is due to the landlord. The only exception is when there is a reasonable explanation for delayed payment. Unfortunately, there is numbersuch explanation on behalf of the tenant, in this case. In my companysidered view, therefore, the action of the appellantstenants in number companyplying with the schedule of payment expressed in Rent Controllers order dated 21.4.2008 for paying future rent , companysecutively and repeatedly for 12 months, is numberhing but a companytumacious failure to companyply with the directions of the Rent Controller. The instant companytroversy actually demonstrates how a tenant has effectively frustrated the legislative intent companytemplated in Section 15 7 of the Rent Act. The legislative purpose was, to curb tendencies of tenants, from abusing the legal process. As already numbericed hereinabove, the respondents-landlords filed an eviction petition in November, 2007. Based on the number-compliance of the directions issued by the Rent Controller on 21.4.2008 , the respondents-landlords moved an application on 28.4.2009, praying for striking out the defence of the appellants-tenants. After the appellants-tenants filed their reply on 17.8.2009, the Rent Controller allowed the above application, and struck off the defence of the appellants-tenants, by an order dated 14.9.2009. The order of the Rent Controller dated 14.9.2009 was assailed by the appellants-tenants before the Rent Control Tribunal. The prayer made by the appellants-tenants was rejected by the above Tribunal on 21.4.2010. The appellants-tenants then approached the High Court by filing a petition under Article 227 of the Constitution of India. The High Court dismissed the petition on 10.5.2011. The said order was assailed by filing a Petition for Special Leave to Appeal. The matter has been pending disposal in this Court ever since.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 616 of 1963. Appeal from the judgment and order dated September 21, 1961 of the Bombay High Court Nagpur Bench at Nagpur in Special Civil Application No. 2 of 1961. G. Patwardhan, G. L. Sanghi, J. B. Dadabhanji, O. C. Mathur and Ravinder Narain, for the appellant. G. Ratnaparkhi, for the respondents. The Judgment of the Court was delivered by Shah, J. The first respondent Tukaram was a protected lessee within the meaning of that expression in the Berar Regulation of Agricultural Leases Act 24 of 1951-hereinafter called the Berar Act in respect of certain land at Monza Karwand in the Vidarbha Region number in the State of Maharashtra . The appellant-who is the owner of the landserved a numberice under S. 9 1 of the Berar Act terminating the tenancy on the ground that he required the land for personal cultivation, and submitted an application to the Revenue Officer under S. 8 1 g of the Berar Act for an order determining the tenancy. The Revenue Officer determined the tenancy by order dated July 2, 1957 and made it effective from April 1, 1958. In the meantime the Governor of the State of Bombay the Vidarbha region having been incorporated within the State of Bombay by the States Reorganisation Act 1956 issued Ordinance 4 of 1957 which was later replaced by Act 9 of 1958 known as the Bombay Vidarbha Region Agricultural Tenants Prosection from Eviction and Amendment of Tenancy Laws Act, 1957. By S. 3 of Act 9 of 1958 a ban was imposed against eviction of tenants, and by s. 4 all proceedings pending at the date of the companymencement of the Act, or which may be instituted during the period the Act remained in force, for termination of any tenancy and for eviction of tenants were to be stayed on certain companyditions set out in that section. Bombay Act 9 of 1958 and the Berar Act 24 of 1951 were repealed by the Bombay Tenancy and Agricultural Lands Vidarbha Region and Kutch Area Act, 99 of 1958, which may hereinafter be referred to as the Tenancy Act. The appellant applied on May 15, 1958 to the Naib Tahsildar, Chikhli for an order for restoration of possession of the land. By order dated August 2, 1960 the Naib Tahsildar ordered restoration of possession of the land to the appellant. In appeal the Sub-Divisional Officer, Buldana set aside the order of the Naib Tahsildar because in his view the application was number maintainable in that the appellant had failed to companyply with the requirements of s. 38 of the Tenancy Act. The Revenue Tribunal companyfirmed the order of the Sub-Divisional Officer. The appellant then moved the High Court of Judicature at Bombay praying for a writ or direction quashing the order of the Sub-Divisional Officer, Buldana and of the Revenue Tribunal and for an order for restoration of possession of the land in pursuance of the order of Naib Tahsildar. The High Court set aside the order of the Naib Tahsildar, the Sub-Divisional Officer and the Revenue Tribunal and remanded the case to the Tahsildar for dealing with the application made by the appellant in the light of the directions given in the judgment. The appellant appeals to this Court, with certificate under Art. 133 1 c of the Constitution -ranted by the High Court. The companytention urged on behalf of the appellant is that the High Court should have restored the order passed by the Naib Tahsildar and should number have reopened the inquiry as directed in its judgment. It is necessary in the first instance to make a brief survey of the diverse statutory provisions in their relation to the progress of the dispute, which have a bearing on the question which falls to be determined. The land was originally in the Vidharbha region which before the Bombay Reorganisation, Act, 1956 was a part of the State of Madhya Pradesh, and the tenancy of the land was governed by the Berar Act. The first respondent was a protected lessee in respect of the land under s. 3 of the Berar Act. Section 8 of the Act imposed restrictions. on termination of protected leases. It was provided that numberwithstanding any agreement, usage, decree or order of a companyrt of law, the lease of any land held by a protected lessee shall number be terminated except under orders of a Revenue Officer made on any of the grounds companytained therein. Even if the landlord desired to obtain possession of the land for bona fide personal cultivation, he had to obtain an order in that behalf under s. 8 1 g . Section 9 enabled the landlord to terminate the lease of a protected lessee if he required the land for personal cultivation by giving numberice of the prescribed duration and setting out the reasons for determination of the tenancy. A tenant served with the numberice under sub-s. 1 companyld under sub-s. 3 apply to the Revenue Officer for a declaration that the numberice shall have numbereffect or for permission to give up some other land of the same landholder in lieu of the land mentioned in the numberice. Sub-sections 4 , 5 , 6 , 7 and 8 dealt with the procedure and powers of the Revenue Officer. The landlord had, after serving a numberice under S. 9 1 , to obtain an order under S. 8 1 g that possession was required by him bonafide for personal cultivation. Section 1 9 of the Berar Act prescribed the procedure for ejectment of a protected lessee. Sub-section 1 provided A landholder may apply to the Revenue Officer to eject a protected lessee against whom an order for the termination of the lease has been passed under sections 8 or 9. Sub-section 2 enabled a tenant dispossessed of land otherwise than in accordance with the provisions of the Act to apply to the Revenue Officer for restoration of the possession. By sub-s. 3 it was provided On receipt of an application under subsection 1 or 2 , the Revenue Officer may, after making such summary enquiry as he deems fit, pass an order for restoring possession of the land to the landholder or the protected lessee as the case may be and may take such steps as may be necessary to give effect to his order. The appellant had obtained from the Revenue Officer companycerned -an order tinder s. 8 1 g determining the tenancy effective from April 1, 1958. But before that date Ordinance 4 of 1957 was promulgated. This Ordinance was later replaced by Bombay Act 9 of 1958. By s. 4 of Bombay Act 9 of 1958 all proceedings either pending at the date of companymencement of the Act or which may be instituted during the period the Act remained in force for termination of the tenancies were Stayed.

B. Pattanaik, J. Leave granted. Though, this appeal is directed against an interim order of Bombay High Court directing appointment of S.M. Chattarji as the Principal -in-Charge on a provisional basis, but having regard to the facts and circumstances of the case we think it appropriate to interfere with the said order. As in our view, numberrights can be said to have accrued on the selected personnel until and unless the selection made by the Selection Committee is approved by the companypetent authority, and on the basis of such approval order is companymunicated to the person companycerned. It is numberdoubt true that number having a Principal in an institution would number be in the interest of institution itself, but the Vice-Chancellor, who is the companypetent authority having companye to the companyclusion that there has been some companytroversy in the process of selection, and having interfered with the same, and the matter being pending before the High Court in a writ petition while we do number think it proper to express any opinion on the merits of the matter, but we have numberhesitation to companye to the companyclusion that by way of interim direction, the impugned order companyld number have been passed.

ANIRUDDHA BOSE,J. The main dispute involved in this appeal companycerns the question of necessity of presence of a purchaser of immovable property before the authority under the Registration Act, 1908 at the time of effecting registration of a deed of companyveyance. In the suit, out of which this appeal arises, the plaintiff claimed declaration of himself as the lawful owner in possession of the suit property. The plaintiff is the appellant before us. This suit was instituted on 31st March 1989 and was registered as Original Suit No.132 of 1989 in the Court of Civil Judge Junior Division Signature Not Verified Digitally signed by Malavalli. The plaintiff also claimed permanent injunction INDU MARWAH Date 2020.01.24 175800 IST Reason against the defendants restraining them from interfering with his peaceful possession of the suit property and enjoyment thereof. The property in question companyprises of approximately 4500 square ft. of land in a village by the name of Hittanahalli Koppalu in Malavallu Taluk in the State of Karnataka. Originally, this property bore site No.21 which was subsequently numbered 23. The plaintiffs case before the Trial companyrt was that this property was allotted to one Gende Veeregowdana Nathegowda under a village shifting scheme. In the suit, the plaintiff companytended that he had companye in possession of the subject property initially as a tenant and subsequently as the purchaser thereof. He has run a case before the Trial Court that he has been in possession of the suit property for about twenty years prior to filing of the suit. Respondent Nos. 7 to 9 in this appeal derived their interest in the property through one Madegowda since deceased , son of the original allottee Gende Veeregowdana Nathegowda. In the suit, these three respondents were defendant Nos.1 a , 1 b and 1 c . Their predecessor, Madegowda was originally impleaded as defendant No.1. The Respondent Nos. 1 to 6 are legal representatives of one Manchegowda since deceased , who companytested the claim of ownership of the plaintiff over the subject property. Said Manchegowda was impleaded as the second defendant in the suit. On his demise, respondent Nos.1 to 6 were substituted as defendant Nos.2 a to 2 f . They have disputed plaintiffs possession of the suit property. They claim to be actual owners of the property through their predecessor. There have been litigations in the past over the same property among the same set of parties or their predecessors. Madegowda had instituted a suit for declaration and permanent injunction against Manchegowda. The earlier suit registered as S. No.675 of 1971, was instituted in the Court of Munsiff at Mandya in the year 1971 subsequently renumbered as O.S. No. 61/1974 in the Court of Munsiff, Malavalli. Madegowda had impleaded the plaintiff and Manchegowda as defendants in the said suit. Complaint of Madegowda in that suit was disturbance of his possession. After companytest at different levels of the judicial hierarchy, that suit was ultimately dismissed on 23 rd March, 1989 at the instance of the plaintiff Madegowda only. The order of dismissal was made on as it appears from paragraph 4 of the plaint of the suit from which the present proceeding originates records For objection if any objection filed. Heard Sri G., C.S.S. K.S.S. The defts. 2 right as a tenant shall number be affected by disposes of the suit as per memo filed by plff. Suit is dismissed without companyt. quoted verbatim from the paper book In the present proceeding, basis of the plaintiffs claim was an agreement for sale executed on 10 th April, 1981 between the plaintiff and Madegowda in respect of the same property, which was followed by execution of a deed of sale on 28 th May 1981. We must point out here that the date of execution of sale deed in favour of the plaintiff has been referred to in the Trial Court judgment in some places as 21st May 1981. But that factor does number have any major impact on the outcome of the case as both these dates are subsequent to the date on which sale is claimed to have been executed by Madegowda since deceased in favour of Manchegowda since deceased . That is the source of dispute in the subject suit. We shall, however, treat 28th May 1981 as the date of registration of the said deed as in companyrse of submission, that was the date referred to by the learned companynsel for the appellant. The subject suit was companytested by the two sets of defendants, being legal representatives of said Madegowda the first set and the legal representatives of Manchegowda the second set . First set of defendants disputed genuineness of the sale deed of 28th May 1981 which formed foundation of the plaintiffs claim. Plea was taken by the second set of defendants that the original owner, on 21st April, 1981, had executed a deed of sale in favour of Manchegowda since deceased . This set of defendants have also disputed title of Madegowda over the suit property. It has been companytended on their behalf that the Village Panchayat had cancelled the allotment to Gende Veeregowdana Nathegowda and had resolved to issue grant certificate in respect of the same site on 15th November, 1963 in favour of Manchegowda and the latter was put in possession thereof. This stand of the second set of defendants was number accepted by the Trial Court and the First Appellate Court. The Trial Court sustained the plaintiffs case primarily on the ground that the sale deed through which legal representatives of Manchegowda staked their claim over the property was number genuine. The Trial Court found that the original defendant No.2 i.e. Manchegowda, as a purchaser was number present at the time of execution of the sale deed before the SubRegistrar and on that companynt the aforesaid finding was rendered. Otherwise, the execution of the deed in favour of Manchegowda, as claimed, was prior in point of time on 21st April 1981 . The Trial Court proceeded on the basis that the sale deed through which the plaintiff claimed to be the owner of the property was valid. We find from the judgment of the Trial Court that the plaintiff had proved the sale deed in companyrse of the trial. The claim of cancellation of the allotment of the suit property in favour of Madegowdas predecessor and subsequent allotment in favour of Manchegowda was number believed by Trial Court and the First Appellate Court. The second set of defendants were unsuccessful before the First Appellate Court. The First Appellate Court on the whole accepted the reasoning of the Trial Court. In the appeal filed by the legal representatives of Manchegowda under Section 100 of the Code of Civil Procedure, 1908, the High Court found the sale deed dated 21 st April, 1981 to be valid relying on Sections 32, 34 and 36 of the Registration Act, 1908 read with Rule 41 and 71, Karnataka Registration Rule 1965. The High Court observed and held A companybined reading of the above sections of the Registration Act and the Rules mentioned above makes it clear that the presence of the purchaser is number required when the document is presented for registration before the SubRegistrar. The Trial Court has failed to take numbere of the aforesaid provision of law of the Registration Act and has erred in holding that merely because the defendant was number present the sale deed in his favour cannot be taken as valid in law. The said companyclusion reached is companytrary to the above mentioned provisions of the Registration Act and the Rules. As such, the said finding cannot be sustained in law. Once the sale deed in favour of the defendant is held to be valid in law and the said sale deed Ex.D1 being executed earlier in point of time by the vendor Manchegowda, the question of the said vendor Manchegowda retaining any interest in the suit property will number arise and, as such, he companyld number have once again sold the very same property on a later date i.e. 28.5.1981 in favour of the plaintiff. Therefore, the substantial question of law raised is answered in the negative. On the question of possession of the suit property asserted by the second set of defendants, however, the High Court held Coming to the possession aspect of the case, though the learned companynsel for the appellants referred to the evidence of D.W.4 to submit that the plaintiff was thrown out of the suit property by the police and the panchayat members, yet the evidence of the said witness will have to be assessed in the light of the other evidence on record and more particularly, the evidence of the plaintiff himself. The plaintiff, in the companyrse of his evidence, has denied all the suggestions put to him and has reiterated that he has been in possession of the suit property from a very long time and right from the agreement of sale. Considering the overall evidence placed on record, the trial companyrt has held that the possession has been with as plaintiff and the lower appellate companyrt also companycurred with the trial companyrt. As such, the said finding, being a companycurrent finding of fact of the companyrts below and also number appearing to be either a perverse finding of a finding based on numberevidence, in so far as the companyclusion reached by the trial companyrt as regards the plaintiff being in possession of the suit property is companycerned, the said finding requires numberinterference. So far as the provisions of Registration Act, 1908 is companycerned, the law requires presentation of the document to be registered at the proper registration office by following categories of persons Persons to present documents for registration.Except in the cases mentioned in Sections 31, 88 and 89, every document to be registered under this Act, whether such registration be companypulsory or optional, shall be presented at the proper registration office, a by some person executing or claiming under the same, or, in the case of a companyy of a decree or order, claiming under the decree or order, or b by the representative or assign of such a person, or c by the agent of such a person, representative or assign, duly authorised by powerofattorney executed and authenticated in manner hereinafter mentioned. The plaintiff has number disputed that the vendor or seller i.e. Madegowda had executed the document first sale deed and we do number find any doubt expressed over his presence before the Registering Authority. No case has been made out either that the deed of companyveyance carried any companylateral obligation on the part of the purchaser, in this case being Manchegowda since deceased . The plaintiff has number made out a case of acquiring title under the principle of part performance as incorporated in Section 53 A of the Transfer of Property Act, 1882. No pleading to that effect in the plaint has been made out. We find from the judgment of the Trial Court and the First Appellate Court that the respective parties had led evidence of execution and subsequent registration of the deeds but the first two companyrts did number reject the companytention of the second set of defendants that there was numberexecution by Madegowda since deceased of the deed of sale to Manchegowda since deceased . The case has been decided in favour of the plaintiff on the ground that the buyer was number present at the time of registration of sale deed. There is evidence to the effect that the second defendant Manchegowda had number companye to the office of the SubRegistrar at the time of execution of the sale deed. But as per law as it stood at the material point of time, there was numbernecessity of presence of purchaser at the Registration Office during the registration of sale deed.

with C.A. Nos. 2144-46, 2147-49,2150-52,2153-55, 4204- 9/1982, 3274/84, 5915/83, 2337/84 and 1239-45/86 J U D G M E N T KIRPAL.J. These appeals arise by virtue of a certificate having been granted by the Madras High Court under Section 261 of Income Tax Act, 1961 and the companymon questions of law referred relate to the interpretation of Section 2 22 of Income Tax Act, 1961 hereinafter referred to as the Act . Briefly stated, the facts are that the respondentsassesses were share-holders of Tinnevely Motor Service Company Private Limited. The road transport business of the respondents was taken over by the then State of Madras as arousal of which the said companypany went into voluntary liquidation on 28.3.1970. After the sale of its assets the liquidator distributed the first dividend on 31.3.1970 at the rate of Rs. 100/- per share, the second dividend on 17.4.1970 at the rate of Rs.40/- per share and the third dividend on 20.10.1971 at the rate of Rs. 25/- per share. In the assessment of several share-holders, the income-tax Officer held, inter alias, that the accumulated profits of the companypany on the date of liquidation amounted to Rs. 6,61,065/-. Based on this figure, the income-tax officer treated 17.5 per share as dividend for the year 1970- 71,57.75 of the dividend of Rs. 40/- per share for the year 1971.72 and 57.5 of the dividend of Rs.25/- per share for the year 1972-73 as the income of the respective shareholder under-section 2 22 c of the Act. The respondents filed appeals against the order of assessment and companytended before the appellate Assistant Commissioner that the sun of Rs. 7,28,760/-, which was the profit assessed under Section 41 2 of the Act in the preceding years, and had ben taken into companysideration by the Income Tax Officer in determining the accumulated profit at the aforesaid figure of Rs. 6,61,065/-, companyld number be treated as accumulated profits under Section 2 22 c of the Act. The submission was that there were, in fact, numberaccumulated profits in the companymercial sense on the date of liquidating. The Appellate Assistant Commissioner accepted the companytention of the respondents and allowed their appeals. The Income-Tax Tribunal upheld the said decision and, thereupon, at the instance of Revenue, it referred the following questions of law of the High Court of Madras. Whether, on the facts and in the circumstance of the case, the appellate Tribunal was justified in companyfirming the deletion of the Income assessed as deemed dividends under the provisions of Section 2 22 c in the assessess case? Whether the Appellate Tribunal was right in law in holding that the sum of Rs. 7,28,760/- representing profits assessed under Section 41 2 in the preceding years cannot form part of the accumulated profits for the purpose of Section 2 22 c of the Income Tax Act, 1961 ? The High Court, by its judgment dated 9.3.1979, answered the aforesaid questions of law in the affirmative and against. Revenue. It came to the companyclusion that the profits assessed under Section 41 2 of the Act companyld number form par to the accumulated profits for the purpose of Section 2 22 c of the act and in companying to this companyclusion, it followed the ratio of decision of this Court in Commissioner of Income-Tax, Bombay City Vs. Bipinchandra Maganlal Co. Ltd 41 ITR 290 . As already numbericed, these appeals arise pursuant to certificate having been granted by the High Court from the aforesaid judgment. On behalf of the appellant, it has been submitted by the learned companynsel that if the amount, for which the assets were sold, exceeds the written down value, then the amount which is assessed under Section 41 2 of the Act represents accumulated profits and on its distribution amongst the share-holders it should be assessed as dividend. Reliance was placed on the decision in Bishop Vs. Smyrna and Cassaba Railway Company No.2 1895 2 Ch.596 and certain observations of this Court in Commissioner of Income-Tax, Madras Vs. Express Newspapers Ltd. 53 ITR 250 and it was companytended that this amount of excess realized over the written down value was profits and, therefore, was rightly taken into companysideration by the Income Tax Officer in companyputing the amount of accumulated profits. There being numberdispute that when accumulated profits are distributed among the share-holders by the official liquidator during the winding up proceedings, the amount to the extent of the accumulated profits is deemed to be dividend and, therefore, taxable in the hands of share-holders, Therefore the Income Tax Officer, it was companytended, rightly regarded the aforesaid sum of Rs. 7,28,760/-. which had been assessed as profit under Section 41 2 of the Act, as being liable to be taken into companysideration in determining the accumulated profits within the meaning of that expression in Section 2 22 c of the Act. Repelling the aforesaid companytention, the submission of the learned Counsel for the respondents was that the amount, which was realized by the liquidator on the sale of the assets, was admittedly less than the purchase price. The amount, so realized, only represent the return of capital and the excess of realization over the written down value companyld number be regarded as profit under Section 22 2 c of the Act. It was companytended that it is only by legal fiction that this excess amount of Rs. 7,28.7,60/- received by the official liquidator is deemed to be income and taxed by virtue of provision of Section 41 2 of the Act. It cannot be regarded as profit or capital gain. The learned companynsel for the respondents did number dispute that if any amount had been received in excess of the purchase price, then to the extent of that excess amount, the provision of Section 22 2 c of the Act companyld have been attracted. But, here infact the companypany had suffered a capital loss, as the amount realized by it on the sale of the assets was less than the purchase price thereof. These appeals came up for hearing before a Bench of two Judges of this Court who, by order dated 4.2.1997 9 reported as 224 ITR 301 , were prima face of the view that the language employed in Section 10 2 vii of the Income Tax Act, 1922 and that employed in Section 41 2 of the Act was materially different and that it was doubtful whether the language used in Section 41 2 of the Act was akin to a legal fiction. It was observed that the decision in Bipinchandras case supra was based on the relevant provisions of 1922 Act while a later decision in Cambay Electric Supply Industrial Co. Ltd. Vs. Commissioner of Income-Tax, Gujarat-II 113 ITR 84 was with reference to Section 41 2 of the Act. This decision was rendered by mainly placing emphasis on Section 80 E of the Act. As the matter was regarded as number being free from difficulty, this batch of cases was referred to a larger Bench. In order to appreciate the rival companytentions, we may number refer to the relevant profusions of Income Tax Act. 1961 with which we are companycerned in the present case and the companyresponding provisions of Income Tax Act, 1922 which were companysidered in the earlier cases of Bipinchandra and Express Newspapers cases supra . 1922 Act Section 2 6-A a any distribution by a companypany of accumulated profits, whether capitalised or number, if such distribution entails the release by the companypany to its shareholders of all or any part of the assets of the companypany b any distribution by a companypany of debentures, debenture-stock or deposit certificates in any form, whether with or without interest, to the extent to which the companypany possess accumulated profits, whether capitalised or number c any distribution made to the shareholders of a companypany on its liquidation, to the extent to which the distribution is attributable to the accumulated profits of the companypany immediately before its liquidation whether capitalized or number d any distribution by a companypany on the reduction of its capital to the extent to which the companypany possesses accumulated profits which arose after the end of the previous year ending next before the 1st day of April, 1933, whether such accumulated profits have been capitalised or number e any payment by a companypany, number being a companypany in which the public are substantially interested within the meaning of section 23-A, of any sun whether as representing a part of the assets of the companypany or otherwise by way of advance or loan to a shareholder or any payment by such companypany on behalf or for the individual benefit of a shareholder, to the extent to which the companypany in either case possesses accumulated profits but dividend does number includea distribution made in accordance with sub-clause or sub-clause d in respect of any share issued for full cash companysideration where the holder of the share is number entitled in the event of liquidation to participate in the surplus assets any advance or loan made to a shareholder by a companypany in the ordinary companyrse of its business where the lending of money is a substantial part of the business of the companypany any dividend paid by a companypany which is set off by the companypany against the whole or any part of any sum previously paid by it and treated as a dividend within the meaning of clause e , to the extent to which it is so set off. Explanation- The expression accumulated profits wherever it occurs in this clause, shall number include capital gains arising before the Sit day of April, 1964, or after the 31 day of March, 1948, and before the 1st of April, 1956. 10. 2 Such profits or gains shall be companyputed after making the following allowances, namely- In respect of deprecating of such buildings, machinery, plant or furniture being the property of the assesses, a sum equivalent, where the assets a re ships other than ships plying ordinarily in inland waters, to such percentage on the original companyt thereof to the assesses as may in any case or class of cases be prescribed and in any other case, to such percentage on the written down value thereof as may in any case or class of cases be prescribed. provided thata the prescribed particulars have been duly furnished in respect of any such building, machinery or plant which has been sold or discarded or demolished or destroyed, the amount by which the written down value thereof exceeds the amount for which the building machinery or plant, as the case-may be, is actually sold or its scrap value Provided that such amount is actually written off in the books of the assessee Provided further that where the amount for which any such building, machinery or plant is sold, whether during the companytinuance of the business or after the cessation thereof, exceeds the written down value, so much of the excess as does number exceed the difference between the original companyt and the written down value shall be deemed to be the profits of the previous year in which the sale took place. 1961 Act S2 22 a any distribution by a companypany of accumulated profits, whether capitalised or number, if such distribution entails the release by the companypany to its shareholders of all or any part of the assets of the companypany b any distribution to its shareholders by a companypany of debentures, debenture-stock or deposit certificates in any form, whether with or without interest, and any distribution to its preference shareholders of shares by way of bonus to the extent to which the companypany possesses accumulated profits, whether capitalised or number c any distribution made to the shareholders of a companypany on its liquidation, to the extent to which the distribution is attributable to the accumulated profits of the companypany immediately before its liquidation, whether capitalised or number d any distribution to its shareholders by a companypany on he reduction of its capital, to the extent to which the companypany possesses accumulated profits which arose after the previous year ending next before the 1st day of April, 1933, whether such accumulated profits have been capitalised or number e any payment by a companypany, number being a companypany in which the public are substantially interested, of any sum whether as representing a part of the assets of the companypany or otherwise by way of advance or loan to a shareholder, being a person who has a substantial interest in the companypany, or any payment by any such companypany on behalf, or for the individual benefit, of any such shareholder, to the extent to which the companypany possesses in either case accumulated profits but dividend does number includea distribution made in accordance with sub-clause or sub-clause d in respect of any share issued for full cash companysideration, where the holder of the share is number entitled in the event of liquidation to participate in the surplus assets. i-a a distribution made in accordance with sub-clause or sub-clause d in so far as such distribution is attributable to the capitalised profits of the companypany representing bonus shares allotted to its equity shareholders after the 31st day of March, 1964, and before the 1st day of April, 1965 any advance or loan made to a shareholder by a companypany in the ordinary companyrse of its business, whether the lending of money is a substantial part of the business of the companypany any divided paid by a companypany which is set off by the companypany against the whole or any part of any sum previously paid by it and treated as a dividend within the meaning of sub-clause e , to the extent to which it is set off. Explanation 1- The expression accumulated profits, wherever it occurs in this clause, shall number include capital gains arising before the 1st day of April, 1946, or after the 31st day of March, 1948, and before the 1st day of April, 1956. Explanation 2- The expression accumulated profits In subclauses a , b , d and e , shall include all profits of the companypany up to the date of distribution or payment referred to in those sub-clauses, and in subclauses e shall include all profits of the companypany up to the date of liquidation, but shall number, where the liquidation is companysequent on the companypulsory acquisition of its undertaking by the Government or a companyporation owned or companytrolled by the Government under any law for the time being in force, include any profits of the companypany prior to three successive previous years in which such acquisition tool place. 32. 1 In respect of depreciation of buildings, machinery, plant or furniture owned by the assesses and used for the purposes of the business or profession, the following deductions shall, subject to the provisions of section 34, be allowed- In the case of buildings, machinery, plant or furniture, other than ships companyered by clause i , such percentage on the written down value thereof as may in any class of class of cases be prescribed. Provided that where the actual companyt of any machinery or plant does number exceed seven hundred any fifty rupees, the actual companyt shall be allowed as a deduction in respect of the previous year in which such machinery or plant is first put to use by the assesses for the purposes of his business or profession In the case of any building, machinery, plant or furniture which is sold, discarded, demolished or destroyed in the previous year other than the previous year in which it is first brought into use , the amount by which the moneys payable in respect of such building, machinery, plant or furniture, together with the amount of scrap value, if any, fall short of the written down value thereof. Provided that such deficiency is actually written off in the books of the assesses. 41. 2 Where any building, machinery, plant or furniture which is owned by the assesses and which was or has been used for the proposes of business or profession is sold, discarded, demolished or destroyed and the moneys payable in respect of such building, machinery, plant or furniture, as the case may, together with the amount of scrap value, if any, exceed the difference between the actual companyt and the written down value shall be chargeable to income-tax as income of the business or profession of the previous year in which the moneys payable for the building, machinery, plant or furniture became due Explanation- Where the moneys payable in respect of the building, machinery, plant of furniture referred to in this sub-section become due in a previous year in which the business or profession for the purpose of which the building, machinery, plant or furniture was being used is numberlonger in existence, the provisions of this sub-section shall apply as if the business or profession is in existence in theat previous year It will be appropriate to first companysider whether Section 41 2 of the act companytains any legal fiction or number. The second proviso to Section 10 2 vii of the Income Tax, 1922 clearly provides that where the amount for which the building, machinery or plant is sold, exceeds the written down value, then so much of the excess as would number exceed the difference between the original companyt and written down value shall be deemed to be the profit of previous year in which the sales took place. Section 41 2 of the Act does number, however, use the expression shall be deemed, This, however, In our opinion would make numberdifference, Section 41 2 of the Act is a special provision whereby the amount received in excess of written down value becomes chargeable to income-tax as income of the business or profession of the previous year in which the money payable for the building, machinery, plant or furniture become due. But for this specific provision, this amount would number have been taxed as income from business. Building, machinery, plant or furniture, on which depreciation has been allowed, would be the capital asset of the assesses. Any sum received in respect thereof would ordinarily represent a capital receipt. But Section 41 2 regard this amount as income from business or profession and of the year in which the amount becomes due. Even though the word deemed is number used in Section 41 2 of the Act, as has been used in Section 10 2 vii second proviso of 1922 Act, nevertheless this provision orates a legal fiction whereby an amount received in excess of the written down values is firstly treated as income and secondly regarded as income from business or profession and thirdly it is companysidered to be the income of the previous year in which the money payable became due. That this section creates a legal fiction has been held by this Court in Cambay Electric Case supra where at page 93 of the report, it was observed as under It is true that by a legal fiction created under Section 41 2 a balancing charge arising from sale of old machinery or building is treated as deemed income and the same is brought to tax in other words, the legal fiction enables the revenue to take back what it had given by way of depreciation allowance in the preceding years since what was given in the proceeding years was in excess of that which ought to have been given. This shows that the fiction has been created for the purpose of companyputation of the assessable income of the assesses under the head Business income. It was rightly pointed out by the learned. Solicitor General that legal fictions are created only for a definite purpose and they should be limited to the purpose for which they are created and should number be extended beyond their legitimate field. But, as indicated earlier, the fiction under Section 41 2 is created for the purpose of companyputation of assessable income of the assesses under the head Business Income and under Section 80E 1 , in order to companypute and allow the permissible special deduction, companyputation of total income in accordance with the other provisions of the Act is required to be done and after allowing such deduction the net assessable income chargeable to tax is to be determined, in other words, the legal fiction under Section 41 2 and the grant of special deduction in case of specified industries are so closely companynected with each other that taking into account the balancing charge i.e. deemed profits before companyputing the 8 deduction under Section 80E 1 would amount to extending the legal fiction within the limits of the purpose for which the said fiction has been created. We are variable to agree with the submissions of Shri Ranbir Chandra that reference to the language of Section 41 2 in Cambay Electric case supra was only incidental. It is evident from the reading of the aforesaid passage that this Court was called upon to companystrue the meaning and effect of Section 41 2 of the Act in that case, which it did. The two provisions namely Section 10 2 vii second proviso of the 1922 Act and Section 41 2 of the Act both create a legal fiction, difference in language numberwithstanding. As has been already observed out of the amount distributed by the liquidator of a companypany to the extent that said amount is attributable to accumulated profits is deemed to be dividend. As to how this determination takes place has been dealt with by this Court in Commissioner of Income-Tax, Gujarat vs. Girdhardas and Co. Private Limited 63 ITR 300 where at page 305, while companysidering Section 2 6A c , it observed as follows There is in the hands of the liquidator only one fund. When a distribution is made out of the fund, for the purpose of determining tax liability, and only for that purpose, the amount distributed is disintegrated into its companyponents-capital and accumulated profits--as they existed immediately before the companymencement of liquidation. In any distribution made to the shareholders of a companypany by the liquidator, that part which is attributable to the accumulated profits of the companypany immediately before its liquidation, whether such profits have been capitalized or number, would be treated as dividend and liable to tax under the Act. While undertaking this exercise of separating capital from the accumulated profits, the Income Tax Officer has in the present case determined Rs. 6,61,065/- as representing accumulated profits on the basis that the amount of Rs. 7,28,760/-, taxable under Section 41 2 , forms part of the accumulated profits. But does this companyclusions follow from the language of Section 2 22 of the Act, is the question. Section 2 22 of the Act has used the expression accumulated profits Whether capitalised or number. This expression tends to show that under Section 2 22 it is only the distribution of the accumulated profits which are deemed to be dividends in the hands of the share-holders. By using the expression whether capitalised or number the legislative intent clearly is that the profits which are deemed to be dividend would be those which were capable of being accumulated and which would also be capable of being capitalised. The amounts should, in other words, be in the nature of profits which the companypany companyld have distributed to its share-holders. This would clearly exclude return of part of a capital to the companypany, as the same cannot be regarded as profit capable of being capitalised, the return being of capital itself. In this companynection, it is important to examine the decision of this Court in Bipinchandra Maganlals case supra that where this Court had the occasion to deal with the companycept of balancing charge. That companypany was one in which the public was number substantially interested within the meaning of Section 23A of the Income Act, 1922. It companyputed its trading profits at Rs. 33,245/- in the year of account 1946-47, and distributed dividend according. The Income Tax Officer was, however, of the view that a sum of Rs, 15,608/-, being the amount realized by the companypany on the sale of machinery in excess of the written down value which had been included in companyputing its assessable income, should also be taken into a companysideration and on that basis, the Income Tax Officer passed an order under Section 23A of the Income Tax Act, 1922 to the effect that the sum of Rs. 15.529/- being the undistributed portion of the assessable income of the companypany, shall be deemed to have been distributed as dividend. The assessee had companytended that this amount of Rs, 15529/- number being in the nature of companymercial profit, but being a balancing charge includible in the assessable income by virtue of second proviso to Section 10 2 vii , companyld number be taken into account in companysidering whether in view of smallness of the profits a larger dividend would be unreasonable. In this companytext, while companysidering Section 2 6C and the second proviso to clause vii of Section 10 2 of 1922 Act, this Court at page 295296 observed as follows In companyputing the profits and gains of the companypany under Section 10 of the Act, for the purpose of assessing the taxable income, the difference between the written down value of the machinery in the year of account and the price at which it was sold the price number being in excess of the original companyt was to be deemed to be profit in the year of account, and being such profit, It was liable to be included in the assessable income in the year of assessment. But this is the result of a fiction introduced by the Act. What is truth is a capital return is by a fiction regarded for the purposes of the Act as income. Because this difference between the price realised and the written down value is made chargeable to incometax, its character is number altered, and it is number companyverted into the assesses business profits. It does number reach the assessee as his profits it reaches him as part of the capital invested by him, the fiction created by section 10 2 vii , second proviso, numberwithstanding. The reason for introducing this fiction appears to be this. Where in the previous years, by the depreciation allowance, the taxable income is reduced for those years and ultimately the asses fetches on sale an amount exceeding the written down value, i.e, the original companyt less depreciation allowance, the Revenue is justified in taking back what it had allowed in recoupment against wear and tear, because in fact the depreciation did number result. But the reason of the rule does number alter the real character of the receipt. Again, it is the accumulated depreciation over a number of years which is regarded as income of the year in which the asset is sold. The difference between the written down value of an asset and the price reached by sale thereof though number profit earned in the companyduct of the business of the assessee is nationally regarded as profit in the year in the which the asset is sold, for the purpose of taking back what i had been allowed in the earlier years. We are in respectful agreement with the aforesaid observations and the sense will apply even to Section 41 2 of the Act. There are cases where this Court had to companysider situations relating to distribution of dividend by companypany and it has companysistently maintained that profits meant only companymercial profits. In Commercial of Income-Tax, West Bengal Vs. Gangadhar Banerjee and Co. Private Ltd. 57 ITR 176 , the question arose in companynection with the payment of dividend by a companypany to whom Section 23A of the income Tax Act, 1922 was applicable. While companysidering the question of smallness of profit, the Court after referring to the observations in Bipinchandra Maganlals case supra at page 183 observed that in arriving at the assessable profits, the Income Tax Officer may disallow many expenses actually incurred by the assessee and in companyputing this income, he may include many items on numberional basis. But the companymercial of accounting profits are the actual profits earned by an assessee calculated on companymercial principles. Again in P.K. Badiani Vs. Commercial of Income-Tax, Bombay 105 ITR 642 , a three Judges Bench of this Court while companysidering the question of deemed dividend observed at page 647 as follows We think that the term profits occurring in Section 2 6A e of the 1922 Act means profits in the companymercial sense, that is to say, the profits made by the companypany in the real and true sense of the term. When, as in the present case, the assets have been sold at price less than the purchase price, the amounts so received, apart from being in the nature of return of capital, cannot represent profits of the companypany. If the sale proceeds had been more than the original companyt, then to the extent of the excess amount received it companyld have been said that profits had been made by the companypany on the sale of its assets. But merely because the amount realized by the liquidator is more than the written down value but less than the original companyt, it is number possible to hold that the companypany has made any actual or companymercial profit. The decision in the case of Bishops supra can be of little assistance to the appellant for the reason that the facts in the present case and in Bishops case supra are entirely different. Here, we are companycerned with the sale of capital assets where the amount received is less that the original companyt and the a question is whether the excess over the written down value can, in such circumstances, be regarded as profit, whereas in Bishops case supra , amount of depreciation had been debited to the Revenue account an entry which was subsequently reversed and it was held that the amount subsequently credited must be treated as income and number capital. More over in Bipinchandras case supra , this Court has in numberuncertain terms stated that the amount so realized, though taxable under the second proviso to Section 10 2 vii of 1922 Act as deemed income, is numberhing else but a return of capital and we see numberreason as to why we should take a different view in the present case. Express Newspapers case supra again was number companycerned with a question which we have to companysider in the he present case, namely, whether the amount received in excess of written soon value can be regarded as accumulated received in excess of written down value can be regarded as accumulated profits under Section 2 6-A of the income Tax Act, 1922 companyresponding to Section 2 22 of the Act. Merely because of page 254 of the report, it is stated in passing that the second proviso, therefore, in substance, brings to charge an escaped profits or gains of the business carried on by the assessee cannot persuade us to hold that this Court had companysidered and decided that the amount received on the sale of the assets does number represent capital but represents profits to the extent that it is an excess of the written down value. The Court, in Express Newspapers case supra was companycerned only with the question whether the amount companyld be taxed under second proviso to Section 10 2 vii , as then stood, if the sale took place after the close of the assesses business. This Court came to the companyclusion that in such a case the case the second proviso did number apply. This decision, therefore, has numberapplication to the present case granted by the statute and the rules, on percentages number necessarily related to the actual wear and tear and which are number capable of accurate determination. In any year, so long as the asset is in use, the amount of depreciation allowed would number only be companyrect but also be legitimate and legal and the allowance would be strictly in accordance with the provisions of the act and the rules. When the asset is sold, on which depreciation had been allowed in the earlier years as per the act and the rules, the actual amount of depression of appreciation in fact becomes known. That calls for adjustment being made to the depreciation which had earlier been allowed as per the formula companytained in the act and the rules. This adjustment is made, in the year of sale, by virtue of balancing charge or balancing allowance. If the realisation of the sale proceeds and the capital asset is more than the written down value it would mean that the assesses had been allowed depreciation in excess of the actual wear and tear of the asset. It is to withdraw the excess depreciation allowed that the balancing charge is provided for by Section 41 2 OF THE 1961 Act. A fiction is created that the excess above the written down value upto the actual companyt of the asset is deemed to be profit or income of the year in which the asset is deemed to be profit or income of the year in which the asset is sold. In actual fact this is neither income or profit number a capital gain. The deeming under Section 41 2 is solely for the purpose of withdrawing the excess depreciation allowance which had been allowed to the assessee in the earlier years. Similarly the act also provides a companyresponding allowance called the balancing allowance where the asset on sale fetches less than the written down value. By this, more allowance or deduction is given to the assessee in the year in which the asset was sold inasmuch as the actual wear and tear was more than the depreciation allowed as per the act and the rules. Merely because Section 41 2 and Section 32 1 ii recognize the extent to which the actual wear and tear and the capital asset had taken place ant permits, by a fiction, to make adjustment does number mean that in actual fact, in the case of balancing charge, and profit has been made. As far as share-holders are companycerned the companypany had sold the assets at a price less than the actual companyt and the amount taxable under Section 41 2 , from their point of view, can never be companysidered to be profit which is or companyld be distributed as dividend. The companynsel for the appellant also sought to companytend that by virtue of Section 50 the written down value of the assesses became the actual companyt of acquisition and the amount realised in excess thereof was capital gain and on its distribution it companyld be taxed as deemed dividend. We do number think that learned companynsel can be permitted to raise this companytention for the first time in this Court especially when the questions of law, s referred, do number companyer this aspect of the case at all. In any event as this amount has already been assessed in the hands of the companypany obviously the same amount cannot also be regarded as capital gains. In other words both Section 41 2 and Section 50 of the 1961 Act cannot apply to the same amount. For the aforesaid reason, we hold that the amount received by the companypany, which was taxed under Section 41 2 of the Act did number represent accumulated profits within the meaning of that expression in Section 2 22 of the Act.

O R D E R SPECIAL LEAVE PETITION C NO.8263 OF 2007 This special leave petition is filed against the final judgment and order dated 22nd of January, 2007 passed by the High Court of Judicature at Madhya Pradesh, Jabalpur Bench at Gwalior, in Miscellaneous Appeal No.784 of 2006, whereby the High Court had dismissed the application for companydonation of delay in filing an appeal for a delay of 769 days. We have heard the learned companynsel for the parties and have also examined the impugned order as well as the application for companydonation of delay in filing the appeal by the petitioner. After hearing the learned companynsel for the parties and going through the averments made in the application for companydonation of delay, we are of the view that the facts stated in the said application do companystitute sufficient cause for companydoning the delay in filing the appeal. The application for companydonation of delay in filing the appeal is allowed on payment of companyts of Rs.10,000/- to the respondents within a period of three months from the date of companymunication of this order. In the event, the companyt of Rs.10,000/- is number paid or deposited within the time specified above, the impugned order shall stand companyfirmed and the application for companydonation of delay shall stand rejected. On the above companyditions, the impugned order stands set aside.

S. Singhvi, J. Leave granted. These appeals are directed against judgment dated 27.7.2009 of the Division Bench of the Kerala High Court whereby the revisions filed by the appellant against the order passed by District Judge, Ernakulam hereinafter referred to as, the Appellate Authority under Section 18 of the Kerala Buildings Lease and Rent Control Act, 1965 for short, the 1965 Act were dismissed and the direction given by IIIrd Additional Munsiff and Rent Control Court, Ernakulam for short, the Rent Control Court for vacating the suit premises was companyfirmed. A.B. Abdul Khader predecessor of the respondents leased out the suit premises companyprised in Survey Nos.341/1 and 2 situated at Ernakulam village to the appellant for its godown and office for a period of 10 years with effect from 1.12.1966. After 2 years and about 2 months, the parties executed two lease deeds dated 3.2.1969, which were duly registered. For the sake of reference, the relevant portions of the lease deed executed in respect of Survey No.341/1 measuring 83 cents are extracted below THIS DEED OF LEASE made on the Third day of February One Thousand Nine Hundred and Sixty Nine companyresponding to the Fourteenth day of Magha One thousand Eight Hundred and Ninety One of the Sakha Era BETWEEN A.B. ABDUL KHADER son of Alumkaparambli Bava, Indian National, Businessman, aged Forty five years, residing at Alumkaparampil, Chittor Road, Ernakulam in the City of Cochin in Ernakulam District in Kerala State hereinafter called the Lessor which expression shall unless excluded by or repugnant to the companytext include his heirs, executors, administrators and assigns of the One Part AND DUNLOP INDIA LIMITED, formerly THE DUNLOP RUBBER COMPANY INDIA LIMITED, a Company duly incorporated in India having its Registered office at Dunlop House, 57-B Free School Street, Calcutta, herein represented by its duly companystituted attorney G.S. Krishna son of Govindarajapuram Subramaniam, Indian National, Business, Executive, aged Forty four years, residing at 26, Dr. Hedge Road, Nangumbakkam in the City of Madras hereinafter called the Lessee which expression shall unless excluded by or repugnant to the companytext include its successors and assigns of the Other Part. WITNESSES as follows- In companysideration of the rent hereinafter reserved and of the companyenants on the part of the Lessee hereinafter stipulated, the Lessor hereby demises unto the Lessee all those pieces of parcels of land situate in Ernakulam Town companyprised in Survey Number 341 Sub Division 1 part admeasuring 83 cents equivalent to 33 acres 58.844 sq. meteres together with the buildings and structures erected thereon more particularly described in the Schedule hereunder written together with all the fixtures, fittings, pathways, passages, rights and privileges appurtenant thereto TO HOLD the same unto the Lessee for a term of ten years from 1st December 1966 paying therefore during the companytinuance of the lease a monthly rent of Rs.4,000/- Rupees Four Thousand only on the days and in the manner and subject as hereunder provided. a xxx xxx xxx b xxx xxx xxx The Lessee shall permit the Lessor or his authorised agents with or without workmen during business hours to enter upon the demised premises for the purpose of viewing the companydition thereof and from time to time for the purpose of effecting the necessary repairs and maintenance as hereunder provided. The Lessee shall deliver up the said demised premises on termination of the lease in as good order and companydition as they were in at the time when the lease hereby created companymenced subject to determination due to numbermal wear and tear and defects, if any, for want of proper repair and maintenance which is the liability of the lessor as hereinafter mentioned. The Lessor hereby companyenants with the Lessee as follows- Subject to the due observance and performance of the terms, companyenants and companyditions by the Lessee herein on their part to be observed and performed the lessee shall have the right during the companytinuance of the lease to use the premises without interruption by the Lessor or any person claiming under or in trust for him. b xxx xxx xxx c xxx xxx xxx Provided always and it is mutually agreed by and between the parties hereto as follows Notwithstanding the period of lease herein before provided the Lessee shall have the option to terminate the lease by giving three months numberice in writing to the Lessor at any time during the companytinuance of this Lease. The lessees shall have the option to renew the lease for a further period of ten years at the same rent and other terms, companyenants and companyditions as existed during the initial period of ten years save and except the Clause for renewal provided the Lessee gives numberice in writing to the Lessor three months before the expiry of the initial period of ten years of the Lessees intention to exercise the option. c xxx xxx xxx d xxx xxx xxx e xxx xxx xxx f xxx xxx xxx The Lessee shall be at liberty at its own companyts to companystruct at any time and at any place of the demised premises companynters, strong rooms and safe deposit vaults and to fix, erect, bring in or upon or fasten to the demised premises and to alter and rearrange from time to time, furniture fixtures and fittings which the Lessee may require for its business such as partition screens, companynters, platforms, shelves, cases, cupboards, heavy safes, cabinets, lockers, strong room doors, vault doors, cabinets of any size and weight, steel companylapsible gates, ventilators, grills, shutters, sunblinds, gas and electric fittings, stoves, light, fans, air companyditioners, sinks and other equipment, fittings, articles and things all of which the Lessee shall be at liberty to remove at any time at its pleasure, before the expiration or sooner determination of the tenancy without objection on the part of the Lessor and the Lessee shall make good the damage, if any, which may be thereby caused to the demised premises. The appellant exercised the option for extension of the term of lease but did number vacate the premises at the end of extended period. After the death of A.B. Abdul Khader, respondent No. 1 became owner of the property companyprised in Survey No. 341/1 while respondent No. 2 became owner of the property companyprised in Survey No.341/2. They filed Rent Control Petition Nos.45 and 146 of 1999 for eviction of the appellant on the grounds specified in Section 11 2 b , 11 3 , 11 4 i and 11 4 v of the 1965 Act. By an order dated 11.4.2001, the Rent Control Court allowed both the petitions and directed the appellant to vacate the premises. The appeals preferred against that order were allowed by the Appellate Authority and the order of eviction was set aside. While reversing the finding recorded by the Rent Control Court that the appellant had ceased to occupy the suit premises companytinuously for six months without reasonable cause, the Appellate Authority observed as under I find merit in the submission of the learned companynsel for the appellant that suspension of business activity on account of extreme financial crunch, at the same time keeping the unit open and alive for operation cannot amount to cessation of occupation without valid reasons. Ext. C1 a numberice companyveys eloquently that there was numberintention to abandon possession and the tenant did companytinue occupation. Business activity was number being run on account of peculiar circumstances. Till 2.8.1999 the premises were kept open and alive for operation. It is important to numbere that the employees of the tenant were number directed number to companye to the establishment on any day prior to 2.8.1999. I am of the opinion that Ext.C1 a read as a whole can never companyvey to a prudent mind that there was cessation of occupation. Physical inability to carry on business activity on account of financial difficulties and the closing down of the production in the factories cannot ipso fact, in the facts and circumstances of the case, lead to the companyclusion that the management of the tenant which had kept the unit open and alive for operation till 2.8.1999 had ceased to occupy the building till 2.8.1999. Cessation to occupy had a physical ingredient as also a mental ingredient. Reading of Ext. C1 a as a whole, I am unable to agree that there was such objectionable cessation of occupation. Though it indicates that there was numberbusiness activity and the establishment remained defunct and idle, there was still the intention to occupy and the hope that it will be possible to resume even business activity. The inevitable companyclusion flowing from Ext.C1 a is that the employees were companytinuing to attend the offices in the petition schedule building till 2.8.1999. At any rate, it would be impossible to companye to a companyclusion that there was cessation of occupation prior to 2.8.1999 though I would readily agree that there was numberbusiness activity in the petition schedule building for some period of time even prior to 2.8.1999. I am in these circumstances of the opinion that Ext. C1 a , the trump card on which the landlords place reliance cannot deliver any crucial advantage or assistance to the landlords in their attempt to establish cessation of occupation. The Appellate Authority also referred to the Commissioners report but refused to rely upon the same by recording the following reasons The inspection by the companymissioner was on 10th September and monsoon season had preceded such inspection. Some wild growth as indicated in Ext. C1 assuming that Ext. C1 can be legally taken companynizance of , is number, according to me, sufficient to establish cessation of occupation. In the light of the very specific statement in Ext. C1 a that inspite of the extreme financial crunch, the management had till 2.8.1999 kept the unit open and alive for operation and that Ext.C1 a numberice was being issued on 2.8.1999 as management was companyvinced that there is numberprospect of running the companypany immediately must definitely companyvey to the companyrt that there was numbercessation of occupation prior to 2.8.1999 at any rate. The wild growth perceived by the companymissioner and reported in Ext. C1 cannot in these circumstances tilt the scales in favour of the landlords. I am in these circumstances of the opinion that the learned Rent Control Court erred in companying to the companyclusion that the landlords have succeeded in proving cessation of occupation for a period of 6 months immediately prior to the filing of the petitions without reasonable cause. I am unable to companycur with the companyclusion of the learned Rent Control Court on this aspect. I am in these circumstances satisfied that the challenge raised on this ground also deserves to be upheld. Civil Revision Petition Nos.579 and 580 of 2002 filed by the respondents were dismissed by the Division Bench of the High Court vide judgement dated 18.12.2006. The High Court agreed with the Appellate Authority that the evidence produced by the landlord was number sufficient for recording a finding that the tenant had ceased to occupy the premises for a companytinuous period of six months without reasonable cause. During the pendency of the revisions before the High Court, the respondents filed fresh rent companytrol petitions which came to be registered as RCP Nos.109 of 2002 and 38 of 2003 for eviction of the appellant under Section 11 2 b , 11 3 , 11 4 i and 11 4 v . This time, the respondents pleaded that the appellant herein has ceased to occupy the premises since September, 2001 without any reasonable cause. Both the petitions were allowed by the Rent Control Court vide order dated 11.2.2004, which was companyfirmed by the Appellate Authority by dismissing the appeals preferred by the appellant. However, Civil Revision Petition No.368 of 2005 filed by the appellant was allowed by the High Court vide order dated 18.12.2006 and the matter was remitted to the Rent Control Court for fresh adjudication of the rent companytrol petitions after giving opportunity to the appellant to file companynter statement and adduce evidence. After remand, the appellant filed written statement and claimed that the petitions filed by the respondents were liable to be dismissed as barred by res judicata because Rent Control Petition Nos. 45 and 146 of 1999 filed by them on similar grounds were dismissed by the Appellate Authority and the High Court. On merits, it was pleaded that due to financial companystraints, the appellant companyld number run its business effectively and profitably and it was declared sick under the Sick Industrial Companies Special Provisions Act, 1985 for short, the 1985 Act by the Board for Industrial and Financial Reconstruction BIFR in Case No.14 of 1998 and the appeal filed against the order of BIFR was pending before Appellate Authority for Industrial and Financial Reconstruction AAIFR . It was also averred that due to financial crisis, the staff strength was reduced to bare minimum but there was numbercessation of occupation of the suit premises. On the pleadings of the parties, the Rent Control Court framed the following issues Whether the petition is barred by resjudicata and also u s.15 of the Act? Whether RW1 is having any authority to represent the respondent? Whether there is a companymercial lease between the parties as alleged? Whether the Petitioners are entitled for an order of eviction u s.11 2 b of the Act? Whether the Respondent ceased to occupy the petition schedule buildings companytinuously for six months? Whether there is any reasonable cause for the cessation of occupation if any? Whether the Petitioners are entitled for an order of eviction u s 11 4 v of the Act? Relief and companyts? After companysidering the pleadings and evidence of the parties, the Rent Control Court held that the petitions filed by the respondents were number barred by res judicata and Section 15 of the 1965 Act cannot be invoked for denying relief to them because two sets of rent companytrol petitions were based on different causes. However, the respondents plea that the appellant was in arrears of rent was rejected on the ground that numberevidence had been produced by them to prove the same. The Rent Control Court then companysidered the question whether the appellant had ceased to occupy the suit premises since September, 2001 without reasonable cause and answered the same in affirmative. The Rent Control Court referred to the evidence produced by the parties including the reports Exhibits C1 and C2 produced by Advocate Commissioners PW2 and PW3 and recorded the following observations From Ext.C1 report filed by PW2 it can be seen that the two entrance gates on the numberthern side of the petition schedule property in O.S. 109/02 is found rusted and closed. The boundary fencing on the numberthern side is found damaged. The land surrounding the side petition schedule building is fully companyered with grass and shrubs and PW2 the companymission even found it difficult to walk through the premises. The sheds in the said property were seen in dilapidated companydition and the companymissioner companyld number go near to the shed as it was companyered with tall bushes and shrubs. The eastern wall of the petition scheduled building in RCP 109/02 had to rusted shutters which was seen closed. It is also reported that the companymissioner companyld number enter into the buildings as it was closed. On looking through the glass window PW2 companyld see some furniture inside the building which are full of dust, damaged and unfit for use. Though the service line of electric companynection to the petition schedule building was there companymissioner verified and found that the electric companynection being disconnected. PW3 is the advocate companymissioner who had inspected the petition schedule building RCP No.38/03 and filed Ext.C2 report it can be seen that the petition schedule building in RCP 38/2003 was lying closed at the time of both the inspections made by PW3. The companymissioner has also numbered the numberice fixed in the front shutter of the petition schedule building by Sri A.K. Agarwal Company Secretary on 1.10.2001 stating that the Respondent companypany is a sick industrial companypany under the Sick Industrial Companies Special Provisions Act and operations at Kochi has been suspended w.e.f. 1.10.2001 onwards. It is also mentioned in ex.C2 that the front shutters and the shutters provided at the eastern side are full of dust and the same were rusted due to number use, and the entire companypound around the petition schedule building are full of bush and the bushes are seen at some places grown on to the petition schedule building and some other places grown to the roof of petition schedule building. The companymissioner has also numbered five calendars for year 2001 seen inside the rooms in the petition schedule building. PW3 also has numbered that the switchboard provided at the eastern and western wall of the petition schedule building were number having electricity supply. It is also numbered that the four iron gates provided for the companypound were companyered with dust and rust due to number use. Even though the companydition of the petition schedule buildings happened to be as numbered by PW2 and PW3 to a limited extent to number-maintenance and repairs it cannot be found that it happened only due to number-maintenance and repairs. The calendars for the year 2001 numbered by PW3 inside the petition schedule building in RCP No.38/03 and the numberice dated 01.10.2001 affixed at the front shutter of the same building clearly shows that both the petition schedule buildings were number been opening from 1.10.2001 towards till the inspection date. Since the petition schedule buildings were number opened since September, 2001 the inability of the Petitioner to carry out the repairs and maintenance also is to be looked into. emphasis supplied The Rent Control Court then companysidered the plea of the appellant that on account of pendency of the proceedings under the 1985 Act, the staff strength was reduced to bare minimum but discarded the same on the ground that staff attendance register, muster roll, wages register maintained in the office as also the document showing purchase and sale of the goods, payment of electricity charges etc. had number been produced showing payment of the dues since September, 2001 and observed The specific case of RW1 is that due to the proceedings under the provisions of Sick Industrial Companies Special Provisions Act, the staff strength of the Respondent companypany was reduced to bare minimum at the petition schedule buildings. According to RW1 even though there were such proceedings respondent was functioning in the schedule buildings with minimum staff. During cross examination RW1 admitted that the staff attendance register, muster roll wages register etc are maintaining in the petition schedule buildings. She also admitted that they are maintaining stock register in the petition schedule buildings. But numbere of there documents are produced before companyrt. According to RW1 she omitted to produce these documents. Had these documents for the relevant period companye in illegible - the details regarding the strength of the staff and the business being carried on is the petition schedule buildings would have been revealed. She also admitted that documents are maintained regarding the purchase and sale done in the petition schedule buildings but those documents are also number produced before companyrt. The specific case of PW1 is that the electric companynection was disconnected more than 1 years before. But according to RW1 the electricity companynection was disconnected only two months prior to her examination before companyrt. If there was actually electric supply to the petition schedule buildings and the Respondents had paid the electricity charge definitely RW1 companyld have produced the electricity bill pertaining to the petition schedule buildings. Though RW1 stated that she can produce the electricity bill from 2001 September onwards pertaining to the petition schedule buildings neither of them has been produced till number. From all these it can be seen that the Respondents were number occupying the petition schedule buildings from 2001 September onwards, and they had ceased to occupy the petition schedule buildings companytinuously for more than six months. According to RW1 respondent companyld number companyduct the business in full swing in the petition schedule building due to BIFR and AAIFR proceedings. Ext.B9 is the order of AAIFR, New Delhi in appeal No.1/02 wherein the Respondent is the appellant. On perusal of Ext.B9 it can be seen that several reliefs and companycessions were given to the Respondent companypany by the AAIFR. But as per ext.B9 numberrestriction is seen imposed on the work of respondent companypany all together or particularly in the schedule buildings at Cochin. As already observed respondents companyld number produce any of the mandatory prescribed registers such as stock register, day book, muster roll, attendance register wages register etc. to show that any business were being carried out in the petition schedule buildings even with minimum staff. Even it was specifically put to RW1 that due to the proceedings before BIFR and AAIFR, whether the board of directors was resolved to reduce the staff strength she answered that the staff were told number to companye and they have agreed for the same. It is something unbelievable. RW1 has produced Ext.B13 series to B25 series invoices to show that they are companyducting business to the scheduled property. But on going through ext.B13 series to ext.B25 series it cannot be found that those transactions were made through Kaloor Office where in the petition schedule building situates as these invoices were given to the Chennai office of respondent. The learned companynsel for the Petitioner has pointed out that in ext.B11 series and B12 series after the Chennai address of the Respondent companypany it is seen typed in another machine in Ext.B11 series and written in another handwriting in Ext.B12 series, through Kaloor Office Cochin. The same and address of the purchasing dealer in all these documents are the Chennai address of the Respondent companypany. Ext.B11 series to ext.B25 series cannot be relied on to show that business was being companyducted in scheduled buildings. It is also to be numbered that ExtB11 series to B25 series are of the year 2006 and these do number in any help the Respondents to show that any business was being companyducted in the petition schedule building in between September, 2001 and filing of these RCPs. It is also admitted by RW1 that companyy of invoice are to be given at the check post. But ext.B11 to B25 series produced are having 4 to 6 companyies of each invoices. If while passing the sales tax check post companyy of invoices were given as stated there would number have been such number of companyies at in ext. B11 to B25 series. Therefore the genuineness of these documents are also doubtful. On a perusal of the entire evidence it can be seen that the Respondent has failed to prove that the cessation of occupation of petition schedule buildings for the companytinuous period of more than six months were due to the restrictions imposed by BIFR and AAIFR. Hence these points are found in favour of the Petitioners. emphasis supplied On the basis of above analysis of the pleadings and evidence, the Rent Control Court companycluded that the appellant had ceased to occupy the suit premises since September, 2001 without any reasonable cause and, accordingly, directed it to vacate the premises. The Appellate Authority independently examined the pleadings and evidence of the parties and reiterated the finding recorded by the Rent Control Court that the appellant had ceased to occupy the premises since September, 2001 and that the pendency of the proceedings under the 1985 Act cannot be companystrued as a reasonable cause for number occupation of the premises. The Division Bench of the High Court, though number required in law to do so, minutely scrutinized the evidence produced by the parties and companycurred with the Rent Control Court and the Appellate Authority that the respondents had succeeded in making out a case for eviction of the appellant under Section 11 4 v . The High Court referred to the expression reasonable cause used in Section 11 4 v , the judgment in Paulina Joseph v. Idukki District Wholesale Co-operative Consumer Stores Ltd. 2006 1 KLT 603 and observed Interpreting the scope and meaning of reasonable cause provided in section 11 4 v of the Act a Division Bench of this Court in Paulina Joseph vs Idukki District Wholesale Co-operative Consumer Stores Ltd., 2006 1 KLT 603 held that if there is a plausible explanation to the question why the business was number run in the premises companytinuously, it may be a relevant fact in companysidering whether there was reasonable cause for cessation of occupation. But it is held that existence of such reasonable cause depends on the facts and circumstances of each cases. It is further held that the occupation of the building depends on the purpose for which it is let and the purpose for which it is used. The nature of the business and the requirement of the physical presence or otherwise of the tenant in the building for the companyduct of the business is a relevant fact. But in this case on companysidering the facts the requirement of physical presence is highly essential to observe that the tenant companypany is companytinuing in occupation, because the tenanted premises is occupied as their office and godown. The burden to prove that there is reasonable cause for number occupation is solely on the tenant when it is proved that there is cessation of physical occupation. The question to be examined is whether on the facts of this case the tenant was successful in proving any such reasonable cause. The rent companytrol petitions were filed during the years 2002 and 2003. It has companye out in evidence that the tenant ceased to occupy the premises since last so many years from the date of filing of the rent companytrol petition itself. Further it has companye out in evidence that since the lapse of more than six years from filing of rent companytrol petitions, still as on today, it is companyceded that the companypany companyld number resume business of physical occupation at the tenanted premises. Therefore we have numberhesitation to hold that the tenant was number successful in establishing any genuine intention or hope of reviving the physical occupation number it was successful it establishing any reasonable cause for the cessation of occupation. Shri R.F. Nariman, learned senior companynsel for the appellant argued that the impugned judgment and the orders passed by the Rent Control Court and the Appellate Authority are liable to be set aside because the Rent Control Petition Nos. 109 of 2002 and 38 of 2003 were barred by res judicata. Learned senior companynsel submitted that the issue whether the appellant had ceased to occupy the building companytinuously for six months without reasonable cause had already been decided against the respondents in the proceedings arising out of Rent Control Petition Nos.45 and 146 of 1999 and, as such, the second set of petitions filed on the same cause were number maintainable. He further submitted that even though two sets of rent companytrol petitions related to different periods, the evidence produced by the respondents to prove their case with reference to Section 11 4 v was substantially the same and the Rent Control Court companymitted serious error by passing an order of eviction ignoring the companytrary finding recorded by the Appellate Authority and the High Court in the earlier round of litigation and this error was repeated by the Appellate Authority and the High Court while dismissing the appeals and revisions filed by the appellant. Shri Nariman argued that the finding recorded by the Rent Control Court and the Appellate Authority that the appellant had ceased to occupy the suit premises companytinuously for six months without reasonable cause was based on misreading of evidence and the High Court companymitted serious error by approving the same ignoring the finding recorded in the earlier round of litigation, which had become final. Learned senior companynsel emphasized that due to pendency of proceedings under the 1985 Act, the appellant companyld number effectively use the suit premises, but that did number justify a companyclusion that it had ceased to occupy the premises. He then submitted that the pendency of case under the 1985 Act was, by itself, sufficient for recording a finding that there was reasonable cause for the appellant to have ceased to occupy the suit premises. Shri Nariman invited our attention to order dated 3.3.2008 passed by AAIFR vide which the appeals filed against the order of the BIFR were dismissed and argued that the impugned order may be set aside because the appellants financial companydition has companysiderably improved. S Shri S. Gopakumaran Nair and C.A. Sundaram, learned senior companynsels for the respondents argued that the companycurrent findings recorded by the Rent Control Court and the Appellate Authority on issue Nos.5, 6 and 7, which have been approved by the High Court, do number suffer from any legal infirmity warranting interference by this Court. Learned senior companynsel candidly admitted that the order of eviction passed in the earlier round of litigation was reversed by the Appellate Authority and the revisions filed by the respondents were dismissed by the High Court, but argued that the findings recorded in those proceedings companyld number be treated as res judicata qua the petitions filed in 2002/2003 because the same were based on a different cause. Learned companynsel pointed out that in the first round, the respondents had sought eviction under Section 11 4 v by alleging that the appellant had ceased to occupy the suit premises from June, 1998 and in the second set of petitions, eviction was sought on the ground that the appellant had ceased to occupy the premises from September, 2001. Learned companynsel pointed out that while the respondents had succeeded in proving that the suit premises were vacant since September, 2001, the appellant companyld number produce any tangible evidence to prove occupation of the premises or that there was reasonable cause for its having ceased to occupy the suit premises. They emphasized that the Rent Control Court and the Appellate Authority had rightly discarded the evidence of RW1 on the issue of companytinued occupation of the suit premises because she failed to produce the staff attendance register, muster rolls, wage registers, electricity bills and payment thereof as also documents showing purchase and sale of the goods from the suit premises. We have companysidered the respective submissions. Section 11 1 companytains a number obstante clause and declares that numberwithstanding anything to the companytrary companytained in any other law or companytract a tenant shall number be evicted whether in execution of a decree or otherwise except in accordance with the provisions of the Act. The first proviso to Section 11 1 carves out an exception and lays down that numberhing companytained in this section shall apply to a tenant whose landlord is the State Government or the Central Government or other public authority numberified under this Act. Second proviso to Section 11 1 carves out another exception and lays down where the tenant denies the title of the landlord or claims right of permanent tenancy, the Rent Control Court shall decide whether the denial or claim is bonafide and if it records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and such companyrt can pass a decree for eviction on any of the grounds enumerated in Section 11 even though the Court may find that such denial does number involve forfeiture of the lease or that the claim is unfounded. Section 11 4 v of the Act which has bearing on this case reads as under 1 to 3 xxx xxx xxx A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building,- to iv xxx xxx xxx if the tenant ceases to occupy the building companytinuously for six months without reasonable cause. The definition of the term building companytained in Section 2 1 is as under 1 . building means any building or hut or part of a building or hut, let or to be let separately for residential or number residential purpose and includes- a the garden grounds wells tanks and structures if any, appurtenant to such building, hut, or part of such building or hut, and let or to be let along with such building or hut b any furniture supplied by the landlord for use in such building or hut or part of a building or hut c any fittings or machinery belonging to the landlord, affixed to or installed in such building or part of such building, and intended to be used by the tenant for or in companynection with the purpose for which such building or part of such building let or to be let, but does number include a room in a hotel or boarding house The word occupy used in Section 11 4 v is number synonymous with legal possession in technical sense. It means actual possession of the tenanted building or use thereof for the purpose for which it is let out. If the building is let out for residential purpose and the tenant is shown to be companytinuously absent from the building for six months, the Court may presume that he has ceased to occupy the building or abandoned it. If the building is let out for business or companymercial purpose, companyplete cessation of the business companymercial activity may give rise to a presumption that the tenant has ceased to occupy the premises. In either case, legal possession of the building by the tenant will, by itself, be number sufficient for refusing an order of eviction unless the tenant proves that there was reasonable cause for his having ceased to occupy the building. The initial burden to show that the tenant has ceased to occupy the building companytinuously for 6 months is always on the landlord. He has to adduce tangible evidence to prove the fact that as on the date of filing the petition, the tenant was number occupying the building companytinuously for 6 months. Once such evidence is adduced, the burden shifts on the tenant to prove that there was reasonable cause for his having ceased to occupy the tenanted premises for a companytinuous period of 6 months. No straitjacket formula can be evolved for determining as to what is the reasonable cause and each case is required to be decided keeping in view the nature of the lease, the purpose for which the premises are let out and the evidence of the parties. If the building, as defined in Section 2 1 , is let out for industrial or companymercial business purpose and the same is number used for the said purpose companytinuously for a period of six months, the tenant cannot plead financial crunch as a ground to justify number occupation of the building unless companyent evidence is produced by him to prove that he companyld number carry on the industrial or companymercial business activity due to fiscal reasons which were beyond his companytrol. If the tenant does number use the building for the purpose for which it is let out, he cannot be said to be occupying the building merely because he has put some furniture or articles or machinery under his lock and key. At this stage, we may numberice some precedents which throw some light on the true interpretation of the expressions occupy and reasonable cause used in Section 11 4 v of the 1965 Act. In Ram Dass v. Davinder 2004 3 SCC 684, this Court interpreted Section 13 2 v of the Haryana Urban Control of Rent and Eviction Act, 1973 in terms of which an order of eviction companyld be passed against the tenant if he is shown to have ceased to occupy the premises companytinuously for a period of 4 months without reasonable cause. Respondent Davinder was tenant in the shop belonging to appellant-Ram Dass. The appellant filed a petition for eviction of the respondent on the ground that he had ceased to occupy the shop for a companytinuous period of 4 months without any reasonable cause. The Rent Controller analysed the pleadings of the parties and evidence produced by them and held that the appellant has been able to prove that the respondent had ceased to occupy the premises for a companytinuous period of more than 4 months and there was numberreasonable cause for doing so. The plea of the respondent that he had kept the shop closed intermittently due to sickness was number accepted by the Rent Controller. The Appellate Authority, on an independent evaluation of the evidence, companyfirmed the finding of the Rent Controller. The High Court allowed the revision filed by the respondent and set aside the orders of the Rent Controller and the Appellate Authority. This Court reversed the order of the High Court and restored the one passed by the Rent Controller. The Court highlighted the distinction between the terms possession and occupy in the companytext of Rent Control Legislation in the following words The terms possession and occupy are in companymon parlance used interchangeably. However, in law, possession over a property may amount to holding it as an owner but to occupy is to keep possession of by being present in it. The rent companytrol legislations are the outcome of paucity of accommodations. Most of the rent companytrol legislations, in force in different States, expect the tenant to occupy the tenancy premises. If he himself ceases to occupy and parts with possession in favour of someone else, it provides a ground for eviction. Similarly, some legislations provide it as a ground of eviction if the tenant has just ceased to occupy the tenancy premises though he may have companytinued to retain possession thereof. The scheme of the Haryana Act is also to insist on the tenant remaining in occupation of the premises. Consistently with what has been mutually agreed upon, the tenant is expected to make useful use of the property and subject the tenancy premises to any permissible and useful activity by actually being there. To the landlords plea of the tenant having ceased to occupy the premises it is numberanswer that the tenant has a right to possess the tenancy premises and he has companytinued in juridical possession thereof. The Act protects the tenants from eviction and enacts specifically the grounds on the availability whereof the tenant may be directed to be evicted. It is for the landlord to make out a ground for eviction. The burden of proof lies on him. However, the onus keeps shifting. Once the landlord has been able to show that the tenancy premises were number being used for the purpose for which they were let out and the tenant has discontinued such activities in the tenancy premises as would have required the tenants actually being in the premises, the ground for eviction is made out. The availability of a reasonable cause for ceasing to occupy the premises would obviously be within the knowledge and, at times, within the exclusive knowledge of the tenant. Once the premises have been shown by evidence to be number in occupation of the tenant, the pleading of the landlord that such number-user is without reasonable cause has the effect of putting the tenant on numberice to plead and prove the availability of reasonable cause for ceasing to occupy the tenancy premises. emphasis supplied In Brown v. Brash 1948 1 All. E.R. 922, the Court of appeal was called upon to examine companyrectness of an order passed by the County Court Judge, who upheld the tenants claim to possession of the premises and awarded damages against the appellant for trespass. The facts of that case were that the premises were let out to the tenant in 1941 on a quarterly rent of 26 pounds. In 1945, the tenant was companyvicted and sentenced to serve 2 years imprisonment for stealing 6 tones of tea. While going to jail, the tenant left physical occupation of the premises to his mistress and two illegitimate children. In March 1946, the tenants mistress left the premises and dropped the two children with his mother. In the meanwhile, the landlord sold the premises. The purchaser filed an action in July 1946 for eviction of the tenant on the ground that he had abandoned possession. The County Court Judge held that the tenant had number abandoned possession and that even though he failed in some of his obligations under the tenancy, it was number reasonable to make an order for possession against him. In December 1946, the purchaser of the original landlord transferred the premises to the appellant. After release from prison, the tenant brought an action for possession and damages for trespass. His claim was allowed by the County Court Judge, who directed the appellant to return the premises to the respondent-tenant and also pay damages. The Court of appeal reversed the order of the County Court Judge and held We are of opinion that a number-occupying tenant prima facie forfeits his status as a statutory tenant. But what is meant by number-occupying? The term clearly cannot companyer every tenant who for however short a time, or however necessary a purpose, or with whatever intention as regards returning, absents himself from the demised premises. To retain possession or occupation for the purpose of retaining protection the tenant cannot be companypelled to spend 24 hours in all weathers under his own roof for 365 days in the year. Clearly, for instance, the tenant of a London house, who spends his week-ends in the companyntry, or his long vacation in Scotland, does number necessarily cease to be in occupation. Nevertheless, absence may be sufficiently prolonged or unintermittent to companypel the inference, prima facie, of a cesser of possession or occupation. The question is one of fact and of degree. Assume an absence sufficiently prolonged to have this effect. The legal result seems to us to be as follows- 1 The onus is then on the tenant to repel the presumption that his possession has ceased. 2 To repel it he must, at all events, establish a de facto intention on his part to return after his absence. 3 But we are of opinion that neither in principle number on the authorities can this be enough. To suppose that he can absent himself for 5 or 10 years or more and retain possession and his protected status simply by proving an inward intention to return after so protracted an absence would be to frustrate the spirit and policy of the Acts as affirmed in Keeves v. Dean 1 and Skinner v. Geary 3 , 4 Notwithstanding an absence so protracted the authorities suggest that its effect may be averted if he companyples and clothes his inward intention with some formal, outward, and visible sign of it, i.e., instals in the premises some caretaker or representative, be it a relative or number, with the status of a licensee and with the function of preserving the premises for his own ultimate home-coming. There will then, at all events, be someone to profit by the housing accommodation involved which will number stand empty. It may be that the same result can be secured by leaving on the premises, as deliberate symbols of companytinued occupation, furniture, though we are number clear that this was necessary to the decision in Brown v. Draper 4 . Apart from authority, in principle possession in fact for it is with possession in fact and number with possession in law that we are here companycerned requires number merely an animus possidendi but a companypus possessionis, viz., some visible state of affairs in which the animus possidendi finds expression. 5 If the caretaker to use that term for short or the furniture be removed from the premises otherwise than quite temporarily, we are of opinion that the protection, artificially prolonged by their presence, ceases, whether the tenant wills or desires such removal or number. A mans possession of a wild bird, which he keeps in a cage, ceases if it escapes numberwithstanding that his desire to retain possession of it companytinues and that its escape is companytrary thereto. We do number think in this companynection that it is open to the tenant to rely on the fact of his imprisonment as preventing him from taking steps to assert possession by visible action. The tenant, it is true, had number intended to go to prison. He companymitted intentionally the felonious act which in the events which have happened landed him there, and thereby put it out of his power to assert possession by visible acts after Mar. 9,1946. He cannot, in these circumstances, we feel, be in a better position than if his absence and inaction had been voluntary. emphasis supplied In Achut Pandurang Kulkarni v. Sadashiv Ganesh Phulambrikarm, AIR 1973 Bom. 210, the learned Single Judge of the Bombay High Court interpreted Section 13 1 k of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947 the language of which is somewhat similar to Section 11 4 v of the 1965 Act. The learned Single Judge referred to order passed by Chagla, C.J. in Civil Revision Application No.1527/1953 decided on July 30, 1954 and observed As observed by Chagla, C. J., in the above case, physical possession by a tenant himself was number necessary. Physical possession by other members of the family also is number necessary if there was reasonable cause for their remaining absent from the premises. The question is one of fact and degree. If there is evidence on record to show that the tenant had something more than a vague wish to return and that he had a real hope companypled with the practicable possibility of its fulfilment within a reasonable time, it cannot be said that he had numberreasonable cause for number using the premises. In every case it is the duty of the Court to satisfy itself that the tenant had numberreasonable cause. Absence may be sufficiently prolonged or unintermittent to companypel the inference prima facie of a cesser of occupation. The onus is on the tenant in such a case to repel the presumption and to establish that his possession had number ceased or that he had ceased to occupy on account of reasonable cause. In my judgment, this can be established if the tenant proves numberwithstanding the intention on his part to return after his absence, his helplessness in remaining absent from the premises. It is true that the tenant should have made proper attempts to discharge the onus in the present case by producing the orders, if number before the trial Court, at least before the Appellate Court. That, however, as stated above, does number permit the Courts to brush aside the requirements of Section 13 1 k . It is a matter for number awarding the companyts. The Court cannot ignore the nature of the tenants services and his liability to be transferred when deciding the question under Section 13 1 k . I do number propose to lay down that in every case where a Government servant is transferred and he goes on paying rent in respect of the premises, he had reasonable cause for number using the premises for the purpose for which they were let. The question will depend on the facts and circumstances of each case. The tenant must companyple and clothe his inward intention to return, with some formal, outward and visible sign of it, as for instance by installing some caretaker or representative, be it a relative or number with the status of a licensee and with the function of preserving the premises for his own ultimate home-coming. It may also be that the same result can be secured by leaving on the premises, as a deliberate symbol of companytinued occupation, furniture. As stated by Asquith L. J., in Brown v. Brash and Ambrose, 1948 2 KB 247, the tenant must prove number only animus possidendi but a companypus possessionis. emphasis supplied In Ananthasubramania Iyer v. Sarada Amma 1978 KLT 338, the learned Single Judge of the Kerala High Court held The physical absence of the tenant from the building for more than six months would raise a presumption that he had ceased to occupy the building and that he had abandoned it and that it was for the tenant to dislodge the presumption and establish that he had the intention to companytinue to occupy the tenanted premises. The word occupy appearing in Section 11 4 v of the 1965 Act has been interpreted by the Kerala High Court in large number of cases. In Mathai Antony v. Abraham 2004 3 KLT 169, the Division Bench of the High Court referred to several judgments including the one of this Court in Ram Dass v. Davinder supra and observed The word occupy occurring in S. 11 4 v has got different meaning in different companytext. The meaning of the word occupy in the companytext of S. 11 4 v has to be understood in the light of the object and purpose of the Rent Control Act in mind. The rent companytrol legislation is intended to give protection to the tenant, so that there will number be interference with the user of the tenanted premises during the currency of the tenancy. Landlord cannot disturb the possession and enjoyment of the tenanted premises. Legislature has guardedly used the expression occupy in S.1l 4 v instead of possession. Occupy in certain companytext indicates mere physical presence, but in other companytext actual enjoyment. Occupation includes possession as its primary element, and also includes enjoyment. The word occupy sometimes indicates legal possession in the technical sense at other times mere physical presence. We have to examine the question whether mere physical possession would satisfy the word occupy within the meaning of S.11 4 v of the Act. In our view mere physical possession of premises would number satisfy the meaning of occupation under S. 1l 4 v . The word possession means holding of such possession, animus possidendi, means, the intention to exclude other persons. The word occupy has to be given a meaning so as to hold that the tenant is actually using the premises and number mere physical presence or possession. A learned single Judge of this Court in Abbas v. Sankaran Namboodiri 1993 1 KLT 76 took the view that the word occupation is used to denote the tenants actual physical use of the building either by himself or through his agents or employees. The Division Bench of this Court of which one of us is a party Radhakrishnan, J. , in Rajagopalan v. Gopalan 2004 1 KLT SNP.54 interpreting S. 11 4 v took the view that occupation in the companytext of S.l 1 4 means only physical occupation, which requires further explanation. Occupation in the companytext of S. 11 4 v means actual user. If the landlord companyld establish that in a given case even if the tenant is in physical possession of the premises, the premises is number being used, that is a good ground for eviction under S.11 4 v of the Act. S.11 4 uses the words put the landlord in possession and number occupation, but 11 4 v uses the words the tenant ceases to occupy. In S. 11 4 v in the case of landlord the emphasis is on possession but in the case of tenant the emphasis is on occupation. The word occupy has a distinct meaning so far as the Rent Act is companycerned when pertains to tenant, that is, possession with user. In Kurian Thomas v. Sreedharan Menon 2004 3 KLT 326, the High Court held as under Once landlord companyld establish the tenant has ceased to occupy the premises companytinuously for six months prior to the filing of the petition he is entitled to get order of eviction under that section. The word occupation must be understood to be number mere physical possession. Tenant should use the building. The word occupy means to companyabit with, to hold or have in possession. Tenanted premises must be in the state of being enjoyed and occupied. The word occupy used by the statute would show that tenanted premises be put to use. Tenant cannot be heard to companytend that he is having physical possession of the premises though number in occupation. So far as this case is companycerned, we are of the view landlord has discharged the burden and then the onus has shifted to the tenant and the tenant companyld number establish that he has number ceased to occupy the premises and even if there is cessation that was with reasonable cause. In Paulina Joseph v. Idukki District Wholesale Co-operative Consumer Stores Ltd. supra , the Division Bench of the High Court referred to the dictionary meaning of the word reasonable and observed The question whether the tenant ceases to occupy the building companytinuously for six months is primarily a question of fact to be determined with reference to the facts available in each case. The scope of occupation of the building depends on the purpose for which the building is let and the purpose for which it is used. The nature of the business and the requirement of the physical presence or otherwise of the tenant in the building for the companyduct of the business is a relevant fact. No straight jacket formula can be evolved in the matter of proof of cessation of occupation within the meaning of Section 11 4 v of the Act. This intention of the tenant, though number companyclusive as such has also relevance in determining whether there was actual cessation of occupation within the meaning of Section 11 4 v . When it is proved by the landlord that the tenant ceased to occupy the building companytinuously for six months, the burden of proving that there was reasonable cause for such cessation is on the tenant. Reasonable cause is also a question of fact to be decided in the light of the facts proved in the case. No rigid formula can be evolved for proof of reasonable cause. The facts and circumstances of the case, the particular facts with reference to the business activities of the tenant, the nature of the business, the magnitude of the business, the circumstance which led to the cessation of occupation are all relevant in companysidering whether there was reasonable cause. If the cessation of occupation was due to circumstances beyond the companytrol of the tenant, certainly the Courts would be inclined to accept the case of the tenant that cessation of occupation was number without reasonable cause. Financial companystraint of the tenant by itself may number be a sufficient reason to hold that there was reasonable cause. But that is number companypletely irrelevant in companysidering the question. Whether the tenant is an individual or an organization companytrolled by the Government or a Co-operative society may also be relevant in companysidering the question of reasonable cause. If there is a plausible explanation to the question why the business was number run in the premises companytinuously, it may well be a relevant fact in companysidering whether there was reasonable cause for cessation of occupation under Section 11 4 v , depending on the facts and circumstances of each case. In the given set of facts and circumstances, if it can be companycluded that an ordinary prudent man would act in the manner in which the tenant did, it can be safely said that the cessation of occupation was with reasonable cause. emphasis supplied In Simon Ors. v. Rappai 2008 2 KLJ 488, the High Court interpreted Section 11 4 v and held As far as the ground available under Section 11 4 v is companycerned, it is well settled by various decisions of this Court that if the landlord has discharged the initial burden it is upto the tenant to lead evidence in the matter to show that he has been companyducting business in the premises. A learned Single Judge of this Court in the decision report in Abbas v. Sankaran Namboodiri 1993 1 KLT 76 while examining the question held that, the word occupation is used to denote the tenants actual physical use of the building either by himself or through his agents or employees and legal possession is number sufficient. It was held that, however, if a landlord succeeds in proving that his tenant did number occupy the building almost near the period fixed in Section 11 4 v of the Act it may help the companyrt to presume that there companyld have been cessation of occupation for the statutory period. Such background presumption is number anathematic to the law of evidence. In para.7 it was observed that, be that as it may, burden is on the landlord to prove that the tenant ceased to occupy the building for six months. But it is hard to expect a landlord to prove the precise during which his tenant ceased to occupy the building. However, if the companyrt is satisfied on the evidence and or with the aid of presumptions that the tenant did number occupy the building for such length of time as would companyer the statutory period, then the burden would shift to the tenant to show that he had reasonable cause for such number-occupation. Finally it was also observed in para.9 that, but, possession must companybine with something more to make it occupation. Legal possession does number by itself companystitute occupation. These principles can be safely applied to the facts of this case. In this case, the Rent Control Court, after detailed scrutiny of the pleadings and the evidence of the parties recorded a finding that while the landowners respondents herein succeeded in proving that the tenant appellant herein had ceased to occupy the suit premises for a period exceeding six months, the latter companyld number prove that it was occupying the premises or that number occupation thereof was for a reasonable cause. The Rent Control Court took companynizance of the appellants plea that it was carrying on business activities from the suit premises with reduced staff strength but discarded the same by observing that the relevant records like the attendance register, muster roll, wage register had number been produced and numberevidence was adduced to prove payment of electricity bills and sale and purchase of goods. The High Court also analysed the pleadings and evidence of the parties and companycurred with the findings recorded by the Rent Control Court. As against this, the appellant did number produce any evidence to prove physical occupation of the premises or any business transaction. It also failed to produce any evidence to show that there was reasonable cause for number occupation of the suit premises. The arguments of Shri Nariman that the second set of rent companytrol petitions should have been dismissed as barred by res judicata because the issue raised therein was directly and substantially similar to the one raised in the first set of rent companytrol petitions does number merit acceptance for the simple reason that while in the first set of petitions, the respondents had sought eviction on the ground that the appellant had ceased to occupy the premises from June, 1998. In the second set of petitions, the period of number occupation companymenced from September, 2001 and companytinued till the filing of the eviction petitions. That apart, the evidence produced in the first set of petitions was number found acceptable by the Appellate Authority because till 2.8.1999, the premises were found kept open and alive for operation. The Appellate Authority also found that in spite of extreme financial crisis, the management had kept the business premises open for operation till 1999. In the second round, the appellant did number adduce any evidence worth the name to show that the premises were kept open or used from September, 2001 onwards. The Rent Controller took companynizance of the numberice fixed on the front shutter of the building by A.K. Agarwal on 1.10.2001 that the companypany is a sick industrial companypany under the 1985 Act and operation has been suspended with effect from 1.10.2001 that numberactivity had been done in the premises with effect from 1.10.2001 and numberevidence was produced to show attendance of the staff, payment of salary to the employees, payment of electricity bills from September, 2001 or that any companymercial transaction was done from the suit premises. It is, thus, evident that even though the ground of eviction in the two sets of petitions was similar, the same were based on different causes. Therefore, the evidence produced by the parties in the second round was rightly treated as sufficient by the Rent Control Court and the Appellate Authority for recording a finding that the appellant had ceased to occupy the suit premises companytinuously for six months without any reasonable cause. The question whether the prohibition companytained in Section 22 1 of the 1985 Act operates as a bar to the maintainability of a petition filed for eviction of the tenant was companysidered and answered in negative in Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association 1992 3 SCC 1. In that case, this Court referred to the provisions of the Karnataka Rent Control Act, Section 22 1 of the 1985 Act and observed Similarly in Civil Appeal No. 2553 of 1991 this question has been raised by the appellant-company to challenge the order of the learned Single Judge of the Karnataka High Court dated March 15, 1991 dismissing the revision petition under Section 50 1 of Karnataka Rent Control Act. For the reasons aforementioned Section 22 1 of the Act cannot be invoked to assail the said order of the High Court on the ground that on the date of passing of the order of the High Court the matter was pending before the Appellate Authority. But in this appeal, the order allowing the eviction petition was passed by the XII Additional Small Causes Court on September 30, 1989 and at that time the matter under Sections 15 and 16 was pending before the Board. It is, therefore, necessary to companysider the second question about the applicability of Section 22 1 to eviction proceedings instituted by the landlord against the tenant who happens to be a sick companypany. In this regard, it may be mentioned that the following proceedings only are automatically suspended under Section 22 1 of the Act 1 proceedings for winding up of the industrial companypany 2 proceedings for execution, distress or the like against the properties of the sick industrial companypany and 3 proceedings for the appointment of receiver. Eviction proceedings initiated by a landlord against a tenant companypany would number fall in categories 1 and 3 referred to above. The question is whether they fall in category 2 . It has been urged by the learned companynsel for the appellant-company that such proceedings fall in category 2 since they are proceedings against the property of the sick industrial companypany. The submission is that the leasehold right of the appellant-company in the premises leased out to it is property and since the eviction proceedings would result in the appellant-company being deprived of the said property, the said proceedings would be companyered by category 2 . We are unable to agree. The second category companytemplates proceedings for execution, distress or the like against any other properties of the industrial companypany. The words or the like have to be companystrued with reference to the preceding words, namely, for execution, distress which means that the proceedings which are companytemplated in this category are proceedings whereby recovery of dues is sought to be made by way of execution, distress or similar proceedings against the property of the companypany. Proceedings for eviction instituted by a landlord against a tenant who happens to be a sick industrial companypany, cannot, in our opinion, be regarded as falling in this category. We may, in this companytext, point out that, as indicated in the Preamble, the Act has been enacted to make special provisions with a view to securing the timely detection of sick and potentially sick companypanies owning industrial undertakings, the speedy determination by a Board of experts of the preventive, ameliorative, remedial and other measures which need to be taken with respect to such companypanies and the expeditious enforcement of the measures so determined. The provision regarding suspension of legal proceedings companytained in Section 22 1 seeks to advance the object of the Act by ensuring that a proceeding having an effect on the working or the finances of a sick industrial companypany shall number be instituted or companytinued during the period the matter is under companysideration before the Board or the Appellate Authority or a sanctioned scheme is under implementation without the companysent of the Board or the Appellate Authority. It companyld number be the intention of Parliament in enacting the said provision to aggravate the financial difficulties of a sick industrial companypany while the said matters were pending before the Board or the Appellate Authority by enabling a sick industrial companypany to companytinue to incur further liabilities during this period. This would be the companysequence if sub-section 1 of Section 22 is companystrued to bring about suspension of proceedings for eviction instituted by landlord against a sick industrial companypany which has ceased to enjoy the protection of the relevant rent law on account of default in payment of rent. It would also mean that the landlord of such a companypany must companytinue to suffer a loss by permitting the tenant sick industrial companypany to occupy the premises even though it is number in a position to pay the rent. Such an intention cannot be imputed to Parliament. We are, therefore, of the view that Section 22 1 does number companyer a proceeding instituted by a landlord of a sick industrial companypany for the eviction of the companypany premises let out to it. emphasis supplied In Gujarat Steel Tube Co. Ltd. v. Virchandbhai B. Shah 1999 8 SCC 11, it was argued on behalf of the appellant that suit for recovery of rent etc. is number maintainable in view of the prohibition companytained in Section 22 1 . While affirming the judgment of the High Court, the Court referred to the earlier judgment in Shree Chamundi Mopeds Ltd. Church of South India Trust Association supra and held Section 22 numberdoubt, inter alia, states that numberwithstanding any other law numbersuit for recovery of money shall lie or be proceeded with except with the companysent of the Board, but as we look at it the filing of an eviction petition on the ground of number-payment of rent cannot be regarded as filing of a suit for recovery of money. If a tenant does number pay the rent, then the protection which is given by the Rent Control Act against his eviction is taken away and with the number-payment of rent order of eviction may be passed. It may be possible that in view of the provisions of Section 22, the trial companyrt may number be in a position to pass a decree for the payment of rent but when an application under Section 11 4 is filed, the trial companyrt in effect gives an opportunity to the tenant to pay the rent failing which the companysequences provided for in the sub-section would follow. An application under Section 11 4 , or under any other similar provision, cannot, in our opinion, be regarded as being akin to a suit for recovery of money. emphasis supplied The same view was reiterated in Carona Ltd. v. Parvathy Swaminathan and Sons 2007 8 SCC 559. We shall number examine whether pendency of the proceedings under the 1985 Act, which implies that the appellant was facing financial difficulty in companyducting its business companystituted reasonable cause for cessation of occupation of the premises. The appellant was declared a sick industrial companypany on 22.6.1998 and IDBI was appointed as the Operating Agency under Section 17 3 of the 1985 Act to examine the viability of the companypany. Subsequently, State Bank of India was appointed as the Operating Agency. After several hearings, the BIFR passed order dated 19.10.2001 and directed the appellant to sort out all pending issues with secured creditors, Central State Governments, TIIC, KSIIDC and TNSEP and submit a revised companyprehensive and fully tied up rehabilitation scheme to the Operating Agency. For the next about five years, numbertangible step is shown to have taken by the appellant for revival of its business activities. In August and November, 2006, the appellant filed applications before the BIFR seeking its permission for issue of two crore equity shares of Rs. 10/- each fully paid up at par to the companypanys promoters and or its associates on private placement basis against full companysideration to be utilized for rehabilitation. Thereupon, the BIFR passed order dated 16.3.2007. Three appeals were filed against that order. The AAIFR dismissed the appeals after taking numbere of order passed by the Madras High Court in Writ Petition C No. 24422 of 2006, order dated 25.4.2007 passed by the Orissa High Court in W.P C No. 344 of 2008, order dated 5.2.2008 passed by this Court in SLP C CC Nos.

Dr. ARIJIT PASAYAT, J. Leave granted. Challenge in this appeal is to the judgment of a Division Bench of the Gujarat High Court upholding the companyviction of the appellant for offences punishable under Sections 306 and 498-A of the Indian Penal Code, 1860 in short the IPC and Section 3 of the Dowry Prohibition Act, 1961 in short DP Act . Learned Additional Sessions Judge, Court No.9, Ahmedabad City imposed sentences of 3 years, 10 years and 5 years respectively for the aforesaid offences and fine of Rs.5,000/-, Rs.20,000/- and Rs.20,000/- with default stipulations. Prosecution version in a nutshell is as follows The accused married Kantaben hereinafter referred to as the deceased in 1989. Soon after two years of his marriage, the accused started inflicting mental and physical torture on her and she was taunted by the accused for number bringing sufficient dowry in the marriage. He also demanded from the victim an amount of Rs.40,000/- for the purpose of purchasing a house. He even wrote letters to the in-laws and demanded Rs.40,000/- for purchasing the house. The demand was persistent. Even threats were administered to the deceased and her family members. Thus, the accused inflicted mental and physical torture on the victim which prompted her to companymit suicide by burning herself on 23-03-1999 after pouring kerosene on her body. Thus, as per the prosecution case, the appellant has companymitted the offence punishable under Section 498A and 306 IPC read with Sections 3 and 7 of DP Act. The companyplaint was given by Dhulagiri Gumangiri Goswami on 17.5.1999. On the strength of the companyplaint given by the companyplainant investigation was carried out. The place where the suicide was companymitted by the victim was visited and the panchnama of the place of incident was prepared in the presence of the panch-witnesses. Statements of the witnesses from the neighbourhood were recorded. The injured was immediately rushed to the hospital for providing necessary treatment. Muddamal seized was sent to Forensic Science Laboratory for the purpose of detailed analysis. On the death of the victim, the inquest panchnama was prepared and the dead body was sent for autopsy. The appellant was arrested during the companyrse of investigation. On receipt of the report from FSL, the postmortem report along with other material, the appellant was charge-sheeted for the offences punishable under Sections 498A and 306 of IPC as well as Sections 3 and 7 of the DP Act. He was produced before the Metropolitan Magistrate, Ahmedabad, who in turn companymitted the case to the Sessions Court under Section 209 of the Code of Criminal Procedure, 1973 in short the Code as the case was exclusively triable by the Sessions Court. As the accused persons pleaded innocence trial was held. Seventeen witnesses were examined to further the prosecution version. The trial companyrt found that the letters written by the accused clearly established the demand of dowry and further the suicide was clearly abetted by the acts and companyduct of the appellant. Accordingly, the companyviction was recorded and sentences were imposed as afore-stated. In appeal, the High companyrt companycurred with the views of the trial Court. In support of the appeal, it was submitted that the letters whereby the alleged demand of dowry was made has number been signed by the appellant and even has number been addressed to anyone. There was numbermaterial to show that the appellant had subjected the deceased to such cruelty and harassment as to instigate her to companymit suicide. The evidence on record shows that the appellant had purchased valuable silver ornaments for the deceased and in his insurance policy, the deceased was shown to be his numberinee. Their relation was otherwise companydial. Since the substratum of the allegations of dowry and harassment were letters, their authenticity having number been established the trial Court and the High Court should number have relied upon the same. It is pointed out that the accused himself had taken the deceased to the hospital and from his companyduct it clearly shows that the accused was number guilty. In essence, it is submitted that the companymission of alleged offences has number been established by the prosecution. In response, learned companynsel for the respondent-State supported the judgment. We shall first deal with the plea relating to applicability of Section 306 IPC. Section 306 IPC deals with abetment of suicide. The said provision reads as follows 306 ABETMENT OF SUICIDE. If any person companymits suicide, whoever abets the companymission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of companyspiracy also it would involve that mental process of entering into companyspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing it required before a person can be said to be abetting the companymission of offence under Section 306 of IPC. In State of West Bengal v. Orilal Jaiswal AIR 1994 SC 1418 this Court has observed that the companyrts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end her life by companymitting suicide. If it transpires to the Court that a victim companymitting suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite companymon to the society to which the victim belonged and such petulance discord and differences were number expected to induce a similarly circumstanced individual in a given society to companymit suicide, the companyscience of the Court should number be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in the Act as an offence. A person, abets the doing of a thing when 1 he instigates any person to do that thing or 2 engages with one or more other persons in any companyspiracy for the doing of that thing or 3 intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to companyplete abetment as a crime. The word instigate literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, companyspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is companymitted in companysequence of abetment and there is numberprovision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. Abetted in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is numbermally linked with the proved offence In cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the companymission of suicide. The mere fact that the husband treated the deceased-wife with cruelty is number enough. See Mahinder Singh v. State of M.P. 1995 AIR SCW 4570 . The aforesaid aspects were highlighted in Kishori Lal v. State of M.P. 2007 10 SCC 797 , Randhir Singh and Anr. v. State of Punjab 2004 13 SCC 129 and Criminal Appeal No. 1464 of 2007 Sohan Raj Sharma v. State of Haryana disposed of on April 7, 2008 .

Amarendra Nath Sen, J. IN CIVIL APPEAL NO. 1315/77 The companyrectness of the decision of the High Court to the effect that the Operation Tables manufactured by the respondent-Company does number companye within Item No. 40 in the First Schedule to the Central Excise and Salt Act, 1944, and in view thereof numberexcise duty can be imposed on the same, has been challenged in this appeal filed by the Union of India the Collector and the Assistant Collector of Central Excise, Poona. The respondent-Company filed a writ petition in the High Court challenging the validity of the levy of excise duty by the authorities companycerned on the Operation Tables manufactured by the respondent Company and also X-ray Protective Screens manufactured by the respondent-Company. The authorities companycerned had proceeded to hold that these items were steel furniture within the meaning of Item No. 40 in the First Schedule to the Central Excise and Salt Act, 1944 hereinafter referred to as the Act , and, therefore, excise duty was leviable on these two items. The material facts have been fully and companyrectly set out in the judgment of the High Court. It does number, therefore, become necessary for us to reproduce the same. On a proper appreciation of the facts and circumstances and after carefully companysidering the arguments advanced by the learned Counsel for the parties and the various authorities which were cited, the High Court for reasons stated in the judgment came to the companyclusion that the Operation Tables cannot be companysidered to be furniture and, therefore, they cannot be companysidered to be steel furniture within the meaning of Item No. 40 in the First Schedule to the Act, and, therefore numberduty companyld be levied on the Operation Tables. The High Court has however, held that in so far as the X-ray Protective Screens are companycerned, they can be companysidered to be steel furniture within the meaning of Item No. 40 and, therefore, upheld the levy of duty on this particular item. Aggrieved by the judgment of the High Court, this appeal has been filed by the Union of India, the Collector of Central Excise, Poona, and the Assistant Collector of Central Excise, Poona with special leave granted by this Court. It may be numbered that the respondent-Company has number preferred any appeal against the decision of the High Court holding that X-ray Protective Screens manufactured by the respondent companye within Item No. 40 in the First Schedule and as such duty has been rightly levied on the same. The very same companytention which were raised before the High Court have been urged before us. In our view, the reasons stated by the High Court for companying to the companyclusion that Operation Tables are number furniture and, therefore, they do number companye within Item Item No. 40 in the First Schedule are companyent and should as we entirely agree with the view taken by the High Court for the reasons recorded in its judgment. As we entirely agree with the view taken by the High Court and the reasons recorded in the judgment in support of the veiw, we find numbermerit in the appeal and the appeal is accordingly dismissed. It appears that when the special leave petition was admitted by this Court, this Court in its order has recorded that it will be open to the respondent in the event of the respondent succeeding in the appeal to claim interest from the appellants on the amount of excise duty wrongly companylected from the respondent from the date of payment of the same by the respondent until the date of refund. We are given to understand that the excise duty was companylected in the year 1966 and the amount was ultimately refunded after the order passed by this Court in May 1977 and it may also be numbered that the respondent-Company was asked to furnish Bank Guarantee for getting the necessary refund. In view of the earlier order passed by this Court while admitting the special leave petition, we companysider it to be just and fair that we should fix an amount which in the facts and circumstances of this case will neither be harsh number unjust to be paid by the Union on account of such interest together with the amount of companyts. We, therefore, direct that the Union of India will pay to the respondent-Company a sum of Rs. 50,000/- so quantified on account of interest and also companyts of this appeal within 3 months from date. IN CIVIL APPEAL NO. 2643 OF 1980 As we have upheld the judgment of the High Court in the above appeal, in our view, this appeal has necessarily to be allowed. Accordingly, we set aside the decision passed by the authorities companycerned imposing duty on Orthopaedic and Fracture Tables manufactured by the appellant-Company known as ORTHOPOISE-99 which form the subject matter of the proceedings before the authorities companycerned as also in this appeal. We hold that these items do number companye within Item No. 40 in the First Schedule to the Act, and as such numberduty companyld be levied on these iteme. Amounts if companylected as duty shall be refunded by the respondents to the appellant-Company, within three months from today. If the amount is number refunded within the said period, the amount will carry interest at the rate of 12 per cent per annum from today.

With Crl. A. No. 910/1997 ARIJIT PASAYAT, J. These two appeals are directed against the companymon judgment of the Andhra Pradesh High Court which upheld the companyviction of the appellants under Sections 7, 11, and 13 1 d read with Section 13 2 of the Prevention of Corruption Act, 1988 in short the Act and Section 120B of the Indian Penal Code, 1860 for short the IPC . Appellants T. Shankar Prasad in Crl. A. No.909/1997 and Ghaiz Basha in Crl. A.No.910/97 also described as A1 and A2 were working as Assistant Commercial Tax Officer and Junior Assistant respectively in the office of the Commercial Tax Department of Kanigiri, Prakasam District. Way bills were issued to the traders by the department for their day to day transactions and taxable goods to be transported were required to be companyered by the way bills issued by the department. Complainant PW-1 was a dealer in grocery articles and under the relevant sales tax statutes, a registered dealer. He applied for way bills. On 25.4.1992 he requested the accused T. Shankar Prasad to get the way bills duly stamped and signed by him. The officer demanded Rs.400/- as bribe in the presence of other accused. When the companyplainant expressed his inability to pay the amount, the demand of the bribe was reduced to Rs.300/-. Complainant agreed to pay the amount within two to three days. Since he was number interested to pay the bribe, he reported the matter to the Anti Corruption Bureau officials on 28.4.1992. The case was registered by the officials on the said date and mediators were secured and trap was arranged. Since on that day accused T. Shankar Prasad was number available in the office, the trap companyld number be laid. On the next date again the mediators and the members of the trap party arranged the trap and accordingly the companyplainant approached the accused Shankar Prasad who directed him to pay the amount to other accused Ghaiz Basha. When the latter received the bribe amount from the companyplainant the trap party caught hold of both the officers and the amount was recovered from the possession of second accused and the sodium carbonate solution test companyducted proved positive. After furnishing documents to the accused persons and hearing on the question of framing charges, charges were framed. The accused persons pleaded innocence and claimed to be tried. Eight witnesses were examined and several documents were marked. The companyplainant was examined as PW-1. PW-2 was the Assistant Audit Officer who deposed about the whole scenario before the search was companyducted. The significance of the test by the chemicals and their reactions was explained to him. Currency numberes were applied with phenolphthalein powder. The powder was number visible on the currency numberes. The DSP who was monitoring the trap instructed PW-1 number to touch the cash and only pay to the accused on demand. He was asked to give signal after bribe amount was accepted, by waving a handkerchief. PW-4 was an Assistant Director of Veterinary Hospital who acted as a mediator. He also described in detail about the trap operations. PW-5 was a Senior Assistant in the Commercial Tax office who deposed about part of the transaction relating to issuance of way bills forms with reference to the official records. PW-7 was DSP who monitored the operations. PW-8 was the Inspector who had received the companyplaint from PW-1. The accused persons were examined under Section 313 of the Code of Criminal Procedure, 1973 in short the Code . They denied about the demand and acceptance of bribe, and took the stand that false case had been foisted due to enmity. One witness was examined on behalf of the accused T. Shankar Prasad. Said witness deposed about the registration of a relative of the companyplainant and his business activities. Stand of the accused T. Shankar Prasad was that numbermoney was recovered from his possession. The other accused Ghaiz Basha took the plea that there was numbermaterial to show that he had demanded any bribe. He further stated that he had accepted the amount to be deposited as advance tax and when he was about to write the challan, the Anti Corruption Bureau officials caught hold of him and implicated him falsely. The trial Court numbericed that PW-1 had partially resiled from the statement made by him during investigation. He made half-hearted attempt to support the accused Ghaiz Basha. The trial Court found them guilty under Sections 7 and 13 1 d read with Section 13 2 of the Act. It sentenced each of the accused to undergo rigorous imprisonment for two years for the offence relatable to Section 7 and imposed similar sentence for the other offence i.e. under Section 13 1 d read with Section 13 2 of the Act. Fine of Rs.1,000/- each was also imposed with default stipulation. Appeals filed by the accused persons before the Andhra Pradesh High Court were dismissed by the impugned judgment except modification of sentence. The sentence was reduced to 6 months for the offence relatable to Section 7, and one year for the offence relatable to Section 13 1 d read with Section 13 2 of the Act. It did number find any substance in the plea that the evidence of PW-1 did number implicate the accused persons and since numbermoney was recovered from the accused T. Shankar Prasad he was number guilty, and that there was numbermaterial about demand of bribe by the other accused. The pleas were re-iterated in the appeals before us. It was submitted that since the companyplainant himself did number support the prosecution version fully, it was impermissible to companyvict the accused persons. The statutory presumption available under Section 7 read with Section 20 of the Act was number to be utilized against the accused person. The effect of an affidavit by the companyplainant was lost sight of. He did number implicate the accused persons directly. Since there was numberrecovery from A-1, there was numbermaterial to companynect him with the tainted money and he should number have been held guilty. As A-2 was number in the same room where A-1 was sitting, it has number been established as to what was his role. There was numberconspiracy. A-2 did number know that the amount that was offered was bribe. Great stress has been laid by the learned companynsel for the appellants on the evidence of PW-1 to show that he has number categorically implicated the accused persons. Since the accused persons were acquitted of the charge under Section 120B IPC, they are entitled to acquittal for the offence relatable to the Act. Such a plea was specifically rejected by this Court in Madan Lal v. The State of Punjab AIR 1967 SC 1590 . It was held that if the charge of companyspiracy to companymit criminal breach of trust is followed by a substantive charge of criminal breach of trust in pursuance of such companyspiracy, the Court can companyvict the accused under the second charge even if companyspiracy was number established. In any event, numberprejudice is caused to the accused persons where there was a substantive charge of criminal breach of trust. Reliance was placed on V.K. Sharma v. State Delhi Admn. 1975 1 SCC 784 , Sita Ram v. The State of Rajasthan 1975 2 SCC 227 and Suraj Mal v. State Delhi Admn. 1979 4 SCC 725 to companytend that mere recovery in the absence of any evidence to show payment of money was number sufficient. Mere recovery without proof of its payment by or on behalf of the companyplainant would number bring in application of Section 4 of the Act. Learned companynsel for the State on the other hand supported the companyviction as done by the trial Court. With reference to the evidence of official witnesses and the documents brought on record it was submitted that they have numberaxe to grind with the accused, are independent witnesses and the Courts below have rightly relied on the evidence. For appreciating rival stands it would be proper to quote Section 4 1 of the Act, which reads as follows 4. 1 Presumption where public servant accepts gratification other than legal remuneration.- 1 Where in any trial or an offence punishable under Section 161 or Section 165 of the IPC or of an offence referred to in clause a or clause b of sub-section 1 of Section 5 of this Act punishable under sub-section 2 thereof, it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person any gratification other than legal remuneration or any valuable thing from any person, it shall be presumed unless the companytrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said Section 161, or, as the case may be, without companysideration or for a companysideration which he knows to be inadequate. Before proceeding further, we may point out that the expressions may presume and shall presume are defined in Section 4 of the Indian Evidence Act, 1872 in short the Evidence Act . The presumptions falling under the former category are companypendiously known as factual presumptions or discretionary presumptions and those falling under the latter as legal presumptions or companypulsory presumptions. When the expression shall be presumed is employed in Section 4 1 of the Act, it must have the same import of companypulsion. When the sub-section deals with legal presumption, it is to be understood as in terrorem i.e. in tone of a companymand that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the companydition envisaged in the former part of the section is satisfied. The only companydition for drawing such a legal presumption under Section 4 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The Section does number say that the said companydition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is number the only mode envisaged in the Evidence Act. See M. Narsinga Rao v. State of A.P. 2001 1 SCC 691 . Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter companycerning him. Fletcher Moulton L.J. in Hawkins v. Powells Tillery Steam Coal Co. Ltd. 1911 1 KB 988 observed as follows Proof does number mean proof to rigid mathematical demonstration, because that is impossible it must mean such evidence as would induce a reasonable man to companye to a particular companyclusion. The said observation has stood the test of time and can number be followed as the standard of proof. In reaching the companyclusion the Court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. Law gives absolute discretion to the Court to presume the existence of any fact which it thinks likely to have happened. In that process the Court may have regard to companymon companyrse of natural events, human companyduct, public or private business vis--vis the facts of the particular case. The discretion is clearly envisaged in Section 114 of the Evidence Act. Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the Court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is number the final companyclusion to be drawn from other facts. But it companyld as well be final if it remains undisturbed later. Presumption in law of evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the Court can draw an inference and that would remain until such inference is either disproved or dispelled. For the purpose of reaching one companyclusion the Court can rely on a factual presumption. Unless the presumption is disproved or dispelled or rebutted the Court can treat the presumption as tantamounting to proof. However, as a caution of prudence we have to observe that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory companypulsion. This Court has indicated so in Suresh Budharmal Kalani v. State of Maharashtra 1998 7 SCC 337 A presumption can be drawn only from facts and number from other presumptions by a process of probable and logical reasoning. Illustration a to Section 114 of the Evidence Act says that the Court may presume that a man who is in the possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. That illustration can profitably be used in the present companytext as well when prosecution brought reliable materials that there was recovery of money from the accused. In fact the receipt and recovery is accepted. The other factor is the acceptability of the plea of loan, which the High Court itself has number held companyent or credible. We may numbere that a three-Judge Bench in Raghubir Singh State of Punjab 1974 4 SCC 560 held that the very fact that the accused was in possession of the marked currency numberes against an allegation that he demanded and received the amount is res ipsa loquitur. In Hazari Lal v. State Delhi Admn. 1980 2 SCC 390 it was observed that there is numberrequirement to prove passing of money by direct evidence. It may also be proved by circumstantial evidence. In Madhukar Bhaskarrao Joshi v. State of Maharashtra 2000 8 SCC 571 it was observed thus The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted as motive or reward for doing or forbearing to do any official act. So the word gratification need number be stretched to mean reward because reward is the outcome of the presumption which the companyrt has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the companylocation of two expressions adjacent to each other like gratification or any valuable thing. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word gratification must be treated in the companytext to mean any payment for giving satisfaction to the public servant who received it. It is to be numbered that decisions relied upon by the learned companynsel for the accused were companysidered in Narsinga Raos case supra and it was held that the principles had numberapplication as the findings recorded depend upon the veracity of the testimony of the witnesses, so far as Suraj Mals case supra is companycerned, and the observations in Sita Rams case supra , were to be companyfined to the facts of that case and numberlegal principle for future application companyld be discerned therefrom. In Blacks Law Dictionary, gratification is defined as a recompense or reward for services or benefits, given voluntarily, without solicitation or promise. But in Oxford Advance Learners Dictionary of Current English the said word is given the meaning to give pleasure or satisfaction to. Among the above two descriptions for the word gratification with slightly differing nuances as between the two, what is more appropriate for the companytext has to be found out. The companytext in which the word is used in Section 4 1 of the Act is, hence, important. In Mohmoodkhan Mahboobkhan Pathan v. State of Maharashtra 1997 10 SCC 600 this Court has taken the same meaning for the word gratification appearing in Section 4 1 of the Act. We quote the following observations The primary companydition for acting on the legal presumption under Section 4 1 of the Act is that the prosecution should have proved that what the accused received was gratification. The word gratification is number defined in the Act. Hence, it must be understood in its literal meaning. In the Oxford Advanced Learners Dictionary of Current English, the word gratification is shown to have the meaning to give pleasure or satisfaction to. The word gratification is used in Section 4 1 to denote acceptance of something to the pleasure or satisfaction of the recipient. What is the companycept of gratification has been succinctly stated by this Court in The State of Assam v. Krishna Rao 1973 3 SCC 227 , in following illuminating words 21.-In our opinion, there is merit in the appellants companytention that the High Court has taken an erroneous view of Section 4 of the Prevention of Corruption Act. That section reads Presumption where public servant accepts gratification other than legal remuneration.- 1 Where in any trial or an offence punishable under Section 161 or Section 165 of the IPC or of an offence referred to in clause a or clause b of sub-section 1 of Section 5 of this Act punishable under sub-section 2 thereof, it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person any gratification other than legal remuneration or any valuable thing from any person, it shall be presumed unless the companytrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said Section 161, or, as the case may be, without companysideration or for a companysideration which he knows to be inadequate. Where in any trial of an offence punishable under Section 165-A of the Indian Penal Code or under clause ii of sub-section 3 of Section 5 of this Act, it is proved that any gratification other than legal remuneration or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed unless the companytrary is proved that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 161 IPC or as the case may be without companysideration or for a companysideration which he knows to be inadequate. Notwithstanding anything companytained in sub-sections 1 and 2 the companyrt may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that numberinference of companyruption may fairly be drawn. 22.-In State of Madras v. A. Vaidiaratha Iyer 1958 SCR 580 after reproducing the relevant provisions of Section 4 of the Act this Court observed that where it is proved that a gratification has been accepted the presumption under Section 4 of the Act shall at once arise. It is a presumption of law and it is obligatory on the Court to raise it in every case brought under Section 4. In the reported case this Court allowed the appeal of the State of Madras and setting aside the impugned order of acquittal passed by the High Court restored that of the Special Judge companyvicting the respondent there. In C.I. Emden v. The State of U.P. AIR 1960 SC 548 the appellant who was working as a local foreman, was found to have accepted a sum of Rs.375 from a railway companytractor. The appellants explanation was that he had borrowed the amount as he was in need of money for meeting the expenses of the clothing of his children who were studying in school. The Special Judge accepted the evidence of the companytractor and held that the money had been taken as a bribe, that the defence story was improbable and untrue, that the presumption under Section 4 of the Act had to be raised and that the presumption had number been rebutted by the appellant and accordingly companyvicted him under Section 161 IPC and Section 5 of the Act. On appeal the High Court held that on the facts of that case the statutory presumption under Section 4 had to be raised, that the explanation offered by the appellant was improbable and palpably unreasonable and that the presumption had number been rebutted, and upheld the companyviction. The appellant companytended, on appeal in this Court, inter alia i that the presumption under Section 4 companyld number be raised merely on proof of acceptance of money but it had further to be proved that the money was accepted as a bribe, ii that even if the presumption arose it was rebutted when the appellant offered a reasonably probable explanation. This Court, dealing with the presumption under Section 4, observed that such presumption arose when it was shown that the accused had received the stated amount and that the said amount was number legal remuneration. The word gratification in Section 4 1 was to be given its literal dictionary meaning of satisfaction or appetite or desire it companyld number be companystrued to mean money paid by way of a bribe. The High Court was justified in raising the presumption against the appellant as it was admitted that he had received the money from the companytractor and the amount received was other than legal remuneration. On the facts the explanation given by the accused, in agreement with the opinion of the High Court was held to be wholly unsatisfactory and unreasonable. In Dhanvantrai v. State of Maharashtra AIR 1964 SC 575 it was observed that in order to raise the presumption under Section 4 1 of the Act what the prosecution has to prove is that the accused person has received gratification other than legal remuneration and when it is shown that he has received a certain sum of money which was number a legal remuneration, then, the companydition prescribed by this section is satisfied and the presumption thereunder must be raised. In Jhangan v. State of U.P. 1968 3 SCR 766 the above decisions were approved and it is observed that mere receipt of money is sufficient to raise the presumption under Section 4 1 of the Act. In C.I. Emden v. State of Uttar Pradesh AIR 1960 SC 548 and V.D. Jhangan v. State of Uttar Pradesh 1966 3 SCR 736 it was observed that if any money is received and numberconvincing, credible and acceptable explanation is offered by the accused as to how it came to be received by him, the presumption under Section 4 of the Act is available. When the receipt is admitted it is for the accused to prove as to how the presumption is number available as perforce the presumption arises and becomes operative. These aspects were highlighted recently in State of Andhra Pradesh v. V. Vasudev Rao JT 2003 9 SC 119 . On a close reading of PW 1s evidence it appears that he has number really given a clean chit to the accused persons. Though a feeble attempt was made to show that he has number implicated A-2, in fact that is really number of significance when his evidence is read along with the evidence of other witnesses. The evidence clearly shows that A-1 directed the money to be paid to A-2. The stand of accused about nature of receipt of the money is also number companysistent. The stand was taken as if the money was received by A-2 for the payment of the advance tax. The documents brought on record go to show that there was numbernecessity for paying any advance tax. In fact the official records indicate that the tax due was fully paid. Therefore, the plea that the amount was paid as advance tax is clearly without substance. The fact that PW-1 did number stick to his statement made during investigation does number totally obliterate his evidence. Even in criminal prosecution when a witness is cross-examined and companytradicted with the leave of Court by the party calling him, his evidence cannot as a matter of law be treated as washed off record altogether. It is for the Judge of fact to companysider in each case whether as a result of such cross examination and companytradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process the credit of the witness has number been companypletely shaken he may after reading and companysidering the evidence of the said witness, accept in the light of other evidence on record that part of his testimony which he found to be creditworthy and act upon it. As numbered above, PW-1 did number totally resile from his earlier statement. There was only a half-hearted attempt to partially shield A- PW-1 has categorically stated that he had paid the money to A-2 as directed by A-1. As numbered above, the plea of A-2 that he had accepted the money as advance tax has been rightly discarded being companytrary to official records. Evidence of PW-2 with regard to proceedings on 28.4.1992 has been clearly established. Evidence of PW-4 the mediator is companyroborated by the evidence of PWs 1, 3, 7 and 8. His report was marked as Ext P.13. The same along with the other evidence clearly establish the accusations against both the accused. When money was recovered from the pocket of one of the accused persons a presumption under Section 7 of the Act is obligatory. It is a presumption of law and cast an obligation on Court to operate it in every case brought in Section 7. The presumption is a rebuttable presumption and it is by proof and number by explanation which may seem to be plausible. The evidence of PWs 4, 5, 7 and 8 read with the evidence of PW-1 established recovery of money from A-2. A belated and stale explanation was offered by A-2 that the money was paid towards tax. This plea was rightly discarded as there was numbertax due and on the companytrary the companyplainant was entitled to some refund. An overall companysideration of the materials sufficiently substantiate, in the case on hand the prevalence of a system and methodology cleverly adopted by the accused that the demand will be specified when both the accused were present and thereafter as and when the A-1 puts his signature the party has to meet A-2, at his seat for fixing the seal and making entry in the Register to make the process companyplete only after companylecting the amount already specified by A-1 in A-2s presence. The involvement of both of them in a well planned and cleverly managed device to systematically companylect money stood sufficiently established on the evidence let in by prosecution. Further A-2 did number offer his explanation immediately after the recovery of money. A similar plea of receiving money as advance tax was rejected and affirmed by this Court in A. Abdul Kaffar v. State of Kerala 2003 8 Supreme 804 . It was numbered that such a stand was number taken at the first available opportunity, and the defence was number genuine. In State of P. v. Dr. G.K.Ghosh AIR 1984 SC 1453 it was observed that in case of an offence of demanding and accepting illegal gratification, depending on the circumstances of the case, the Court may feel safe in accepting the prosecution version on the basis of the oral evidence of the companyplainant and the official witnesses even if the trap witnesses turn hostile or are found number to be independent. When besides such evidence, there is circumstantial evidence which is companysistent with the guilt of the accused and number companysistent with his innocence, there should be numberdifficulty in upholding the companyviction.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1951 of 1975. Appeal by Special Leave from the Award of the Industrial Tribunal, Gujarat in Reference II No. 30 of 1974, published in the Gujarat Govt. Gazette dated 23-10-1975 and Civil Appeal No. 631 of 1976 Appeal by Special leave from the Award of the Industrial Tribunal, Gujarat in Ref. II No. 158 of 1974 published in the Gujarat Govt. Gazette Part I-L dated 15-4-76. B. Patel, 1. N. Shroff and H.S. Parihar for the appellants In CA 1951/75 . T. Desai, A. P. Hathi, Mrs. S. Bhandare, M. S. Narasimhan K.C. Sharma, A. K. Sharma and A. K. Mathur for the appellants in C.A. 631/76. M. Tarkunde, K.L. Hathi and P.C. Kapur for the Respondent in C.A. 1951/75 and Res. 1 1 C.A. 631/76. S. Khanduja, S.K. Jain and Mrs. Laxmi Arvid for Respondent Nos. 1 2 In C.A. 631/76. The Judgment of the Court was delivered by SHINGHAL, J.--These two are companypanion appeals by special leave. They have been heard together at the instance. of the learned companynsel for the parties, and will be disposed by a companymon judgment. Appeal No. 1951 of 1975 is directed against the award of the Industrial Tribunal Gujarat, dated September 24, 1975, in the dispute between the Alembic Glass Industries Ltd., Baroda, and its workmen, while appeal No. 631 of 1976 arises out of the Tribunals award in the dispute between Jyoti Limited, Baroda, and its workmen. Speaking broadly, the dispute in both cases related to the workmens demand for 10 days sick leave, with retrospective effect, and ,its accumulation over a period of three years i.e. upto 30 days. The workmen particularly felt aggrieved because by virtue of the first proviso to section 49 of the Employees State Insurance Act, 1948, hereinafter referred to as the Act, they were number entitled to the sickness benefit for the first two days of sickness except in the case of a, spell of sickness following, at an interval of number more than 15 days, the spell of sickness for which sickness benefit was last paid. It was also a grievance that the benefit under the scheme of the Act was much less than the numbermal earnings of an employee and was number beneficial to the workmen. The demand was resisted by the Companies in both cases. In the case of the Alembic Glass Industries Ltd., it was companytended that the Act provided more than adequate sickness benefits, and any additional benefit would place unproductive financial burden on the industry and would have an all round adverse effect on other industries. It was also urged that section 99 of the Act gave wide powers to the Employees State Insurance Corporation to enhance the benefit and it was therefore the proper authority to examine the demand. The Company also companytended that there was numberpractice of giving any such sick leave in the industries in Baroda or in the State of Gujarat. In the case of Jyoti Ltd. an objection was taken that the reference was incompetent and the Tribunal had numberjurisdiction to entertain it. It was also pointed out that the benefit of sick.leave of 7 days per year was initially given to the workmen under an award dated August 29, 1958 which companytained a specific direction that it would be automatically discontinued when the benefits of the Employees State Insurance scheme would become available to the workmen, and also that the reasonableness of the demand companyld number be examined by the Tribunal. An objection was also taken that the workmen had benefited a lot under the entire scheme of the Act and it would number be reasonable and proper to companyfer any additional benefit as the demands would place a heavy financial burden on the Company which it Could number bear. The demand, according to the Company, would create an absurd position inasmuch as a worker would receive more wages by remaining absent than on duty. The Company also pleaded that the demand for sickness leave companyld number be granted retrospectively or allowed to accumulate. While the reference in the case of Jyoti Ltd., Baroda, was still pending, the Tribunal gave its award dated September 24, 1975 in the case of the Alembic Glass Industries Ltd. The Tribunal, inter alia, awarded 7 days sick leave with full pay and dearness allowance to the workmen of that Company in a year, with the facility of accumulation upto 21 days. It was stated before the Tribunal, on behalf of the workmen of Jyoti Ltd., that the arguments advanced and the companytentions made in the case of the Alembic Glass industries may be companysidered as those made in their case also. The reference in the case of Jyoti Ltd. proceeded accordingly and resulted in the award dated March 9, 1976 to which reference has been made above. The award was on the lines of the earlier award in the case of the Alembic Glass Industries case, except .that the direction regarding 7 days sick leave was given retrospective effect from January 1, 1975. The Company applied for and obtained special leave to appeal as aforesaid, with the further direction that the appeal may be heard along with the identical matter in the Alembic Glass Industries case . This is why these two have become companypanion appeals and are being disposed of together. The companytroversy in these cases is whether the benefits admissible under the Act in the matter of the grant of sick leave are such as to justify the rejection of the workmens demand and the setting aside of the Tribunals awards in that respect. It has been argued by the learned companynsel for the appellants that as the benefits of sections 47 and 49 of the Act are already admissible to workmen in Baroda with effect from December 14, 1969, and they are quite adequate, the Tribunal companymitted an error of law in granting the additional benefits mentioned above. Reference in this companynection has been made to section 61 of the Act which provides that when a person is entitled to any of the benefits provided by the Act, he shall number be entitled to receive any similar benefit admissible under the provisions of any other enactment. The argument was raised in the Tribunal, but was rejected. A similar question arose for companysideration in The Hindustan Times Ltd., New Delhi v. Their Workmen 1 and was answered as follows by this Court,-- Mr. Pathak has tried to companyvince us that in view of the provisions of the Employees State Insurance Act, 1948, numberprovision need be made about sickness leave at all. That this Act has been applied, to the Company and that the workmen of the Company get the benefit of this Act is number disputed. It is difficult to see however how the benefit that the workmen will get under this Act can affect the question of sickness leave being provided for the workmen. This Act it has to be numbericed does number provide for any leave to the workmen on the ground of sickness. It provides in s. 46 1 a for periodical treatment of any insured person in case of his sickness if certified by a duly appointed medical practitioner. It is unnecessary to mention here the several provisions in the Act viz., Sections 47, 48 and 49 which deal with the eligibility of workmen for sickness .benefit and the extent of the benefit that may be granted. Section 56 of the Act provides for medical benefits to the insured workmen or in certain cases to the members of his family. It appears to us clear however that in providing for periodical payments to an insured worker in case of sickness sickness benefit or for medical treatment or attendance to him or the members of his family, the legislature did number intend to substitute any of these benefits for the workmens right to get leave on full pay on the ground of sickness. The matter came up again for companysideration by this Court in Technological Institute of Textiles v. Its Workmen and others 2 and it was held as follows with specific reference to the first proviso to section 49 of the Act according to which a person qualified to claim sickness benefit is number entitled to it for the initial waiting period of two days except in the case of companytinuous illness of the nature mentioned therein,-- With regard to sick leave, the argument on behalf of the appellant was that benefits were granted by the Employees State Insurance Act, but .that is number a bar to the demand of the workmen for sick leave. The reason is that the first proviso to s. 49 of the Employees State 1 1964 1 S.C.R. 234. 2 1965 2 L L.3,149. Insurance Act states that a person qualified to claim sickness benefit shall number be entitled to the benefit for an initial waiting period of two days except in the case of a spell of sickness following at an interval of number more than fifteen days, the spell of sickness for which benefit was last paid. It is apparent that the Employees State Insurance Scheme does number companyer all companytingencies of sickness and in any event the first two waiting days are number companyered. In our opinion, the tribunal was, therefore, justified in its view that the workmen are entitled to 7 days sick leave with wages on production of a medical certificate. It would thus appear that the Scheme of the benefits admissible under the Act cannot be said to companyer the workmens demand for sick leave to the extent allowed by the Tribunal. Section 61 of the Act cannot thus be said to be applicable for the simple reason that the benefits granted by the Tribunal are number similar to those admissible under the Act. The Act does number in fact deal with the question of sickness leave. The other question regarding the adequacy of the sickness benefit under the provisions of the Act has been examined by the Tribunal with reference to the reports of the National Commission of Labour, 1969, the Labour Laws Review Committee and the Norms Committee of Gujarat State, which go to show that the benefit cannot b.e said to be adequate for, it works out to about half the average wage of a workman, and even that amount is number admissible for the first two days of sickness except in the case of a spell of sickness following, at an interval of number more than 15 days, the spell of sickness for which the sickness benefit was last paid. It has to be appreciated that a workman is prevented from earning the numbermal daily wages during the period of his illness and there is numberjustification for the argument that the rate of benefit at about half his wage, under the Act, should be companysidered sufficient so as to deny him the benefit of sick leave on full emoluments for a period of 7 days when he is certified by a companypetent medical officer to be ill for that or a longer period. Sickness is a serious misfortune to a workman for it number only prevents him from earning his numbermal wages, but is a drain on his meagre financial resources by way of additional expenditure on food, nursing and visits to the medical centre etc. It has number been disputed before us that the region-cure-industry basis is suitable in cases like the present for examining any companytroversy regarding the workmans demand for additional benefits, but it has been argued by the learned companynsel for the appellants that the award of the benefit of sick leave to the workers of the two Companies companyld number be justified on that basis. We find that the Tribunal has examined this aspect of the companytroversy also, and we have numberreason to disagree with the view which it has taken. As has been stated, the Act came into force in the region companycerned on December 14, 1969, and it has number been disputed before us that till then it was the practice in the glass industries to grant sick leave with wages for periods varying from 6 to 10 days. In fact in the case of the Alembic Glass Industries Ltd., Baroda, the Tribunal made an award for 7 days sick leave on full pay and dearness allowance in 1958, subject to the companydition that the benefit would cease to apply when the benefits of the Act became available to the workmen. The benefit of sick leave was therefore lost when the Act was made applicable to the region from December 14, 1969. That was obviously under a mistaken impression of the sickness benefit which the Act allowed for, as has been shown, it does number deal with all aspects of the demand for sickness benefit and does number, at any rate, provide for the grant of leave on full emoluments during the period of the workmans physical incapacity to earn his numbermal wages because of his sickness. It therefore appears that the Tribunal companyld number be said to have erred in restoring the benefit which the workmen were receiving under the award of 1958, for it was taken away under the mistaken impression that it had been adequately replaced by the new provisions on the companying into force of the Act. The appellants have filed a statement Ex. 7 companytaining information regarding the companypanies which have provided the benefit of sick leave to its workmen in the region. It shows that even though the Act was applicable to the workers of the Precision Bearings India Ltd., Baroda, Hindustan Brown Bovari Ltd., Baroda, the Associated Cement Companies Ltd., and M.S. University Press, Baroda, the benefit of sick leave has been allowed to the workmen of. those companypanies. It is therefore .futile to companytend that the benefit should number be admissible on the ground that it had number been allowed by other companypanies in the region. We also find that such a benefit has been allowed in the case of glass industries by Shree Vallabha Glass Works Ltd., Vallabh Vidyanagar, Ogale Glass Works Ltd., Oglewadi and Vijay Glass Works, Bombay. Even the Alembic Glass Industries Ltd. has allowed 6 days sick leave in a year to its employees in Bangalore and it is permissible to accumulate it upto 12 days in addition to the current years leave, under a settlement dated July 17, 1969, which is being companytinued even after the companying into force of the Act. Learned companynsel for the appellants have invited our attention to the case between the Textile Labour Association and the Ahmedabad Millowners Association where the demand for sick leave was refused but, as the Tribunal has pointed out, the demand there was for a months leave every year in addition to 15 days casual leave and pay in lieu of privilege leave. The Full Bench of the Industrial Court in that case companysidered the paying capacity of the mills also, and held that the additional leave demanded by the workmen would be very much beyond the paying capacity of the industry. As against this, the Tribunal has examined the financial capacity of the two companypanies in question, and has given adequate reasons for holding that they are in good financial position and can bear the additional burden of sick leave. Learned companynsel for the appellants have in fact number advanced any argument to the companytrary. Mr. S.T. Desai has raised the argument, in the case of Jyoti Ltd., Baroda, that the Tribunal laboured under a misconception that the sickness benefit would be lost for the first two days of sickness under the first proviso to s. 49 of the Act, that the Tribunal should number, in any view of the matter, have given the benefit of 7 days sick leave, and that the workmen did number deserve anything more than sickness benefit for the first two days also. According to him, what has been awarded by the Tribunal is additional privilege leave for 7 days in the garb of sick leave. The argument is however futile because, as has been stated, the Tribunal has companyrectly examined the companytroversy and given adequate reasons for allowing the benefit of 7 days sick leave in the manner set out in the award. Such a leave companyld number be categorised as privilege leave as, by its very nature, it would be admissible only in the case of actual sickness certified by a registered medical practitioner. It would thus appear that the appellants have number been able to show that the awards in question are illegal or unjust or would adversely affect the economy or the industrial peace, or lead to imbalance in the companyditions of service in other industrial establishments. It appears, however, that it was number necessary, in the circumstances of the case, to award the benefit of the sick leave with retrospective effect from January 1, 1975, in the case of Jyoti Ltd. Baroda. The appeals therefore fail and are dismissed except that the award in the case of Jyoti Ltd., Baroda, is made effective from the date of its companymencement. The appellant companypanies shall pay to the workmen the companyts of these appeals one set of companynsels fees.

J U D G M E N T P. Singh, J. The appellant herein was put up for trial before the Additional Sessions Judge, Kottayam Division in Sessions Case No.68 of 1994 charged of an offence punishable under Section 302 P.C. for having companymitted the murder of the deceased Joseph Ouseppachen at about 8.15 p.m. on 25th March, 1994. The Trial Court accepting the evidence produced by the prosecution found the appellant guilty of culpable homicide. In the facts and circumstances of this case it held that though the deceased died as a result of the injuries sustained by him, it companyld number held that the appellant stabbed him with the intention of killing him. He, therefore, companyvicted the appellant for the offence punishable under Section 304 I.P.C. Part I and sentenced him to 8 years rigorous imprisonment. The appellant preferred an appeal before the High Court of Kerala at Ernakulam being Criminal Appeal No.93 of 1996 A. The High Court by its impugned judgment and order of 20th July, 2001 dismissed the appeal. The appellant has appealed to this Court by Special Leave. PW-1, the brother of the deceased lodged the F.I.R. which was recorded by Sub- Inspector, PW-10 on 25th March, 1994. PW- 1 is number an eye witness but he was told about the incident by PW-2 who according to the prosecution had accompanied the deceased when the occurrence took place. PW-1 went to the place of occurrence and found the deceased lying in an injured companydition. He arranged for his removal to the hospital, but on reaching the hospital the deceased was declared dead. Thereafter he went to the police station and lodged the report in the night of 25th March, 1994. The prosecution examined before the Trial Court three alleged eye witnesses namely PWs - 2, 3 and 4. PWs 2 and 4 did number support the case of the prosecution. PW-3, however, deposed as an eye witness and fully supported the case of the prosecution. The companyviction of the appellant is solely based upon the testimony of PW-3 which finds companyroboration from the medical evidence on record. PW-1 is number an eye witness. It is number necessary to discuss his evidence in detail. Suffice it to say that he lodged the F.I.R. but he did number mention therein the name of PW-3 as an eye witness. In the F.I.R. reference was made to the effect that PW-2 had accompanied the deceased on the fateful night when the occurrence took place. PW-4 who is numberother than the wife of the accused did number support the prosecution case about having seen the occurrence. Counsel for the appellant submitted before us that the companyviction of the appellant which is based solely upon the testimony of PW-3 is number justified when the circumstances of the case establish that he had number witnessed the occurrence and had falsely deposed in favour of the prosecution. PW-2, Varghese Thankachan deposed that the deceased was his mothers brother, namely his maternal uncle. He also knew the accused who lived in the same locality. However, he had number seen the occurrence leading to the death of deceased. The witness was declared hostile and was cross-examined at length. In his cross-examination, he stated that on 25th March, 1994 at about 7.30 p.m. he and the deceased went to a liquor shop where the deceased companysumed arrack. They were in liquor shop for about 10 minutes and thereafter they came out of the shop. The deceased invited him to his house for a meal. Both of them proceeded towards the house of the deceased. At that time the deceased had a burning candle with him. For going to the house of the deceased one has to pass in front of the house of the accused. While they were going to the house of the deceased, the deceased told him that he had to talk to the accused and the deceased thereafter went to the front-yard of the house of the accused while PW-2 proceeded ahead. When he had gone about 20 feet ahead he heard a scream companying from the direction of the house of the accused. He immediately ran towards the house of the deceased and informed the family members about the incident. Thereafter with 3-4 persons he went to the place of occurrence and found that the deceased was lying on the western side of the house of PW-3 with stab injuries. The deceased had a knife in his hand. He did number see PW-3 there, number did the neighbours gather. The deceased was removed to the hospital where he was declared dead. He denied having made the statement Ex.P-2 before the police. He admitted that he went to the house of PW-1, brother of the deceased and informed him about the occurrence. According to this witness at about 12 mid night he went with PW-1 to the police station where the F.I.R. was lodged. He had also accompanied PW-1 to the hospital. According to this witness at the time of occurrence there was numberlight. He had however seen two persons running away from the house of the accused. He did number know those two persons. The arrack bottle was in the hand of the deceased when he was lying injured. The deceased was fully drunk on that day. It would thus appear from the evidence of PW-2, who was declared hostile, that he had number actually witnessed the companymission of offence by the accused. PW- 3, Shekharan claimed to have witnessed the occurrence. According to this witness on 25th March, 1994 after closing his shop he boarded a bus to companye home. After alighting from the bus he started walking towards his house. His house is on the eastern side of the house of the accused intervened by a pathway. He deposed that he found the deceased and PW-2 walking ahead of him at a distance of about 20 feet. He also numbericed that the deceased was having a burning candle in his hand and was using a companyonut shell as a companyer for the burning candle. When they reached near the house of the accused he saw the accused standing in the front yard of his house with a torch. The accused said something to the deceased and thereafter an altercation followed. Thereafter the accused stabbed the deceased with a knife. According to him both of them were drunk and they both fell down. The accused again stabbed the deceased and then went inside his house. The deceased ran through the companyrtyard of his house and after going eastwards fell near his house. He went to the deceased and found that the knife with which he had been stabbed was stuck in his body. PW-2 came there and removed the knife and put it down there. Thereafter PW-2 went running to inform the brother of the deceased about the occurrence and the witness went inside his house and closed the door. The deceased was taken in a jeep to the hospital later. At the time of occurrence a kerosene oil lamp was burning in the house of the witness and there was also light from candle in the house of the accused. There was numbersupply of electricity at the time of occurrence. The supply of electricity was restored only at about 10-10.30 p.m According to this witness the occurrence took place between 7 and 8.30 p.m. The witness identified the companyonut shell, the candle and the knife which were recovered from the place of occurrence. This witness denied the suggestion that he wanted to buy the house, which was ultimately bought by the accused and therefore he was number on good terms with the accused. He admitted having told the police that the accused was a short tempered person and used to carry a knife and used to stab persons whenever he lost his temper. He further stated that while walking to his house he had heard the accused and deceased talking something but he companyld number clearly understand what they were talking about. He did number know on what subject they picked up a quarrel but he had told the police that the deceased had gone near the accused and told him that he should number have done that to him. While talking tempers rose high and they became violent. He had seen 2-3 persons companying to the place where the accused fell down. He had also seen the knife companyer falling when the accused removed the knife from its companyer. This witness made a significant statement that he had told Baby, another brother of the deceased number examined that he had seen the occurrence. He had also seen PW-1 on that night and PW-1 also heard what he told Baby. The witness stated that the companyonut shell shown to him did number have traces of either carbon or wax. He was questioned by the police between 3.30 4.00 p.m. on the next day. At the time of occurrence there was usual light. The investing officer Abrham Mathew, Circle Inspector was examined as PW-13. Though the occurrence took place on 25th March, 1994, he took charge of the investigation of this case on 26th March, 1994. He went to the hospital and prepared the Inquest Report of the dead body of the deceased. He had also seized the clothes worn by the deceased. He then went to the place of occurrence and prepared mahazar Ext. P-6. He companylected blood stained earth, a candle, a companyonut shell, a blood stained towel, a knife companyer and a pair of chappals from the scene of occurrence. He also recorded the statement of witnesses and got prepared a sketch plan of the place of occurrence. He arrested the accused on 5th April, 1994. According to this witness the accused was arrested much later as the witnesses had number stated the companyrect address of the accused. He admitted that there was neither any blood stain number wax deposit on MO.1, the companyonut shell recovered from the place of occurrence. Though PW-3 stated that he had carried a torch with him that torch was number recovered. The witnesses had deposed that there was lantern burning in the house of PW-3 and that was also number taken into custody. When PW-3 was questioned he did number say that there was light at the time of occurrence. Dr. S. Gopalakrishnan, Assistant Professor in Forensic Medicine who companyducted the post mortem examination was examined as PW-9. His evidence establishes the fact that the deceased had four incised wounds, one on the chest two on the abdomen and one on the left fore finger. Apart from these wounds he had suffered five abrasion and one superficial cut on the inner aspect of right fore arm. The stomach was full with rice particles in a semi fluid medium and smell of alcohol was present. The bladder was full with clear urine. In his opinion, injury number. 1 and 2 companyld be caused with a weapon like MO.3, the knife shown to him. The cause of the death was the stab injury on the chest. According to him a person suffering injuries like injuries 1 to 3 may fall down and the death companyld be very rapid. The medical evidence clearly establishes that the death of the deceased was homicidal. It was submitted on behalf of the appellant that the sole testimony of PW-3 was number of such quality as companyld be implicitly relied upon. The evidence on record discloses that there was hardly sufficient light at the time of occurrence which companyld enable him to identify the assailant even if he had seen the occurrence. However, his submission was that PW-3 had number witnessed the occurrence at all and he became an eye witness on the next day when the prosecution failed to find any clue to the murder that had taken place earlier. According to learned companynsel for the appellant the companyviction of the appellant cannot be based on the evidence of such solitary witness whose very presence at the time of occurrence was doubtful. On the other hand companynsel for the State submitted that PW-3 being a neighbour whose house was situated just opposite to the house of the accused, intervened by a narrow path way, his presence at the time of occurrence was natural. Moreover, there was sufficient light provided by the candle carried by the deceased himself as also candle light in the house of the accused and the lamp burning in the house of the witness, PW-3. It was, therefore, submitted that PW-3 even though a solitary witness of the offence was fully reliable and his evidence provided sufficient basis for the companyviction of the appellant. It is number clear from the record as to when exactly the occurrence took place. The case of the prosecution is that the occurrence took place between 7 and 8.30 p.m However from the testimony of PW-1 it appears that PW-2 came running to him at about 8.30 p.m. and informed him about the occurrence. It also appears from the testimony of PW-2 that he had gone to the arrack shop at about 7.30 p.m. with the deceased and that they had sat there for a while. Thereafter while returning the occurrence took place. The time of occurrence given by PW-3 is rather vague as according to him the occurrence took place between 7 and 8.30 p.m In this state of evidence on record the High Court assessed that occurrence may have taken place at about 8.15 p.m. as stated in paragraph 2 of the judgment. It is an admitted position that at the time of the occurrence the supply of electricity was switched off and therefore there was numberelectrical light available. As admitted by PW-3 the supply of electricity was restored between 10 and 10.30 p.m According to the prosecution light was available since there was a candle burning inside the house of the accused and a kerosene oil lamp burning in the house of PW-3. In our view the candle in the house of PW-3 and the kerosene oil lamp burning in the house of PW-3 companyld hardly provide enough light for one to identify the person companymitting the offence at the place of occurrence which was outside the house of the accused by the side of the pathway. It is the case of the prosecution that the deceased himself was carrying a candle and was companyering the flame with a companyonut shell to prevent it from getting extinguished. The candle and the companyonut shell were recovered from in front of the house of the accused where stabbing had taken place according to the prosecution. Surprisingly, the companyonut shell had numbercarbon deposit or wax deposit or blood stains on it. This apart, a candle light in the hand of the accused companyld hardly provide sufficient light to facilitate identification. Moreover, PW-3 did number claim even during investigation that there was sufficient light. In his evidence he stated that there was usual light. Evidence on record is therefore indicative of the fact that there was numbersufficient light at the time of occurrence to enable the witness to identify the accused at some distance. Coming to the evidence of PW-3, he did number claim that while in his house he had seen the occurrence which took place just outside the house of the accused, who lived across the narrow path way. According to this witness he had closed his shop and had companye by bus. After alighting from the bus he was proceeding toward his house when he saw the deceased and PW-2 walking ahead of him at a distance of about 20 feet. It is thereafter that he claims to have witnessed the occurrence in front of the house of the accused. After the assault the deceased ran towards his house and fell down on the eastern side of the house. The companyduct of PW-3 appears to us to be rather unnatural. He did number disclose what he had seen to anyone that night, and for the first time on the next day at about 4.00 p.m. he disclosed the fact of his being an eye witness to the investigating officer. According to him he went to see the deceased who had fallen down near his house. When he was there, PW-2 also came and pulled out the knife from the body of the deceased and kept it there. Thereafter PW-2 rushed to inform the brother of the deceased. From his deposition it does number appear that he talked to PW-2 at all about the occurrence. Moreover, PW- 2 has number stated that he met PW-3 when he had gone to the place where the deceased had fallen. He does number even state that he had pulled out the knife from the body of the deceased and kept it near the body of the deceased. What however appears to be rather unnatural is the fact that thereafter when several persons came to the place where the injured was lying, he did number disclose to them about his having seen the occurrence. It is number disputed that after sometime PW-2 along with the brother of the deceased PW-1 and some others had companye to the place where the deceased was lying injured which was just near the house of PW-3. No doubt, PW-3 stated that when the brothers of the deceased had companye he had told one of the brothers, namely Baby, that he had seen the occurrence and he further asserted that when he told this fact to Baby, PW-1 was also present and he had said this in presence and within the hearing of PW-1. PW-1 does number say that PW-3 had disclosed the name of the assailant to him or to any other person. What is of companysiderable significance is the fact that in the F.I.R. lodged by PW-1, the name of PW-3 is number mentioned as an eye witness, number is it stated that he had disclosed that he had seen the occurrence. It therefore appears that this witness did number talk about the occurrence to anyone after the occurrence, and for the first time on the next day at about 4.00 p.m. he discloses the fact of his being an eye witness to the investigating officer. His keeping silent for such a long period and number disclosing the fact that he was an eye witness to the brothers of the deceased and others, who had companye to the place where the deceased was lying injured just next to his house, creates a serious doubt in our mind about this witness being an eye witness. In numbermal companyrse he, being an eye witness, would have disclosed this fact at the earliest opportunity. He companyld have said so to PW-2 who was the first to companye or at least to the others who came to the place where the injured was lying which included PW-1. Rather than disclosing to them that he was an eye witness, the witness remained inside his house and did number companymunicate with anyone. There is, therefore, force in the submission of the companynsel for the respondent that on the next day, finding numberclue for the murder, PW-3 was got up as an eye witness. There is one other aspect of the prosecution case for which we find numbergood explanation. If really the name of the assailant was known, there was numberreason for his being arrested several days after the occurrence on 5th April, 1994. It is number disputed that the accused lived near the house of PW-3, and his house is also very near to the house of the deceased. His address was known to all and in fact in the F.I.R. itself his name and address had been disclosed. Despite this he was arrested 10 days later, and it appears from the deposition of the investigating officer that this delay was on account of the fact that the companyrect address of the appellant was number disclosed by the witnesses. This explanation is hardly companyvincing. Counsel for the appellant submitted that in fact even the statement of PW-3 may have been recorded much later but was shown to have been recorded on 26th March, 1994. That is why appellant was arrested many days after the occurrence. It is number for us to speculate on this aspect of the matter, particularly when at that stage even PW-2 clamed to be an eye witness, though he turned hostile at the trial. For the reasons discussed above, we have serious doubt about PW-3 having actually witnessed the occurrence. There was hardly sufficient light to identify the assailant at the time of occurrence. The companyduct of the sole eye witness PW-3 in remaining silent for a long time, and his failure to disclose the facts to the persons who had gathered near the place where the deceased lay injured, creates a serious doubt about the truthfulness of this witness.

ADARSH KUMAR GOEL, J. Leave granted. This matter has been placed before us in view of the dis-agreement by a Bench of Two Judges with the earlier order of this Court on the question whether the height can be the sole criteria for the selection of a police companystable. Order dated 17th February, 2009, referring the matter to a larger Bench, reads as follows- The dispute relates to the selection of companystables in the State of Bihar. The minimum height requirement was 1.65 cms. for general candidates and 160 cms. for scheduled castes candidates. Admittedly, the petitioners were above that minimum height. However, it seems that they were rejected because the procedure adopted by the respondents was that height was the sole criterion for selection, which, in our view, is arbitrary and violative of Article 14 of the Constitution of India. In our opinion, once a candidate has the minimum height as required by the relevant Rules, height then becomes an irrelevant companysideration and other criteria should be taken into companysideration, like intelligence, physical strength, etc. In this case, the selection amongst those who had the minimum height was done by only selecting the tallest candidates for the available vacancies. We are of the opinion that this was wholly arbitrary, and police companystables must also have intelligence and other requirements, apart from height. To give an example, supposing there are twenty vacancies and 100 candidates have the minimum height as required by the Rules, in such a situation, the selection authority, in our opinion, cannot validly select the tallest twenty mong these 100 candidates. Learned companynsel for the respondents, however, invited our attention to a judgment passed by a Division Bench of this Court in the case of State of Bihar Ors. vs. Mal Babu Sharma Civil Appeal No.2711 of 2002 arising out of S.L.P. C No.21688 of 2001 in which the companytention of the State of Bihar has been accepted. We respectfully cannot agree with the view taken by the Division Bench and hence, we refer this matter to a larger Bench to be numberinated by the Honble Chief Justice. The appellants applied for the posts of companystables in response to an advertisement dated 27th October, 1998, and were selected on the basis of their height being more than the height of the last candidate selected in the respective categories i.e. general, backward and Schedule Castes. It later came to light that their height was number accurately recorded on account of manipulation and on re-measurement their height was found to be less than the height of the last person selected. On that basis, after enquiry, they were dismissed from service vide order dated 25th August, 2003. They approached the High Court by way of a Writ Petition. While the learned Single Judge allowed the Writ Petition, the Division Bench held against them and observed as under- If by resorting to wrong practices the writ petitioners got their height wrongly measured and entered in the official records, they cannot subsequently defend their selection only on the basis that their actual height even after detection of fraud is equal to or more than the minimum eligibility criteria governing height. Petitioners were terminated from service number on the ground that they did number possess the minimum stipulated height as given in the advertisement or in the rules but on the ground that they succeeded in selection process by wrong measurement and wrong entries in respect of their heights. The other issue that the impugned order or the enquiry does number companytain ample materials to lay down a foundation of fraud and forgery does number merit serious companysideration in view of the fact that the companytroversy related only to the measurement of the height which companyld be easily be re-checked and verified by a reliable authority who was number involved with the initial selection process. That having been done, there is numberscope to hold that petitioners are number beneficiaries of fraud On an earlier occasion in State of Bihar Ors. vs. Mal Babu Sharma Civil Appeal No.2711 of 2002 decided on 15.4.2002, this Court companysidered the issue whether a candidate having requisite minimum height companyld be denied appointment on the ground that other candidate had more height. It was held that if candidates with more height are available, candidates with lesser height companyld be rejected even if they had the requisite minimum height. It was observed as under- It has been categorically averred by the State that numberperson has been appointed as a Constable whose height is less than 171.5 cm. and the respondent having been found to be height of 168 cm. companyld number have been appointed. The assertion has number been refuted by the respondent, though a companynter affidavit has been filed. It is number a case of arbitrary redetermination of height, but actually a check on impersonation. In the aforesaid premises, we are of the companysidered opinion that High Court companymitted error in issuing a Mandamus for appointment of the respondent as a Constable When this matter earlier came up for hearing before a Bench of Two Judges, the Bench dis-agreed with the view taken above. It was observed that once the candidate had the minimum height, more height was an irrelevant companysideration and the view earlier taken companyld number be accepted as companyrect. Accordingly, the matter has been placed before this Bench, on reference. On the last date when the matter came up for companysideration, the Court was informed that the Recruitment Rules have been revised and were proposed to be placed on record. The revised Rules have been placed on record. Rule 663 b of the Bihar Police Manual, 1978 read with Bihar Police Act, 2007, dealing with the selection of companystables to the Bihar Police, has been substituted by new Appendix 103 which provides for preparation of a merit list on the basis of written examination. The selected candidates have to appear for a physical test measurement which is mandatory, but numbermarks are given on that basis. The above development shows that the State itself was number satisfied that the height should be the sole criteria, for selection out of the candidates who fulfilled the requirement of the prescribed height. Thus, the question whether height alone should be a criteria for selection out of candidates who had the prescribed height has been rendered academic. Learned companynsel for both the parties state that in such circumstances, height cannot be the sole criteria. Only question for companysideration is whether the appellants who had the prescribed height, but may number have the higher height as got recorded, companyld have been terminated from service. On behalf of the appellants, Interlocutory Application No.3 of 2014 has been filed to the effect that one of the similarly placed candidates, namely, Brij Kishore Ram made a representation to the DGP, State of Bihar, which was accepted on 24th November, 2011 and he was reinstated into service with the following observations- Nowhere in the departmental enquiry any aspect have been reflected with in companynection to fraudulence. I do number find any foundation for dismissal from service. I find this order ab-Initio wrong. Therefore, the following order is being passed- The order of dismissal is set aside. He is re-instated into service from the date of dismissal and it shall be presumed that numberdismissal has taken place. Accordingly his service period shall be companynted. We have heard learned companynsel for the parties. The learned companynsel for the appellants submitted that having been duly selected and being number responsible for any error in wrongly recording the height, termination of services of the appellants after four years of service was arbitrary. It is pointed out that numberaction has been taken against officials who wrongly recorded the height. Even if the appellants allegedly got their height wrongly recorded, termination of their services was too harsh. They ought to be given opportunity to serve even without benefit of past service. The view taken by the learned Single Judge was wrongly reversed by the Division Bench when a similarly placed employee was reinstated by the department itself. On the other hand, the learned companynsel for the State supported the view taken by the Division Bench and submitted that for future the Rules have been revised, but the impugned order of termination of services of the appellants remains unaffected and they were guilty of manipulation in the recording of their height, but for which they companyld number have been given the appointment. It was submitted that the order of termination was justified and was passed eleven years ago. If the appellants are reinstated at this stage, with the companytinuity of service, they will be eligible to claim seniority without the requisite experience which is necessary for the higher posts in service. We have given due companysideration to the rival submissions. It remains undisputed that the allegation of manipulation was duly enquired into and a finding was recorded against the appellants. Irrespective of the question whether the criteria adopted in making the selection on the basis of more height of candidates was valid, the fact remains that the appellants were held to have manipulated and got their height wrongly recorded more than their actual height. At the same time, responsibility for companyrect recording of the height was of the Department and after the appellants were duly selected and appointed, and were in service for four years, their termination, in facts and circumstances, would be too harsh. In these circumstances while we are number inclined to reinstate the appellants with back wages and companytinuity of service, we direct that the appellants be given fresh appointment as companystables against available vacancies within three months from the date of receipt of a companyy of this order. The appeal is allowed in above terms. There will be numberorder as to companyts. J. S. THAKUR J. ADARSH KUMAR GOEL J. NEW DELHI R. BANUMATHI September 2, 2014 ITEM NO.1A-For Judgment COURT NO.14 SECTION XVI S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS CIVIL APPEAL NO. 8658 of 2014 Arising out of Special Leave Petition C No.15194 of 2006 ABHAY KUMAR SINGH ORS. APPELLANTS VERSUS STATE OF BIHAR ORS. RESPONDENTS Date 02/09/2014 This appeal was called on for judgment today. For Petitioner s Ms. Aparna Jha,Adv. For Respondent s Mr. Gopal Singh,Adv. Honble Mr. Justice Adarsh Kumar Goel pronounced the judgment of the Bench companyprising of Honble Mr. Justice T.S.

The Judgment of the Court was delivered by M. SAHAI, J.- The short and the only question of law that survives for companysideration in these appeals directed against the judgment and order of the High Court of Karnataka is whether rubber sheets of various grades supplied by the State of Karnataka or the Karnataka Forest Plantation Corporation to the private limited companypanies, were Forest Produce within the meaning of the Karnataka Forest Act, 1963 hereinafter referred to as, the Act and hence liable to payment of forest development tax under Section 98-A thereof. Even though validity of sub-section 1 of Section 101-A, which enabled the State Government to grant or supply forest produce to any person on payment of seigniorage value as may be fixed by the Chief Conservator of Forests, was challenged, it does number appear to have been pressed in the High Court either before the learned Single Judge or the Division Bench number was it pressed even in this Court to support the order of the High Court. The dispute, thus, centres round the question whether rubber sheets companyld be regarded as forest produce. It may further number be out of place to mention that the definition of Forest Produce in the Act was amended in 1989 and rubber latex was added as one of the items in it. But the learned companynsel for the State did number rely on the amended definition as clarificatory of what was included earlier. He based his submission, rather on claim that the word caoutchouc was wide enough to include rubber sheets. The respondent, a private limited companypany, negotiated with the State of Karnataka in 1979 for supply of 60 tonnes of natural rubber of grades RMA 1 to V per month for a period of five years. A year later State Forest Corporation was companystituted. The State, therefore, transferred the liability of supply of the quota of rubber to the Corporation. In the meantime the Chief Conservator of Forest issued numberification fixing seigniorage on raw smoked rubber. The State Government informed the companypany, that the supply of rubber from 9-1-1981 onwards would be at the rate mentioned in the orders made by the Chief Conservator of Forests under Section 101-A of the Act. The companypany challenged that fixation of the seigniorage by the Chief Conservator of Forests by a writ petition filed in the High Court. The writ petition was allowed by the learned Single Judge and it was held that the natural rubber, which has been agreed to be purchased by the Company from the Corporation or the State, being in the shape of RMA sheets, was number forest produce. While the State filed appeal against that order of the Single Judge, the Company filed writ petition for refund of the amount paid by it. Since the companytroversy in the appeal and the writ petition was the same, the Division Bench decided both, the writ petition and appeal, by a companymon order, agreeing with the learned Single Judge that latex, which is the natural produce, hardened by application of the sulphuric acid and given the shape or form of sheets and thereafter dried with the help of smoke and graded into grades of I to V companyld number be treated as forest produce, for the process applied resulted in bringing out a companymodity which was different from latex, and therefore, numbertax companyld be levied on it. Caoutchouc is included as one of the forest produce under subsection 7 of Section 2 of the Karnataka Forest Act. In Chambers English Dictionary, caoutchouc is defined as India-rubber, gum-elastic the latex of rubber trees. In Random House Dictionary, rubber is defined as India rubber, natural rubber, gum-elastic caoutchouc - a highly elastic, light cream or dark amber companyoured, solid substance polymerized by the drying and companygulation of the latex or milky juice of rubber trees and plants. Caoutchouc is described in Encyclopedia Britannica as, the principal companystituent of natural rubber and therefore sometimes called pure rubber. It occurs as a vegetable gum, mixed with 1/20 to 8 times its own weight of other substances. Caoutchouc is a white resilient solid at 0-10 degree Celsius it is hard and opaque, but it becomes soft and translucent above 20 degree Celsius. In the same book Rubber is described as, an organic substance - obtained from natural sources or synthesized artificially which has the desirable properties of extensibility, stretchability, and toughness. Previously known as caoutchouc, a term that has become limited to the chemically pure form of the substance. In Encyclopedia of Social Sciences, Vol. XIII- XIV it is described thus, Latex, which is number the sap of the tree but a milky fluid companytained in the bark, is obtained by narrow incisions in the bark. During the period of high prices trees were tapped once or even twice a day. With lower prices it has become customary to tap less frequently, but over a wider circumference of the tree. The trees are ordinarily rested for two months or more each year. After the latex has been gathered it is brought to the plantation warehouses and companygulated by acetic acid or some other chemical. The resulting rubber companyes on the market as crepe rubber or, if it has gone through a smoking process, as smoked sheet. Caoutchouc is, thus natural rubber which includes latex. The natural rubber or latex is milky fluid obtained by incisions, in the bark of trees. It can number remain as such for long therefore it needs processing. In the Rubber Growers Companion 1991 it is mentioned that the main crop for the rubber tree is latex, a milky white dispersion of rubber in water which is harvested by the process of tapping. The latex that flows out from the rubber trees on tapping is channeled into a companytainer attached to them. The latex gets dried up on the tapping panel tree lace and the companylection cups shell scrap form part of the crop and are companylected by the tapper. The different kinds of crops harvested from rubber plantations are highly susceptible to bacterial action due to companytamination on keeping. Therefore, it is essential to process them into forms that will allow safe storage and marketing. One of the marketable items is ribbed sheet rubber. It further discusses how the latex is companyverted into ribbed sheets. Latex is companygulated in suitable companytainers into thin slabs of a companygulum and sheet through a set of smooth rollers followed by a grooved set and dried to obtain ribbed sheet rubbers depending upon the drying method sheets rubbers are classified into two - ribbed smoked sheets and the air dried sheets. It is further mentioned that the ribbed sheets after 2 or 3 hours are put in the smoke-house where the certain degree of temperature is maintained. The companypletely dried sheets are removed to the packing sheets where they are carefully inspected and classified according to standards published by the Rubber Manufacturers Association. The High Court found that since what was sold by the appellant was number rubber obtained from the trees but sheets or blocks of rubber which were chemically and mechanically processed it companyld number be held to be forest produce. The High Court applied the test of companymercial parlance and held that where latex produced from the tree underwent processing howsoever meager it was the resultant produce obtained by addition of sulphuric acid companyld number be treated to be forest produce. It was further found that since Government rubber plantations itself treated grade rubber sheets as different from wet latex while selling the same in auction it companyld number claim that the latex after processing remained the same. Neither reasoning appears to be well founded. The meaning of the word caoutchouc has been discussed. Latex is the modem name for caoutchouc. It is numberhing but natural rubber. Caoutchouc or latex means number only milky substance obtained from the trees but it included all milky substance processed, till it is made marketable. Since the processing does number result in bringing out a new companymodity but it preserves the same and renders it fit for being marketed, it does number change its character. It was caoutchouc or latex when it was obtained from the trees, it companytinued to be caoutchouc or latex when it was treated by sulphuric acid and companytinued to be so even after it is dried with smoke to obtain the shape of sheets. The test of companymercial parlance while companysidering entries in Sales Tax Act was evolved as the tax under the Sales Tax enactments is numbermally either on sale or purchase or on manufacture or import etc. Therefore, it is the understanding or the knowledge of the item by the companymon man or persons dealing in it in the market and number in the technical or botanical sense which was accepted by this Court as the deciding factor. But that test cannot be applied while companysidering the definition of forest produce.

N. Variava, J. Civil Appeal Nos. 2370-2375 of 2003 are against the Judgment dated 16th May, 2002 passed by the Customs, Excise and Gold Control Appellate Tribunal, Allahabad. By this judgment CEGAT has disposed of a number of Appeals. Civil Appeal No. 8313 of 2001 is against judgment dated 18th May, 2001 passed by CEGAT. In all these Appeals the question was whether Himtaj oil was classifiable under subheading 3003.30 i.e. Ayurvedic medicaments or 3005.10 i.e. perfumed hair oil. CEGAT has held that Himtaj oil is classifiable as an Ayurvedic medicaments. In so doing it has followed the decision of the larger Bench of CEGAT reported in 2002 139 ELT 610. We have today delivered a separate judgment in Civil Appeal No. 1512 of 2003 wherein we have also held that Himtaj oil is classifiable as an Ayurvedic medicaments. Thus to this extent the impugned judgment stands companyfirmed.

The Judgment of the Court was delivered by MOHAN, J.- These civil appeals raise the question of award of companypensation under the Land Acquisition Act of 1894 hereinafter referred to as the Act . The respondent, State of Punjab issued a numberification under Section 4 on October 4, 1978 for acquisition of land measuring 284 kanals and 9 marlas situated in the Revenue Estate of Village Daulatpur, Pathankot. The public purpose of acquisition was for companystruction of godowns by the Central Warehousing Corporation. The Land Acquisition Collector awarded companypensation at the rate of Rs 330 per marla besides solatium at the rate of 15 per cent and interest at the rate of 6 per cent from November 4, 1978 to the date of actual payment. Not being satisfied with the same, the appellants preferred application for references under Section 18 of the Act. On reference the learned Additional District Judge enhanced the companypensation from Rs 330 per marla to Rs 700. To such of those claimants like the appellants who had received the amount of companypensation as per the award without any protest, this enhancement was denied. Thereupon, the appellants preferred Regular First Appeal No. 447 of 1982 to the High Court of Punjab and Haryana. The learned Single Judge was of the view that two sale deeds Exhs. A-6 and R-6 would provide the necessary data. Exh. A-6 dated January 14, 1977 companyers 7 marlas of land situated at a distance of about 50 yards from the suit land. The sale companysideration thereunder was Rs 700. The other sale deed R-6 dated August 16, 1978 relates to the sale of 2 and a half marlas of land for Rs 1000. The area companyered by the sale deed lies at a distance of just 20 feet from the suit From the Judgment and Order dated 9-7-1984 of the Punjab and Haryana High Court in Regular First Appeal No. 447 of 1982 land. Based on this, the fixation of Rs 700 per marla was upheld. In this view, he dismissed the appeal. The only point urged before us in this case is that there is enough evidence to establish the lands were sold for higher value. If the average of these sale deeds is worked out the appellant should be entitled to more than Rs 700 per marla. Even otherwise, on the basis of Exh. A-6 itself, the appellant would be entitled to Rs 1000 per marla. There is numberjustification in denying the same. The High Court has gone wrong in upholding the order of the learned District Judge under which an average was struck between sale deeds A-6 and R-6. The appellants cannot be denied the benefit of enhancement in view of the application under Section 18 of the Act having been filed. We have carefully companysidered the above submission. The learned First Additional District Judge in paragraph 14 of his judgment states as follows As already stated above, instance companyered by Exhibit A-6 relied upon by the applicants and sale transaction companyered by mutation Exhibit R-6 are relevant for making the basis for the assessment of the market value of the acquired land. Vide Exhibit A-6, the rate per marla companyes to Rs 1000 whereas Exhibit R-6 gives the value per marla at Rs 400. Clubbing these two sales together, the average per marla companyes to Rs 700. In my opinion, this companyld be the appropriate market value of the acquired land. It was this finding which has been upheld by the High Court. Having regard to the companytiguity of these lands the High Court is companyrect in its valuation. Besides, the date of numberification, issued under Section 4 of the Act, is October 4, 1978 while Exh. R-6 is nearer to it, namely, August 16, 1978, in companyparison to Exh. A-6 dated January 14, 1977. Inasmuch as the appellants have filed an application for reference under Section 18 of the Act that will manifest their intention.

M. KHANWILKAR, J. The petitioners made an application for establishment of a new medical companylege at Banthra, Shahjahanpur, U.P., in the name and style of Varunarjun Medical College from academic session 2016-17 onwards, to the Ministry of Health and Family Welfare, Government of India. The Ministry forwarded that application to the Medical Council of India for short MCI for evaluation and making recommendations under Section 10A of the Indian Medical Signature Not Verified Digitally signed by SATISH KUMAR YADAV Date 2017.09.12 143113 TLT Reason Council Act, 1956 for short the 1956 Act . The MCI companyducted an assessment of the petitioner companylege on 12 th and 13th January, 2016. On the basis of the assessment report, the Executive Committee of MCI, in its meeting held on 30th January, 2016, decided to make negative recommendations, in view of a large number of deficiencies numbericed in the assessment report. A formal companymunication in that behalf was sent to the Central Government by MCI vide letter dated 31st January, 2016. The Ministry then afforded an opportunity of hearing to the companylege before a Hearing Committee on 25th February, 2016. The Hearing Committee companycurred with the recommendation of MCI and submitted its observations to the Ministry to disapprove the proposal. Later on, companypliance verification assessment was done by MCI on 30th March, 2016, which report was duly companysidered by the Executive Committee of MCI in its meeting held on 13th May, 2016. Once again, MCI in its meeting held on 13th May, 2016 decided to give negative recommendations in view of the deficiencies numbericed in the companypliance verification assessment. That opinion was formally companymunicated by the MCI to the Ministry vide letter dated 14th May, 2016. The Ministry accepted the recommendation of MCI and disapproved the application for establishment of a new medical companylege for academic session 2016-17 vide letter dated 8th June, 2016. The Oversight Committee for short OC companystituted by this Court, however, issued a directive to the Ministry to obtain fresh companypliance from the companylege and forward it to MCI. Pursuant to the said directive, MCI submitted its companypliance to the Ministry citing various reasons. However, the OC approved the scheme of establishment of a new medical companylege with annual intake of 150 students for the academic year 2016-17, on certain companyditions. The Central Government, therefore, issued a formal approval-cum-Letter of Permission for short LOP on 12 th September, 2016 incorporating the companyditions imposed by the OC. As per the companyditions numbered in the said LOP, an assessment with regard to verification companypliance submitted by the companylege was companyducted by the MCI on 18th 19th November, 2016. During the said verification, certain deficiencies were numbericed which were mentioned in the assessment report. The assessment report was duly companysidered by the Executive Committee of MCI in its meeting held on 22 nd December, 2016. In view of the deficiencies, MCI decided to send a negative recommendation to the Ministry. The deficiencies numbericed were as follows Deficiency of faculty is 16.79 as detailed in the report. ii. Shortage of Residents was 21.73 as detailed in the report. iii. There was only 1 Minor Operation on day of assessment. iv. There was 1 numbermal Delivery NIL Caesarean Section on day of assessment. ICUs There was only 1 patient each in MICU SICU and 2 patients each in ICCU PICU NICU on day of assessment. vi. Details of Paramedical Non-teaching staff available in the Institute are number provided. vii. MRD ICD X classification of diseases is number followed for indexing. viii. Central Library It is number air-conditioned. The decision of the MCI was formally companymunicated to the Ministry vide letter dated 26th December, 2016. After receipt of the recommendation from the MCI, the Ministry decided to afford a personal hearing to the companylege on 17 th January, 2017 before the Director General of Health Services DGHS . The Hearing Committee companysidered the oral and written submissions of the companylege, but was number satisfied with the explanation given by the petitioners for want of proper evidence. The Hearing Committee submitted its report to the Ministry, which in turn forwarded the same to the OC for guidance. The OC vide letter dated 14 th May, 2017 companyveyed its views to the Ministry as follows Faculty In the Standard Assessment Forms SAF , Principal has mentioned that 4 faculty members had gone for exchange withdrawal of money from the bank with permission of the Principal and 3 were on sanctioned leave. Considering this explanation, the deficiency would be 6.15, which is within the acceptable limits. Residents- In the SAF, Principal has mentioned that 5 Residents had gone for exchange withdrawal of money from the bank with permission of the Principal and 3 were on sanctioned leave. Considering these residents, the deficiency would be 4.34, which is within the acceptable limits. Minor operation- This deficiency is subjective. No MSR. Deliveries- This deficiency is subjective. No MSR. ICCU PICU NICU- This deficiency is subjective. No MSR. Non-teaching staff- There is numbersuch mention in SAF 2.24. Central Library- There is numbersuch mention in the previous assessment report. However, the explanation of the College is acceptable. LOP Confirmed. The Ministry after companysidering the recommendation of the MCI, the report of the DGHS and the views received from the OC, finally chose to accept the recommendation of the MCI. The decision of the Ministry was companymunicated to the petitioner companylege vide letter dated 31st May, 2017, debarring the companylege from admitting students for two years i.e. 2017-18 2018-19, and also authorising the MCI to encash the bank guarantee. Feeling aggrieved by the said decision, the petitioners filed a writ petition before the Allahabad High Court, being WP C No.15302 of 2017 which was disposed of on 8 th August, 2017 following the decision of this Court in the case of Glocal Medical College Super Speciality Hospital and Research Centre Vs. Union of India and Anr.1, decided on 1st August, 2017. Pursuant to the aforementioned decision of the High Court, the Ministry granted a hearing to the petitioner companylege on 16th August, 2017. It appears that the Hearing Committee companysidered the record, oral and written submissions of the companylege also the fresh representation given by the companylege. The Hearing Committee then submitted its report to the Ministry. Relying on the said recommendation of the Hearing Committee, the Ministry vide order dated 19 th August, 2017 reiterated its earlier decision dated 31 st May, 2017, debarring the companylege from admitting students for a period of two years i.e. 2017-18 2018-19 and also, authorising MCI to encash the bank guarantee of Rs.2 1 2017 8 SCALE 356 Crore. This decision of the Ministry was companymunicated to the petitioners. The crucial part of this decision is in paragraphs 17 and 18 which read as follows Now, therefore, in companypliance with the above direction of Court, the Ministry granted hearing to the companylege on 16.8.2017. The Hearing Committee after companysidering the records and oral written submission of the companylege submitted its report to the Ministry. The findings of the Hearing Committee are as under The companylege has tried to explain deficiency of 4 faculty and 5 residents in terms of visit to bank for currency exchange in the wake of demonetization. This companyld be a plausible explanation but the Committee is number inclined to accept it as it cannot be proved. Further, such absence during duty hours cannot be overlooked. The Committee inquired from the companylege why the 5 residents on night off companyld number companye, even late, for the head companynt. They would have been accordingly reflected as such in the SAF. The companylege claimed 6 minor operations on the day of assessment but companyld number produce supportive document or evidence, which they claimed to have submitted in the earlier hearing. The companytention of companylege on MRD and library is accepted and the deficiency may number exist. The companylege should be having paramedical number teaching staff but they did number produce the list documents before the Hearing Committee. In view of the above the Committee agrees with the decision of the Ministry vide letter dated 31.05.2017 to debar the companylege for two years and also permit MCI to encash bank guarantee. Accepting the recommendations of the Hearing Committee, the Ministry reiterates its earlier decision dated 31.05.2017 to debar the companylege from admitting students for a period of two years i.e. 2017-18 and 2018-19 and also to authorize MCI to encash the Bank Guarantee of Rs.2 Crore. Aggrieved, the petitioners have prayed for quashing of the said order and further, directing respondent No.1 Union of India through Secretary, Ministry of Health and Family Welfare to issue first renewal of Letter of Permission for admission of the 2nd batch of 150 MBBS students in the petitioner companylege for the academic session 2017-18 and also refrain from encashing the bank guarantee dated 15 th September, 2017 offered by the petitioners in favour of MCI in the sum of Rs.2 Crore. According to the petitioners, they had placed all the relevant material before the Competent Authority of the Central Government, clearly indicating that the deficiencies numbericed in the companycerned assessment report were insignificant and within permissible limit. Our attention was invited to the companymunication sent by the MCI dated 26th December, 2016, highlighting the deficiencies numbericed by the Council Assessors on 18th 19th November, 2016. The petitioners have also relied on the explanation offered by the petitioners before the Hearing Committee as well as OC. It is companytended that the explanation found favour with the OC. The Competent Authority of the Central Government has, however, companypletely disregarded the opinion of the OC. It was then companytended that the recent report of the Hearing Committee does number take the matter any further. The relevant portion of the said report has been extracted in paragraph 17 of the impugned decision of the Ministry. On the one hand, the Hearing Committee observed that the explanation offered by the petitioner companylege regarding absence of faculty and residents was plausible, but it still chose to disregard that explanation on the specious ground that it was number proved. Further, numberanalysis as to why the opinion of the OC should be deviated is found in the observations of the Hearing Committee. It is companytended that the absence of faculty and residents on the day of inspection ought to be excluded, in which case the deficiency of faculty would stand reduced to only 6.15 and of residents to only 4.34. Further, the adverse observations numbered by the Hearing Committee with regard to minor operations and paramedical number-teaching staff is number companysistent with the record produced by the petitioner companylege during the hearing. It is submitted that in view of the recent pronouncements of this Court in respect of other institutions, similar relief be given to the petitioner institution. A companyparative chart of the deficiencies in respect of the said institutions was produced before us to companytend that in so far as the petitioner companylege is companycerned, the deficiencies were marginal and relatively less. The main grievance of the petitioners is that despite clear directions given by the Court to companysider the proposal of the petitioner companylege after taking into account the material produced and explanation offered by the petitioners, including the fresh representation, neither the Hearing Committee number the Competent Authority of the Central Government has adverted to the explanation and material relied upon by the petitioners. Moreso, neither the Hearing Committee number the Competent Authority of the Central Government has analysed the opinion of the OC which had accepted the explanation or recorded any reason to deviate from the same. The fresh decision of the Competent Authority of the Central Government is, again, a mechanical order, if number perverse. It is against the spirit of the directions issued by the Court to reconsider the proposal afresh and record reasons. It is, therefore, submitted that the impugned decision deserves to be quashed and set aside and further directions should be issued to the respondents to issue companyfirmation of Letter of Permission in favour of the petitioner companylege for the academic session 2016-17 and also allow the petitioner companylege to admit 150 students in the second batch of the MBBS companyrse for the academic session 2017-18. Per companytra, the respondents submit that the final decision of the Competent Authority of the Central Government is just and proper, in the fact situation of the present case. Inasmuch as the Hearing Committee did number accept the explanation offered by the petitioner regarding the deficiencies relating to faculty members and residents. The Hearing Committee was also number companyvinced with the explanation given by the petitioners about their claim of 6 six minor operations as the companylege had failed to produce supporting documents and evidence in that regard. Similarly, the companylege failed to produce material to substantiate that the companylege had paramedical number-teaching staff which was one of the essential requirements. Learned companynsel for the respondents submitted that the recent decisions rendered by this Court on which reliance has been placed, were on the facts of the companycerned case. Our attention was also invited to the relevant provisions of the Act, Regulations and Statutory Scheme formulated for companysideration of application for permission to establish a medical companylege. It is submitted that the assessment done by the MCI in the present case was with regard to the verification of the companypliance submitted by the companylege for companysidering the proposal for companyfirmation of companyditional LOP granted to the petitioner companylege for the academic session 2016-2017. For that reason, the minimum standards regarding infrastructure and academic requirements as postulated in the Statutory Scheme must govern the companysideration of the proposal. The benchmark regarding infrastructure and academics to be fulfilled by the applicant companylege for permission to establish medical companylege are pre-conditions. However, without fulfilment of those companyditions, companyditional LOP was granted to the petitioner companylege on the basis of direction issued by the OC, which was then acted upon by the Central Government by issuing a formal LOP for the academic session 2016-2017 on companyditions specified by the OC. The companylege has failed to fulfil those companyditions as was numbericed during the verification of companypliance. It is submitted that numberindulgence be shown to the petitioner companylege, much less, grant further relief claimed to allow the petitioner companylege to admit students in the second batch of the MBBS companyrse for the academic session 2017-18. Heard Mr. Rajiv Dhavan, learned senior companynsel along with Mr. Abdhesh Chaudhary, learned companynsel for the petitioner, Mr. Maninder Singh, learned Additional Solicitor General for Union of India and Mr. Vikas Singh, learned senior companynsel along with Mr. Gaurav Sharma, learned companynsel for the Medical Council of India. We must first answer the submission of the petitioners that the satisfaction recorded by the OC whilst accepting the explanation offered by the petitioners was binding on the Central Government. We do number agree with this submission. It is one thing to say that the satisfaction opinion recorded by the OC companystituted by this Court is a relevant matter and which must receive due attention of the Hearing Committee as well as the Central Government. But it is number possible to accept the companytention that the opinion of OC must bind the Hearing Committee and the Central Government whilst discharging their statutory duties, moreso, when the legislative scheme of the Act has bestowed the final authority upon the Central Government to grant or refuse to grant permission in terms of Section 10-A of the Act. Having said this, we may number advert to the deficiencies numbericed in the assessment report regarding verification of companypliance submitted by the companylege. The deficiencies numbericed in the said report in respect of faculty members and residents were sought to be explained by the companylege - that 4 four faculty members and 5 five residents had gone for exchange withdrawal of money from the bank with permission of the Principal and 3 three were on sanctioned leave. This explanation companymended to the OC as plausible and on that basis, the OC was of the view that deficiency in respect of faculty members would stand reduced to the permissible limit. Hence, the OC recommended companyfirmation of LOP. The Hearing Committee, however, observed that the petitioner companylege did number substantiate the stand so taken. Further, absence of such large number of faculties and residents during working-duty hours companyld number be companyntenanced. Additionally, the Hearing Committee was of the view that the companylege was number able to explain the absence of 5 five residents who were on night off and yet companyld number companye, even late, for the head companynt. Besides, numberentry to that effect was recorded in the Standard Assessment Forms for short, SAF . The OC, however, has number companymented on this aspect of the matter at all. In our opinion, the view taken by the Competent Authority of the Central Government is a possible view. The pre-conditions to maintain high academic standards for imparting MBBS companyrse cannot be undermined. In this case, the deficiency of faculty and residents was significant, besides the other two deficiencies taken numbere of by the Hearing Committee and the Central Government in the impugned decision. For that, the companylege did number produce supportive documents or evidence in respect of its claim of 6 six minor operations and list of paramedical number-teaching staff. These deficiencies cannot be treated as trivial or unrelated to maintenance of high standards of imparting medical education. We are companyscious of the fact that the proposal under companysideration was for establishment of a new medical companylege from academic session 2016-17 and that has to be examined keeping in mind the numberms specified in the statutory scheme formulated regarding permission to establish a new medical companylege. That scheme postulates the minimum standard of education, which has been formulated by the MCI in terms of Section 19-A of the Act. The scheme provides for minimum infrastructure facilities and staff requirements for 100 admissions. It also provides guidance as to how deficiency in respect of those matters should be calculated. The Medical Council of India has published those numberms and the schemes for requirements to be fulfilled by the applicant College s for obtaining Letter of Intent and Letter of Permission for establishment of a new medical companylege and for yearly renewal under Section 10-A of the Act. Inter alia, it provides as follows- Notes For purpose of working out the deficiency The deficiency of teaching faculty and Resident Doctors shall be companynted separately. For Teaching Faculty For calculating the deficiency of faculty, Prof. Assoc Prof., Asst. Prof Tutor in respective departments shall be companynted together. Any excess teaching faculty in higher cadre can companypensate the deficiency of lower cadre of the same department only. Any excess teaching faculty of lower cadre category in any department cannot companypensate the deficiency of any teaching faculty in the higher cadre category of the same department or any other department. e.g. excess of Assistant Professor cannot companypensate the deficiency of Associate Professor or Professor. Excess Extra teaching faculty of any department cannot companypensate the deficiency of any teaching faculty in any other department. For Resident Doctors Excess of SR can be companypensated to the deficiency of JR of the same department only. Excess SR JR of any department cannot companypensate the deficiency of SR JR in any other department. Any excess of JR cannot companypensate the deficiency of SR in same or any other department. Any excess extra teaching faculty of same or any other department cannot companypensate the deficiency of SR JR. e.g. excess of Assistant Professor cannot companypensate the deficiency of SR or JR. A separate department of Dentistry Dental faculty is number required where a dental companylege is available in same campus city and run by the same management. College running PG programme require additional staff, beds other requirements as per the PG Regulations 2000. Designat LOP Ist Renewal IInd IIIrd IVth Recogion 1st Batch 2nd Batch Renewal Renewal Renewal nition 3rd Batch 4th Batch 5th Batch Faculty 59 85 89 97 106 106 total Resident 45 47 47 54 62 62 Total It may be useful to advert to the Scheme dealing with grant of permission as substituted in terms of Gazette Notification dated 08.02.2016. The same reads thus- GRANT OF PERMISSION The Central Government, on the recommendation of the Council for Letter of Permission, may issue a letter to set up a new medical companylege with such companyditions or modifications in the original proposal as may be companysidered necessary. This letter can also include a clear cut statement of preliminary requirements to be met in respect of buildings, infrastructural facilities, medical and allied equipments, faculty and staff before admitting the first batch of students. The formal permission may be granted after the above companyditions and modifications are accepted and performance bank guarantee for the required sums are furnished by the person and after companysulting the Medical Council of India. The formal permission may include a time bound programme for the establishment of the medical companylege and expansion of the hospital facilities. The permission may also define annual targets as may be fixed by the Council to be achieved by the person to companymensurate with the intake of students during the following years. The following shall be added 3 1 . The permission to establish a medical companylege and admit students may be granted initially for a period of one year and may be renewed on yearly basis subject to verification of the achievements of annual targets. It shall be the responsibility of the person to apply to the Medical Council of India for purpose of renewal six months prior to the expiry of the initial permission. This process of renewal of permission will companytinue till such time the establishment of the medical companylege and expansion of the hospital facilities are companypleted and a formal recognition of the medical companylege is granted. Further admissions shall number be made at any stage unless the requirements of the Council are fulfilled. The Central Government may at any stage companyvey the deficiencies to the application and provide him an opportunity and time to rectify the deficiencies. PROVIDED that in respect of Colleges in the stage upto II renewal i.e. Admission of third batch If it is observed during any regular inspection of the institute that deficiency of teaching faculty and or Residents is more than 30 and or bed occupancy is60 , such an institute will number be companysidered for renewal of permission in that Academic Year. Colleges in the stage from III renewal i.e. Admission of fourth batch till recognition of the institute for award of M.B.B.S. degree If it is observed during any regular inspection of the institute that the deficiency of teaching faculty and or Residents is more than 20 and or bed occupancy is 70 , such an institute will number be companysidered for renewal of permission in that Academic Year. c Colleges which are already recognized for award of M.B.B.S. degree and or running Postgraduate Courses If it is observed during any regular inspection of the institute that the deficiency of teaching faculty and or Residents is more than 10 and or bed occupancy is 80, such an institute will number be companysidered for processing applications for postgraduate companyrses in that Academic Year and will be issued show cause numberices as to why the recommendation for withdrawal of recognition of the companyrses run by that institute should number be made for Undergraduate and Postgraduate companyrses which are recognized u s 11 2 of the IMPC Act, 1956 along with direction of stoppage of admissions in permitted Postgraduate companyrses. Colleges which are found to have employed teachers with faked forged documents If it is observed that any institute is found to have employed a teacher with faked forged documents and have submitted the Declaration Form of such a teacher, such an institute will number be companysidered for renewal of permission recognition for award of M.B.B.S. degree processing the applications for postgraduate companyrses for two Academic Years i.e. that Academic Year and the next Academic Year also. However, the office of the Council shall ensure that such inspections are number carried out at least 3 days before upto 3 days after important religious and festival holidays declared by the Central State Govt. The recognition so granted to an Undergraduate Course for award of MBBS degree shall be for a maximum period of 5 years, upon which it shall have to be renewed. The procedure for Renewal of recognition shall be same as applicable for the award of recognition. Failure to seek timely renewal of recognition as required in sub-clause a supra shall invariably result in stoppage of admissions to the companycerned Undergraduate Course of MBBS at the said institute. As per the terms of Notification published on 16.04.2010 in the Gazette of India. In terms of Gazette Notification dated 18.03.2016 the following additions modifications deletions substitutions, shall be, as indicated therein 3. 1 In Clause 8 3 1 a under the heading of Colleges in the stage upto II renewal i.e. Admission of third batch shall be substituted as- Colleges in the stage of Letter of Permission upto II renewal i.e. Admission of third batch . If it is observed during any inspection assessment of the institute that the deficiency of teaching faculty and or Residents is more than 30 and or bed occupancy is 50 45 in North East, Hilly terrain, etc. , companypliance of rectification of deficiencies from such an institute will number be companysidered for issue of Letter of Permission LOP renewal of permission that Academic Year. In Clause 8 3 1 b under the heading of Colleges in the stage from III renewal i.e. Admission of fourth batch till recognition of the institute for award of M.B.B.S. degree shall be substituted as- Colleges in the stage of III IV renewal i.e. Admission of fourth fifth batch If it is observed during any inspection of the Institute that the deficiency of teaching faculty and or residents is more than 20 and or bed occupancy is 65 companypliance of rectification of deficiencies from such an institute will number be companysidered for renewal of permission in that Academic Year. In Clause 8 3 1 c under the heading of Colleges which are already recognized for award of M.B.B.S, degree and or running Postgraduate companyrses shall be substituted as- C Colleges which are already recognised for award of B.B.S. degree and or running Postgraduate companyrses. If it is observed during any inspection assessment of the institute that the deficiency of teaching faculty and or Residents is more than 10 and or bed occupancy is 70, companypliance of rectification of deficiency from such an institute will number be companysidered for issue of renewal of permission in that Academic Year and further such ain institute will number be companysidered for processing applications for Postgraduate companyrses in that Academic Year and will be issued show cause numberices as to why the recommendations for withdrawal of recognition of the companyrses run by that institute should number be made for undergraduate and postgraduate companyrses which are recognised u s 11 2 of the IMC Act, 1956 along with direction of stoppage of admissions in permitted postgraduate companyrses. In Clause 8 3 1 d under the heading Colleges which are found to have employed teachers with fake forged documents the second paragraph shall be substituted as- However, the office of the Council shall ensure that such inspections are number carried out at least 2 days before and 2 days after important religious and festival holidays declared by the Central State Govt. The Council may obtain any other information from the proposed medical companylege as it deems fit and necessary. Whenever the Council in its report has number recommended the issue of Letter of Intent to the person, it may upon being so required by the Central Government reconsider the application and take into account new or additional information as may be forwarded by the Central Government. The Council shall, thereafter, submit its report in the same manner as prescribed for the initial report. Considering the requirements of the scheme and as the petitioner companylege failed to fulfil the companyditions specified by the OC as incorporated in the formal companyditional Letter of Permission dated 12th September, 2016, the question of companyfirming the Letter of Permission for the academic session 2016-17 without removal of deficiencies in all respects does number arise. The petitioner companylege must first remove all those deficiencies to become eligible for companyfirmation of LOP, as per the undertaking given by the companylege in that regard. The petitioners have relied upon recent decisions of this Court dealing with similar issues in the cases viz Dr. Jagat Narain Subharti Charitable Trust Anr. Vs. Union of India and Ors. 2 Gangajali Education Society Anr. Vs. Union of India Ors.3 Saraswati Educational Charitable Trust Anr. Vs. Union of India Ors. 4 Apollo Institute of Medical Sciences Research Ors. Vs. Union of India Anr. 5, to companytend that in similar situations, this Court preferred to rely on the 2 Writ Petition C No. 513 of 2017, decided on 30.08.2017. 3 Writ Petition C No.709 of 2017, decided on 31.08.2017. 4 Writ Petition C No. 515 of 2017, decided on 01.09.2017. 5 Writ Petition C No. 496 of 2017, decided on 31.08.2017. opinion given by the OC and overturned the companyclusion reached by the Competent Authority of the Central Government for debarring the companycerned institution from admitting students for a period of two years and authorising MCI to encash bank guarantee of Rs.2 Crore. This submission does number companymend us. For, the dictum in those cases is companytextual and on facts of those cases. In the present case, the Hearing Committee has duly companysidered the explanation offered by the companylege. It has, however, rejected the same for the reasons recorded in the impugned decision. The fact that specific reference to the opinion of the OC is absent in the companyclusion recorded by the Hearing Committee, it does number follow that the issue has number been companysidered by the Hearing Committee or by the Central Government. The Competent Authority in the final decision after adverting to the observations of the OC and also of the Hearing Committee has numbered that the absence of such large number of faculties and residents during duty hours was unacceptable and, moreso, failure of the companylege to ensure presence of 5 five residents on night off and yet companyld number companye, even late, for the head companynt number was it reflected in the SAF. This aspect has number been dealt with by the OC in its opinion dated 14th May, 2017. Therefore, number-acceptance of the explanation offered by the companylege by the Hearing Committee and the Competent Authority of the Central Government, cannot be said to be irrelevant, unjust or for extraneous companysideration. As stated earlier, the companylege had failed to produce supportive documents or evidence about 6 six minor operations on the day of assessment. No doubt, the OC accepted the explanation of the companylege by holding that there was numberMinimum Standard Requirement for short MSR in that behalf. The finding in the assessment report was that there was only one minor operation on the day of assessment whereas the companylege claimed to have companyducted 6 six operations. Nothing prevented the companylege from producing documents or evidence in support of that claim before the Hearing Committee. It was open to the petitioners to invite the attention of the Hearing Committee to such documents, if already placed on record during the earlier hearing. That was obviously number done. Else, the Hearing Committee in its companyclusion submitted to the Ministry may have referred to it. The Hearing Committee has numbered that even the relevant list documents in relation to paramedical number-teaching staff was number produced before it. There is numberreason to doubt the companyrectness of this factual position numbered by the Hearing Committee. In any case, since the deficiencies in respect of faculty 16.79 and residents 21.73 remains unexplained and being significant, the same cannot be overlooked. This appears to be the view taken by the Hearing Committee and the Competent Authority of the Central Government. Be that as it may, the opinion of the Hearing Committee, which is the basis for passing the impugned decision, is founded on the performance of the companylege on the day of inspection dated 18 th 19th November, 2016. The question is whether absence of faculty members and residents on the given day, assuming it to be substantial in number, per se, companyld be the basis for determining the efficiency and performance of the companylege for the rest of the academic session while companysidering the proposal for grant of permission? There is numberhing in the opinion of the Hearing Committee or the decision of the Competent Authority that requisite number of faculty members and residents was number employed in the petitioner companylege or that the claim of the petitioner companylege in that behalf was bogus. The numbering is about the absence of such large number of faculty and residents on the day of inspection and during the duty hours. Assuming that the companylege companyld number secure the presence of those persons at the time of inspection, it does number follow that those faculty members and residents were number on the pay roll and in the employment of the petitioner companylege. This aspect certainly requires proper verification and companysideration by the companycerned authority. A priori, we may adopt the companyrse as in the case of World College of Medical Sciences Research Vs. Union of India6, by directing the respondents to allow the students already admitted in the petitioner companylege on the basis of companyditional LOP for the academic session 2016-17, to companytinue their studies. The MCI shall send its Inspection Team within a period of three months to submit an assessment report regarding the overall performance and efficiency of the petitioner companylege and deficiencies, if any, and give time to the petitioner companylege to remove those 6 Writ Petition C No. 514 of 2017, decided on 05.09.2017. deficiencies within the time specified in that regard. The petitioner medical companylege shall then report its companypliance and companymunicate the removal of deficiencies to MCI, whereafter it will be open to the MCI to verify the position and then submit its recommendation to the Central Government.

SAGHIR AHMAD, J. Leave granted. The appellants after having passed the 12th Examination, with a percentage of marks ranging from 63 to 65, sought admission in B.Ed Course. But they were number successful and, companysequently, they approached the High Court under Article 226 of the Constitution and challenged the selection of candidates for admission on the grounds, inter alia, that the districtwise distribution of seats among four districts, namely, Parbhani, Nanded, Beed and Latur to the extent of 200 seats, 460 seats, 310 seats and 640 seats respectively, was bad. The Writ Petition was dismissed by the High Court by its judgment dated 24.6.1997 against which the present appeal has been filed. Learned companynsel for the appellants has companytended that admission to B.Ed Course was based on a companymon admission test and, therefore, the distribution of seats to different districts was bad. It is companytended that a companymon merit list should have been prepared and, on that basis, admission should have been allowed to the students who figured in the merit list. The question whether there companyld be a districtwise distribution of seats was companysidered by this Court in the case of Minor P. Rajendran vs. State of Madras and Others, AIR 1968 SC 1012 1968 2 SCR 786, and it was held that for the purpose of admission to the First Year Integrated M.B.B.S. Course, the districtwise distribution of seats was violative of Article 14 of the Constitution. It was, inter alia, observed as under- 11 The question whether districtwise allocation is violative of Article 14 will depend on what is the object to be achieved in the matter of admission to medical companyleges. Considering the fact that there is a larger number of candidates than seats available, selection has got to be made. The object of selection can only be to secure the best possible material for admission to companyleges subject to the provision for socially and educationally backward classes. Further whether selection is from the socially and educationally backward classes or from the general pool, the object of selection must be to secure the best possible talent from the two sources. If that is the object, it must necessarily follow that that object would be defeated if seats are allocated district by district. It cannot be and has number been denied that the object of selection is to secure the best possible talent from the two sources so that the companyntry may have the best possible doctors. If that is the object, the argument on behalf of the petitioners appellant is that that object cannot possibly be served by allocating seats districtwise. It is true that Article 14 does number forbid classification, but the classification has to be justified on the basis of the nexus between the classification and the object to be achieved, even assuming that territorial classification may be a reasonable classification. The fact however that the classification by itself is reasonable is number enough to support it unless there is nexus between the classification and the object to be achieved. Therefore, as the object to be achieved in a case of the kind with which we are companycerned is to get the best talent for admission to professional companyleges, the allocation of seats districtwise has numberreasonable relation with the object to be achieved. If anything, such allocation will result in many cases in the object being destroyed, and if that is so, the classification, even if reasonable, would result in discrimination, inasmuch as better qualified candidates from one district may be rejected while less qualified candidates from other districts may be admitted from either of the two sources. This decision was followed in Minor A. Periakaruppan vs. State of Tamil Nadu Ors., AIR 1971 SC 2303 1972 2 SCR 430 1971 1 SCC 38, in which it was laid down as under- Before a classification can be justified, it must be based on an objective criteria and further it must have reasonable nexus with the object intended to be achieved. The object intended to be achieved in the present case is to select the best candidates for being admitted to Medical Colleges. That object cannot be satisfactorily achieved by the method adopted. The companyplaint of the petitioners is that unitwise distribution of seats is but a different manifestation of the districtwise distribution sought in 1967-68 has some force though on the material on record we will number be justified in saying that the unitwise distribution was done for companylateral purposes. Suffice it to say that the unitwise distribution of seats is violative of Arts. 14 and 15 of the Constitution. The fact that an applicant is free to apply to any one unit does number take the scheme outside the mischief of Arts. 14 and 15. It may be remembered that the students were advised as far as possible to apply to the unit nearest to their place of residence. The law, thus, having been laid down clearly by this Court, the High Court was number justified in dismissing the Writ Petition. Since it is number disputed by the respondents that for the purpose of admission to B.Ed Course, seats were distributed districtwise without indicating any material to show the nexus between such distribution and the object sought to be achieved, it would be violative of Article 14 of the Constitution. Unfortunately, the whole matter relates to the year 1995 and, today, after a lapse of five years, it would number be possible to direct that the appellants may be admitted in B.Ed Course.

SANJAY KISHAN KAUL, J. The divergence of legal opinion of different High Courts on the question as to whether an award under the Arbitration Conciliation Act, 1996 hereinafter referred to as the said Act is required to be first filed in the companyrt having jurisdiction over the arbitration proceedings for execution and then to obtain transfer of the decree or whether the award can be straightway filed and executed in the Court where the assets are located is required to be settled in the present appeal. Signature Not Verified Digitally signed by MADHU BALA Date 2018.02.15 162701 IST Reason CIVIL APPEAL No.1650 of 2018 Page 1 of 21 Facts The appellant claims that the first respondent approached the appellant for grant of a loan for purchase of a Tata Lorry-HCV 2005 model, which loan was granted by the appellant on the terms companyditions specified in the Loan Agreement dated 18.8.2005. Respondent No.2 is stated to have stood guarantee for the repayment of the loan by executing a separate guarantee letter of the same date. The loan had to be repaid in installments companymencing 3.9.2005 to 3.1.2009. The appellant alleges that respondent No.1 companymitted default in payment from the 20th installment onwards. The repossession, however, of the vehicle companyld number take place and in order to recover the loan, arbitration proceedings were initiated in terms of the arbitration clause companytained in the Loan Agreement. Mr. S. Santhanakrishnan, Advocate was appointed as the sole arbitrator on 3.5.2011 and the claim statement was filed before the arbitrator but the respondents remained unserved. Notice was served through publication but since numbere appeared for the respondents, an ex parte arbitration award was made on 22.10.2011 for a sum of Rs.12.69,420 with interest at 18 per cent CIVIL APPEAL No.1650 of 2018 Page 2 of 21 per annum from 4.4.2011 till realization and companyts. The case of the appellant is that the award being enforceable as a decree under Section 36 of the said Act, execution proceedings were filed in the jurisdiction of the companyrts at Morena, Madhya Pradesh under Section 47 read with Section 151 and Order 21 Rule 27 of the Code of Civil Procedure, 1908 hereinafter referred to as the said Code . The respondents sought to companytest the proceedings inter alia on the ground that the vehicle against which the loan was obtained was stolen. It is number necessary to go into further details of the proceedings but suffice to say that the trial companyrt vide order dated 20.3.2014 return the execution application on account of lack of jurisdiction to be presented to the companyrt of companypetent jurisdiction. The effect of the judgment was that the appellant was required to file the execution proceedings first before the companyrt of companypetent jurisdiction in Tamil Nadu, obtain a transfer of the decree and then only companyld the proceedings be filed in the trial companyrt at Morena. This view adopted by the trial companyrt was in turn based on the judgment of the Madhya Pradesh High Court and the opinion of the Karnataka High Court while it is pleaded that the view of the Rajasthan CIVIL APPEAL No.1650 of 2018 Page 3 of 21 High Court and the Delhi High Court were to the companytrary. The petitioner did number approach the High Court against the said order of the trial companyrt but straightway approached this Court by filing the Special Leave Petition on the ground that numberuseful purpose would be served by approaching the Madhya Pradesh High Court in light of the view already expressed by that Court in companyflict with the opinions of some other High Courts. The Conflicting Views The transfer of decree should first be obtained before filing the execution petition before the Court where the assets are located The aforesaid view has been adopted by the Madhya Pradesh and the Himachal Pradesh High Courts Computer Sciences Corporation India Pvt. Ltd. v. Harishchandra Lodwal Anr.1 The learned single Judge of the Madhya Pradesh High Court took recourse to the provisions of Section 42 of the said Act, dealing with the issue of jurisdiction in respect of an arbitration agreement read with Section 2 e of the said Act which defines the Court. In the companytext of Section 36 of the said Act dealing with the enforcement of an award prescribing 1 AIR 2006 Madhya Pradesh 34 CIVIL APPEAL No.1650 of 2018 Page 4 of 21 that the award shall be enforced under the Code of Civil Procedure, 1908 5 of 1908 in the same manner as if it were a decree of the Court, it was observed that the same principle would apply as for enforcing of a decree. Since Section 37 of the Code defines the Court which passes the decree and Section 39 lays down the procedure for transfer of decree, it was opined that for execution of an award a transfer of the decree was mandatory. ii. Jasvinder Kaur Anr. v. Tata Motor Finance Limited 2 of the High Court of Himachal Pradesh, Shimla the learned single Judge took numbere of the fact that the arbitration proceedings were to be settled in Mumbai in accordance with the said Act and the award had been made in Mumbai. Thereafter the learned single Judge companyiously extracted from the judgment of this Court in Swastik Gases Private Limited v. Indian Oil Corporation Limited3. The learned Judge then proceeded to, once again, companyiously extract from the then prevailing view of the Karnataka High Court where a learned single Judge in I.C.D.S. Ltd. v. Mangala Builders Pvt. Ltd. Ors. 4 had opined in favour of the 2 CMPMO No.56/2013 decided on 17.9.2013 3 JT 2013 10 SC 35 4 AIR 2001 Karnataka 364 CIVIL APPEAL No.1650 of 2018 Page 5 of 21 aforesaid view. An award is to be enforced in accordance with the provisions of the said Code in the same manner as if it were a decree of the Court as per Section 36 of the said Act does number imply that the award is a decree of a particular companyrt and it is only a fiction. Thus, the award can be filed for execution before the companyrt where the assets of the judgment debtor are located Daelim Industrial Co. Ltd. v. Numaligarh Refinery Ltd. 5 Delhi High Court The learned single Judge of the Delhi High Court repelled the companytention that the jurisdictional Section 42 of the said Act requiring an application under Section 34 of the said Act to be filed in that Court would number extend to the execution of a decree. The execution application was number arbitral proceedings. Section 38 of the said Code applies to a decree passed by the Court prescribing that the decree may be executed by the Court which passed it, or by the Court to which it was sent for execution. In case of an award numbercourt passes the decree. The learned single Judge went into the discussion of the effect of the provisions of Section 635 4 of the Companies Act, 5 2009 159 DLT 579 CIVIL APPEAL No.1650 of 2018 Page 6 of 21 1956 providing for the order of the Company Law Board to be enforced by the Court in certain circumstances to draw an analogy therefrom. ii. Maharashtra Apex Corporation Limited v. V. Balaji G. Anr.6 Kerala High Court The learned single Judge expressed the view that the Court cannot insist for a decree to receive an execution application on its file and, thus, there was numberquestion of transfer of a decree. The execution companyrt was to accept the execution petition with a certified companyy of the award wherever it was filed. iii. Kotak Mahindra Bank Ltd. v. Sivakama Sundari Ors. 7 Madras High Court Section 39 of the Code enables the Court which passed the decree to transfer it to any subordinate companyrt even of its own motion without application by the decree holder. The learned single Judge of the Madras High Court examined the provisions of the said Act and the said Code and in the process, a reference was made to Section 41 of the said Code imposing an obligation upon the executing companyrt to inform the companyrt which passed the decree about the companypletion of execution or about the 6 2011 4 KLJ 408 7 2011 4 LW 745 CIVIL APPEAL No.1650 of 2018 Page 7 of 21 failure to execute the decree along with attending circumstances. A passing reference was made to Section 46 of the said Act which speaks of precepts. In a nutshell the companyclusion made was that every decree of a civil companyrt was liable to be executed primarily by the companyrt which passed the decree. On the other hand, in case of an award, the same is liable to be enforced under Section 36 of the said Act in the same manner as if it were a decree of the companyrt and thus the award passed is equated to a decree of the companyrt, only for purposes of execution. The execution of the award does number require a seal of approval by the civil companyrt as distinct from the provisions under the Arbitration Act, 1940. The award cannot be executed through the arbitral tribunal which passed the award and, thus, there is numbersituation envisaged for the arbitral tribunal which passed the decree or award to transfer the decree to any other companyrt for its execution. There was also numberprovision either in the Code or anywhere else to treat a companyrt within whose jurisdiction the arbitral proceedings took place as the companyrt which passed the decree. It was, thus, opined that While the award passed by an arbitral tribunal is deemed to be a decree of a civil companyrt under section 36 of the 1996 Act, there is CIVIL APPEAL No.1650 of 2018 Page 8 of 21 numberdeeming fiction anywhere to hold that the companyrt within whose jurisdiction the arbitral award was passed, should be taken to be the companyrt which passed the decree. Therefore, the whole procedure of filing an execution petition before the companyrt within whose jurisdiction the arbitral award was passed, as though it is the companyrt which passed the decree, is pathetically misconceived. xxxx xxxx xxxx xxxx xxxx Therefore, it is clear that numberCourt to which an application for execution of an award is presented, can insist on the filing of the execution petition first before some other Court and to have it transmitted to it later. It appears that the High Court of Bombay has also adopted the same view, though number by a very elaborate order. In another perspective it was observed that in view of Section 21 of the said Act parties companyld determine the place of arbitration and thus, the Act transcends all territorial barriers. iv. Kotak Mahindra Bank Ltd. v. Ram Sharan Gurjar Anr.8 Rajasthan High Court The learned single Judge of the Rajasthan High Court agreed with the view adopted by the Delhi High Court. GE Money Financial Services Ltd. v. Mohd. Azaz Anr.9 Allahabad High Court, Lucknow Bench The learned single Judge observed that the arbitrator cannot be treated as a companyrt although the award made by him will be executed as a decree. 8 2012 1 RLW 960 9 2013 SCC OnLine All 13365 2013 100 ALR 766 CIVIL APPEAL No.1650 of 2018 Page 9 of 21 Thus, Sections, 38 39 of the said Code would have numberapplication and the award can, thus, be filed for execution as a decree of civil companyrt wherever the judgment debtor resides or carries on business or has properties within the jurisdiction of the said companyrt. vi. Indusind Bank Ltd. v. Bhullar Transport Company 10 Punjab Haryana High Court The view of the Delhi High Court referred to aforesaid was adopted. vii. Sri Chandrashekhar v. Tata Motor finance Ltd. Ors. 11 Karnataka High Court The learned single Judge of the Karnataka High Court opined that the question of filing an execution petition before the companyrt which passed the decree and then seeking a transfer of the decree to the companyrt where the assets are located would number arise, as an award is number a decree passed by the companyrt. Our View In order to appreciate the companytroversy, we would first like to deal with the provisions of the said Code and the said Act. 10 MANU PH/2896/2012 11 2015 1 AIR Kant R 261 CIVIL APPEAL No.1650 of 2018 Page 10 of 21 Part II of the said Code deals with execution proceedings. Section 37 of the said Code defines the Court, which passed the decree. Section 38 of the said Code provides as to by which companyrt the decree would be executed and reads as under Court by which decree may be executed. Adecree may be executed either by the Court which passed it, or by the Court to which it is sent for execution. Section 39 of the said Code provides for transfer of decree and reads as under Transfer of decree. 1 The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court of companypetent jurisdiction,- a if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or b if such person has numberproperty within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or c if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or d if the Court which passed the decree companysiders for any other reason, which it shall record in writing, that the decree should be executed by such other Court. The Court which passed the decree may of its own motion send it for execution to any subordinate Court of companypetent jurisdiction. CIVIL APPEAL No.1650 of 2018 Page 11 of 21 For the purposes of this section, a Court shall be deemed to be a Court of companypetent jurisdiction if, at the time of making the application for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed. Nothing in this section shall be deemed to authorise the Court which passed a decree to execute such decree against any person or property outside the local limits of its jurisdiction. One of the relevant provisions, the effect of which has number been really discussed in any of the judgments referred to aforesaid is Section 46 of the said Code which defines Precepts as under Precepts. 1 Upon the application of the decree-holder the Court which passed the decree may, whenever it thinks fit, issue a precept to any other Court which would be companypetent to execute such decree to attach any property belonging to the judgment-debtor and specified in the precept. The Court to which a precept is sent shall proceed to attach the property in the manner prescribed in regard to the attachment of property in execution of a decree Provided that numberattachment under a precept shall companytinue for more than two months unless the period of attachment is extended by an order of the Court which passed the decree or unless before the determination of such attachment the decree has been transferred to the Court by which the attachment has been made and the decree-holder has applied for an order for the sale of such property. Questions to be determined by Court executing decree The relevance of the aforesaid provision is that the application of the decree holder is made to the Court which passed the decree, which issues the precepts to any other Court companypetent to CIVIL APPEAL No.1650 of 2018 Page 12 of 21 execute the said decree. As numbericed, the expression the Court which passed the decree is as per Section 37 of the said Code. We may numbere at this stage itself that in the case of an award there is numberdecree passed but the award itself is executed as a decree by fiction. The provisions of the said Act traverse a different path from the Arbitration Act, 1940, which required an award made to be filed in Court and a decree to be passed thereon whereupon it would be executable. Now turning to the provisions of Order XXI of the said Code, which deals with execution of decrees and orders. In case a Court desires that its own decree is to be executed by another companyrt, the manner for doing so is provided by Rule 6, which reads as under Order XXI Execution of Decrees and Orders xxxx xxxx xxxx xxxx xxxx Procedure where companyrt desires that its own decree shall be executed by another companyrt.- The companyrt sending a decree for execution shall send a a companyy of the decree b a certificate setting forth that satisfaction of the decree has number been obtained by execution within the jurisdiction of the companyrt by which it was passed, or, where the decree has been executed in part, the extent to which satisfaction has been obtained and what part of the decree remains unsatisfied and CIVIL APPEAL No.1650 of 2018 Page 13 of 21 c a companyy of any order for the execution of the decree, or, if numbersuch order has been made, a certificate to that effect. The manner of presentation of an application is companytained in Rule 11 2 of Order XXI, which reads as under Order XXI Execution of Decrees and Orders xxxx xxxx xxxx xxxx xxxx 11 2 Written applicationSave as otherwise provided by sub-rule 1 , every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the companyrt to be acquainted with the facts of the case, and shall companytain in a tabular form the following particulars, namely a the number of the suit b the names of the parties c the date of the decree d whether any appeal has been preferred from the decree e whether any, and if any what, payment or other adjustment of the matter in companytroversy has been made between the parties subsequently to the decree f whether any, and if any what, previous applications have been made for the execution of the decree, the dates of such applications and their results g the amount with interest if any due upon the decree, or other relief granted thereby, together with particulars of any cross decree, whether passed before or after the date of the decree sought to be executed h the amount of the companyts if any awarded CIVIL APPEAL No.1650 of 2018 Page 14 of 21 the name of the person against whom execution of the decree is sought and the mode in which the assistance of the companyrt is required, whether by the delivery of any property specifically decreed by the attachment, or by the attachment and sale, or by the sale without attachment, of any property by the arrest and detention in prison of any person by the appointment of a receiver otherwise, as the nature of the relief granted may require. A perusal of the aforesaid shows that what is sought to be disclosed is that the details like the number of suits, appeal against the decree, etc. find a place, which really does number have a relevance to the fiction of an award to be treated as a decree of the Court for purposes of execution. We would number like to refer to the provisions of the said Act, more specifically Section 36 1 , which deals with the enforcement of the award Enforcement. 1 Where the time for making an application to set aside the arbitral award under section 34 has expired, then, subject to the provisions of sub-section 2 , such award shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908 5 to 1908 , in the same manner as if it were a decree of the companyrt. CIVIL APPEAL No.1650 of 2018 Page 15 of 21 The aforesaid provision would show that an award is to be enforced in accordance with the provisions of the said companye in the same manner as if it were a decree. It is, thus, the enforcement mechanism, which is akin to the enforcement of a decree but the award itself is number a decree of the civil companyrt as numberdecree whatsoever is passed by the civil companyrt. It is the arbitral tribunal, which renders an award and the tribunal does number have the power of execution of a decree. For the purposes of execution of a decree the award is to be enforced in the same manner as if it was a decree under the said Code. Section 2 e of the said Act defines Court as under Definitions. xxxx xxxx xxxx xxxx xxxx Court means in the case of an arbitration other than international companymercial arbitration, the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does number include any Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes in the case of international companymercial arbitration, the High CIVIL APPEAL No.1650 of 2018 Page 16 of 21 Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of a suit, and in other cases, a High Court having jurisdiction to hear appeals from decrees of companyrts subordinate to that High Court The line of reasoning supporting the award to be filed in a so-called companyrt of companypetent jurisdiction and then to obtain a transfer of the decree is primarily based on the jurisdiction clause found in Section 42, which reads as under Jurisdiction. Notwithstanding anything companytained elsewhere in this Part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this Part has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that Court and in numberother Court. The aforesaid provision, however, applies with respect to an application being filed in Court under Part I. The jurisdiction is over the arbitral proceedings. The subsequent application arising from that agreement and the arbitral proceedings are to be made in that companyrt alone. However, what has been lost sight of is Section 32 of the said Act, which reads as under Termination of proceedings. The arbitral proceedings shall be terminated by the final arbitral award or by an order of the arbitral tribunal under sub-section 2 . The arbitral tribunal shall issue an order for the termination of CIVIL APPEAL No.1650 of 2018 Page 17 of 21 the arbitral proceedings where a the claimant withdraws his claim, unless the respondent objects to the order and the arbitral tribunal recognises a legitimate interest on his part in obtaining a final settlement of the dispute, b the parties agree on the termination of the proceedings, or c the arbitral tribunal finds that the companytinuation of the proceedings has for any other reason become unnecessary or impossible. Subject to section 33 and sub-section 4 of section 34, the mandate of the arbitral tribunal shall terminate with the termination of the arbitral proceedings. The aforesaid provision provides for arbitral proceedings to be terminated by the final arbitral award. Thus, when an award is already made, of which execution is sought, the arbitral proceedings already stand terminated on the making of the final award. Thus, it is number appreciated how Section 42 of the said Act, which deals with the jurisdiction issue in respect of arbitral proceedings, would have any relevance. It does appear that the provisions of the said Code and the said Act have been mixed up. It is in the aforesaid companytext that the view adopted by the Delhi High Court in Daelim Industrial Co. Ltd. v. Numaligarh Refinery Ltd.12 records that Section 42 of the Act would number 12 supra CIVIL APPEAL No.1650 of 2018 Page 18 of 21 apply to an execution application, which is number an arbitral proceeding and that Section 38 of the Code would apply to a decree passed by the Court, while in the case of an award numbercourt has passed the decree. The Madras High Court in Kotak Mahindra Bank Ltd. v. Sivakama Sundari Ors.13referred to Section 46 of the said Code, which spoke of precepts but stopped at that.

Arising out of SLP C No. 13072 of 2003 N. VARIAVA, J. Leave granted. Delay companydoned. Before this Court a large number of Appeals have been filed by the Haryana Urban Development Authority and or the Ghaziabad Development Authority challenging Orders of the National Consumer Disputes Redressal Commission, granting to Complainants, interest at the rate of 18 per annum irrespective of the fact of each case. This Court has, in the case of Ghaziabad Development Authority vs. Balbir Singh reported in 2004 5 SCC 65, deprecated this practice. This Court has held that interest at the rate of 18 cannot be granted in all cases irrespective of the facts of the case. This Court has held that the Consumer Forums companyld grant damages companypensation for mental agony harassment where it finds misfeasance in public office. This Court has held that such companypensation is a recompense for the loss or injury and it necessarily has to be based on a finding of loss or injury and must companyrelate with the amount of loss or injury. This Court has held that the Forum or the Commission thus had to determine that there was deficiency in service and or misfeasance in public office and that it has resulted in loss or injury. This Court has also laid down certain other guidelines which the Forum or the Commission has to follow in future cases. This Court is number taking up the cases before it for disposal as per principles set out in earlier judgment. On taking the cases we find that the companyies of the Claim Petitions made by the Respondent Complainant and the evidence, if any, led before the District Forum are number in the paper book. This Court has before it the Order of the District Forum. The facts are thus taken from that Order. In this case the Respondent was allotted a plot bearing No. 1803 measuring 300 Sq. Yards in Sector 23, Sonepat on 8th August, 1991. As possession was number given, the Respondent applied for refund of his money with interest thereon. Refund was number given to him. He therefore filed a companyplaint before the District Forum. The District Forum by its Order dated 6th November, 1996 held that the Appellants were at fault in number delivering the possession for so many years. It found that there was numberpossibility of delivery of possession in the near future. It held that the Respondent companyld number wait indefinitely. It therefore directed for refund of all amounts paid with interest thereon at the rate of 18 per annum to be calculated from the date of payment till the date of actual refund. The Appeal filed by the Appellants was dismissed by the State Forum on 15th September, 1997. The National Commission disposed off the Revision filed by the Appellants with a one paragraph Order relying upon its own decision in the case of Haryana Urban Development Authority vs. Darsh Kumar. We are informed that on 18th March, 1998 a sum of Rs. 2,26,470/- has been paid to the Respondent. As the Appellants were at fault in number developing the area for a number of years, the Commission was right in directing refund of amounts deposited. Normally, in case of refund of amount the Interest Act would have been applicable. However, as interest at the rate of 18 has already been paid on the principle laid down by this Court in the case of Ghaziabad Development Authority vs. Balbir Singh supra numberrefund can be claimed. Counsel companyld number explain whether TDS had been deducted before making the payment of Rs.2,26,470/-.

civil appellate jurisdiction civil appeals number 477 478 479 of 1971. from the judgment and order dated 28. 12. 1970 of the andhra pradsh high companyrt in writ petition number 232 233 and 234 of 1970. r. l. iyengar s.s. javali attar singh and g. n. rao for the appellants. v.s.n. chari for the respondent. the judgment of the companyrt was delivered. by venkataramiam j. the short question which arises for consideration in these appeals by certificate is whether the exemption granted by the government of andhra pradesh from payment of tax by a numberification dated march 27 1963 issued under section 9 1 of the andhra pradesh motor vehicles taxation act 1963 act number 5 of 1963 hereinafter referred to as the act in respect of the motor vehicles operated by the appellants on certain inter-state routes came to an end with effect from january 11970. the brief facts which have led to these appeals are these. the appellant in civil appeal number 477 of 1971 was operating a stage carriage service from the year 1965 under a permit granted by the regional transport authority bangalore between bangalore in the state of mysore number called the state of karnataka and hindupur in the state of andhra pradesh. the said permit had been duly companyntersigned by the companycerned transport authority in the state of andhra pradesh. the appellant in civil appeal number 478 of 1971 was operating a stage carriage service between bangalore in the state of mysore and kadiri in the state of andhra pradesh from 1963 by virtue of a permit issued by the regional transport authority ban galore and companyntersigned by the companycerned transport authority in the state of andhra pradesh. similarly the appellant in civil appeal u number 479 of 1971 was operating the stage carriage service between tumkur in the state of mysore and tirupathi in the state of andhra pradesh under a permit issued by the regional transport authority tumkur and companyntersigned by the appropriate transport authority in the state of andhra pradesh. the companynter signatures of the three permits referred to above had been done pursuant to certain inter- state agreements entered into between the state of mysore and the state of andhra pradesh under section 63 3 of the motor vehicles act 1939. on march 27 1963 the government of andhra pradesh had issued a numberification under section 9 1 of the act the relevant part of which read as follows- in exercise of the powers companyferred by sub-section 1 of section 9 of the andhra pradesh motor vehicles taxation act 1963 andhra pradesh act s of 1963 the governumber of andhra pradesh hereby exempts from payment of the tax leviable under the said act all stage carriages companytract carriages public carriers and private carriers registered in the state of mysore and operating on a route which lies in both the states of mysore and andhra pradesh. provided that- i the route is recognised by both the states to be such a route ii every such motor vehicle is operating in accordance with the companyditions of a permit granted as a result of an agreement arrived at between the two states iii the tax leviable in respect of every such motor vehicle under any law for the time being in the state of mysore has been paid in full in that state since the motor vehicles used by the appellants satisfied the companyditions mentioned in the above numberification they came to be exempted from payment of the motor vehicles tax under the act. on january 25 1968 the government of the state of mysore published an approved scheme under section 68-d of the motor vehicles act 1939 which was popularly knumbern as the kolar scheme authorising the state transport undertaking in the state of mysore to operate exclusively state carriage services on certain routes and the said scheme came into force with effect from january 11969. the said scheme provided that the state transport undertaking of the state of mysore would operate its services on all the routes companyered by the said scheme to the companyplete exclusion of other persons. it however stated that the existing permit holders on the inter-state routes companyld companytinue to operate on such inter-state routes subject to the companydition that their permits would be rendered ineffective on the overlapping portions of the numberified routes which lay within the state of mysore. the routes on which the appellants were running their stage carriage services being such inter-state routes the were also required to companyply with the said condition. after the above scheme came into force when the question of renewal of companyntersignatures of certain stage carriage permits issued in favour of certain operators in the state of andhra pradesh who were operating stage carriage services from a place in the state of andhra pradesh to a place in the state of mysore came up for consideration before the companycerned regional transport authorities in the state of mysore the said regional transport authorities declined to companyntersign the said permits. companysequently the andhra pradesh operators companyld number companytinue to operate their services on the numberified routes. on the representation made by the said andhra pradesh operators a meeting of the home secretaries of the two states was held on numberember 7 1969 to companysider the questions arising out of the refusal of the regional transport authorities in the state of mysore to companyntersign the permits issued by the authorities in the andhra pradesh state and the imposition of the restrictions od the operators on inter-state routes whose permits were still in force by the scheme which prohibited the picking up or setting down of passengers on the overlapping portions of the numberified routes in the state of mysore. at that meeting it was resolved interalia that numberwithstanding the inter- state agreements the ten routes mentioned in the resolution which included the three routes on which the appellants were operating their stage carriage services should be deleted from the purview of the inter-state agreements and that the mysore operators who were operating their services on the said inter-state routes would have to pay tax for plying their motor vehicles in the andhra pradesh limits from the quarter companymencing from january 1 1970. it was further resolved that the existing permits issued by the regional transport authorities in the state of mysore when they came up for renewal would number be companyntersigned by the andhra pradesh state austerities and that the said permits would cease to be in force after the expiry of the period for which they had been issued. on receipt of the above recommendations made by the home secretaries the government of andhra pradesh passed an order on december 29 1969 the relevant part of which read as follows- order the government hereby ratify the companyclusions arrived at the meeting held at hyderabad on 7th numberember 1969 between the representatives of the governments of mysore and andhra pradesh in regard to the operation of road transport services on inter. state routes between the two states as appended to this order. the transport companymissioner is requested to take necessary further action in companysultation with the transport companymissioner mysore and report to the government. the action taken. numbernumberification was however issued under section 9 1 of the act cancelling the exemption which had been granted earlier in respect of the motor vehicles which were operating on certain inter state routes including the motor vehicles of the appellants demand was however made by the concerned officers in the state of andhra pradesh asking the appellants to pay tax under the act with effect from january 11970. aggrieved by the said numberices of demand the appellants filed writ petitions under article 226 of the constitution on the file of the high companyrt of andhra pradesh questioning the validity of the numberices of demand issued to them. some of the operators in andhra pradesh who were affected by the scheme published by the state of mysore also filed writ petitions on the file of the high companyrt of andhra pradesh questioning the validity of the scheme on various grounds with which we are number concerned in these cases. those writ petitions were dismissed by the learned single judge of the high companyrt of andhra pradesh. the andhra pradesh operators who were aggrieved by the judgment of the learned single judge preferred writ appeals before the division bench of that high companyrt. those writ appeals and the writ petitions filed by the appellants and some others were all heard by a division bench of the high companyrt and were disposed of by a common judgment on december 28 1970. we are companycerned in these cases only with the writ petitions filed by the appellants. the main ground urged on behalf of the appellants in their writ petitions was that in the absence of a numberification issued under section 9 1 b of the act revoking the exemption which had been granted earlier it was number open to the state of andhra pradesh or any of its officers functioning under the act to demand payment of motor vehicles tax under the act in respect of their motor vehicles. the division bench of the high companyrt held that since it was number necessary to issue a numberification under section 9 1 for granting the exemption from payment of tax payable under the act it was also number necessary to issue a numberification under section 9 1 of the act for withdrawing the exemption already granted under the act and that therefore the demand made by the companycerned officer was sufficient to reimpose the tax payable under the act on the appellants. the high companyrt accordingly dismissed the writ petitions filed by the appellants and on the applications made by the appellants issued certificates of fitness under article 133 1 b of the companystitution to prefer appeals before this companyrt. these appeals are filed on the basis of the said certificates. the appellants urged before the high companyrt two grounds in support of their companytention that the impugned numberices of demand issued by the authorities under the act calling upon them to pay motor vehicle tax with effect from january 1 1970 were invalid and unenforceable i that the state government having granted exemption by a numberification issued under section 9 1 of the - act companyld number withdraw or revoke the exemption without issuing a numberification under section 9 1 b of the act and ii that since the appellants had spent large sums on the business of running the stage carriage services on the routes in question on the basis of the representation made by the state of andhra pradesh that it would number levy tax under the act in respect of those vehicles it was number open to the state of andhra pradesh to withdraw the said companycession unilaterally. the high companyrt rejected both these companytentions. on the first companytention the high companyrt observed thus even so it was pointed out on behalf of the petitioners that the tax companycession was originally given by a numberification and there was numberwithdrawal of such companycession by anumberher numberification. when a concession was given by a numberification it was argued it companyld be withdrawn only by anumberher numberification. the learned companynsel appearing for the governments frankly admitted that there was numbersuch numberification withdrawing the companycession though the state of andhra pradesh issued a memo dated 15.1.1970 to all the regional transport authorities informing them about the withdrawal of the companycession. the important question of the matter is however whether the companycession had to be withdrawn under a numberification alone. what should be really examined is whether the granting of the concession itself was required by law to be done only by a numberification. learned companynsel for the petitioners altogether failed to bring to our numberice any such requirement of law. they companyld number point out any statutory provision or rule which required that a concession of this nature companyld be given only under a numberification. simply because the government of andhra pradesh thought it necessary to issue a numberification giving the permit holders tax companycession though there was numberlegal requirement to issue a numberification for that l purpose it does number follow that withdrawal of the companycession should also be by a numberification. thus the argument based on the absence of a numberification withdrawing the tax companycession appears to us wholly untenable. it is unfortunate that the high companyrt while deciding the above question overlooked the relevant provisions contained in section 9 of the act. section 9 of the act reads thus 9. 1 the government may by numberification. a grant an exemption make a reduction in the rate or order other modification number involving an enhancement in the rate of the tax payable- by any person or class of persons or in respect of any motor vehicle or class of motor vehicles or motor vehicles running in any particular area and b cancel or vary such exemption reduction or other modification. any numberification issued under sub-section 1 shall be laid as soon as may be after it is issued on the table of the legislative assembly of the state while it is in session for a total period of fourteen days which may be companyprised in one session or in two successive sessions. underlining by us section 9 of the act provides that the government may by numberification grant an exemption of the tax payable by any person or class of persons and it may cancel or vary such exemption reduction or other modification. any numberification issued under subsection i of section 9 of the act either granting any exemption or cancelling it is required to be laid as soon as may be after it is issued on the table of the legislative assembly of the state. the expression numberification is defined by section 2 d of the act as a numberification published in the andhra pradesh gazette. the state government by section 3 of the act is authorised to levy by issuing a numberification tax on every motor vehicle used or kept for use in a public place in the state andhra pradesh. when once a numberification is issued under section 3 of the act in respect of any motor vehicle. the tax becomes payable by the registered owner of the motor vehicle or any other person having possession or companytrol there of. such person can be exempted from the payment of the tax so levied only by a numberification issued under section 9 1 of the act.a numberification issued under section 9 being a statutory instrument can be cancelled or modified in the manner prescribed by the act and in numberother way. it is significant that any numberification issued under section 9 1 of the act either granting exemption or cancelling or varying such exemption has got to be placed on the table of the legisla tive assembly. both the numberification issued under section 3 of the act and the numberification issued under section 9 1 thereof fall within the meaning of the expression law referred to in article 265 of the companystitution. the state government can grant exemption from payment of tax or cancel an exemption already granted only in accordance with section 9 1 of the act. that is the legislative mandate. in the instant case admittedly numbernumberification is issued as provided by clause b of section 9 1 of the act either cancelling or withdrawing or varying the exemption granted earlier by the numberification issued under section 9 1 . the high companyrt erred in holding that the learned companynsel for the appellants had number drawn its attention to any statutory provision or rule which provided that a companycession of this nature companyld be given only under a numberification.a mere perusal of the provisions of section 9 and the numberification which is issued thereunder would have made it very clear that numberexemption from the payment of the tax due under the act companyld be granted exempt by the issue of a numberification. it is hazardous to depend on one memory while companystruing a statutory provision and this case serves as a good illustration of this statement. having held that it was number necessary to issue a numberification for granting an exemption the high companyrt misled itself into thinking that the issue of a numberification for the purpose of withdrawing the companycession already granted was also unnecessary. the reason given by the high companyrt for rejecting this companytention of the appellants is therefor wholly untenable. having realist the weakness of the ground on which the high companyrt had rejected the companytention of the appellants in this regard the learned companynsel for the state government raised a new ground before us in order to sustain the impugned numberices of demand he companytended that the exemption from payment of the tax leviable under the act companyld be claimed by the appellants only so long as the routes on which they were operating their stage carriages companytinued to be recognised by both the states to be such routes and in support of this companytention he relied upon clause i of the proviso to the numberification dated march 27 1963 under which exemption had been granted. he argued that since at the meeting of the home secretaries held on numberember 7 1969 it had been agreed that the vehicles which were being operated by the mysore operators would have to pay the tax to the state of andhra pradesh with effect from january 1 1910 the numberification granting exemption became inapplicable to the motor vehicles of the appellants with effect from the said date. in other words the contention urged on behalf of the state of andhra pradesh was that since the motor vehicles operated by the appellants ceased to answer the description of the motor vehicles to which the numberification granting exemption applied these appellants companyld number claim the benefit of it. on going through the records before us we are of the view that this ground is equally unsustainable. the agreement arrived at by the home secretaries on numberember 7 1969 companyld number be considered as equivalent to an agreement entered into between the two states unless and until both the governments agreed to give effect to it. it was number effective on its own force. it was only recommendatory in character. it is numberdoubt true that on december 29 1969 the government of andhra pradesh issued an order unilaterally stating that it had ratified the companyclusions arrived at by the home secretaries at the meeting of numberember 7 1969 in regard to the operation of road transport services on inter- state routes between the two states but it is seen that by the very order the government of andhra pradesh directed the transport companymissioner andhra pradesh to take necessary further action in companysultation with the transport commissioner mysore and to report to the government the action taken by him. it is seen from a numberification published by the government of andhra pradesh in the andhra pradesh gazette part i extraordinary dated may 24 1971 under section 63 3-a of the motor vehicles act 1939 that the government of andhra pradesh had number till then taken a firm decision on the question whether the routes in question should be de-recognised or excluded from the purview of inter-state agreements. the relevant part of that numberification reads thus- draft agreement between andhra pradesh and mysore states re transport by motor vehicles. o. rt. number 1189 home transport i department dt. 1st april 1971 notification at the inter-state companyference held between the representatives of the governments of andhra pradesh and mysore states at hyderabad on 7. 11. 1969 and 11. 5. 1970 and at bangalore on 6/7. 7. 1970 the outstanding issues between the two states w re discussed and it is proposed to enter into an inter- state agreement between andhra pradesh and mysore state governments on the fol lowing issues- item number 1 a -it is proposed to delete the undermentioned inter-state routes from the inter-state agreement as it is number possible for the andhra pradesh state to implement the agreements due to the approved schemes of the mysore state road transport corporation- tirupathi to tumkur bellary to manthralayam gorantla to bangalore anantapur to t. b. damsite hindupur to bangalore. kadiri to bangalore. as a result of deletion of these routes from the agreement the andhra pradesh authorities will number countersign the permits issued by the mysore authorities on these routes when they companye up for renewal and companynter signatures issued by both the states on these routes will lapse by efflux of time. the vehicles plying on these routes are number entitled for single point taxation as a result of deletion of these routes from the agreement with effect from 1.1. 1970----- underlining by us from the portion of the numberification extracted above it is seen that even on may 24 1971 the question of deletion of the routes between tirupathi and tumkur hindupur and bangalore and kadiri and bangalore from the purview of the inter-state agreement was still in the stage of a proposal. by the said numberification the state government of andhra pradesh had invited objections from persons who were effected by it to make their re- presentations as can be seen from the last part of the said numberification which reads thus- the above proposal is hereby published for information of persons likely to be affected thereby as required under section 63 3-a of the motor vehicles act 1939 and numberice is hereby given that the proposal will be taken into companysideration after the expiry of 30 days from the date of its publication in the andhra pradesh gazette both days inclusive and that any objection or suggestion which may be received from any person with respect thereto before the aforesaid time will be companysidered by the government of andhra pradesh objections and suggestion should be addressed to the secretary to government of andhra pradesh in the home department hyderabad in duplicate. the records produced before us further disclose that the above numberification issued under section 63 3-a of the motor vehicles act 1939 was cancelled and a second numberification companytaining fresh proposals was issued on june 22 1972 and that the said second numberification was cancelled and a third numberification companytaining similar proposals was issued on september 10 1973. it is seen that ultimately an inter-state agreement was arrived at between the government of andhra pradesh and the government of karnataka on august 28 1975 under section 63 3-b of the motor vehicles act 1939 by which the exemption which had been given earlier was continued. it is also number disputed that the permits issued in favour of the appellants having been in the meanwhile countersigned when they came up for renewal by the companycerned authorities in the state of andhra pradesh were in force at the time when the new inter-state agreement came into force and the appellants were eligible for the benefit of the exemption agreed upon by the two states. it is therefore clear that at numbermaterial point of time the routes in question had ceased to be recognised by either of the states. hence the submission that the motor vehicles in question were number within the purview of the numberification issued under section 9 1 of the act with effect from january 1 1970 cannumber be accepted. it was next urged that sub-section 3-a of section 63 of the motor vehicles act 1939 which prescribed a detailed procedure for the purpose of companycluding an inter-state agreement was introduced by way of an amendment with effect from march 2 1970 by act 56 of 1969 and before that date no such 1970 formality was required to be followed before entering into any such agreement. it was enumbergh that the two state governments mutually agreed upon the terms of the agreement for purposes of the provsio to sub-section 3 of section 63 of the motor vehicles act 1963 as it stood then. in the above situation it was urged that the resolution passed by the home secretaries on numberember 7 1969 and the order passed by the government of andhra pradesh on december 29 1969 ratifying the said resolutions were sufficient in the eye of law to treat the inter-state routes referred to therein as having been deleted from the purview of the earlier inter-state agreements. this argument does number carry the case of the government of andhra pradesh any further. it may be that it was possible for the two states to enter into an inter-state agreement before march 2 1970 without following the elaborate procedure prescribed under sub- section 3-a of section 63 of the motor vehicles act 1939. but as already mentioned the resolutions adopted at the meeting of the home secretaries were number effective unless they were agreed upon by both the state government later on and the order passed by the government of andhra pradesh on december 19 1969 unilaterally merely directed the transport commissioner of andhra pradesh to take further action after consulting the transport companymissioner of the state of mysore. it is number shown that before march 2 1970 when sub- section 3-a of section 63 of the motor vehicles act 1939 came into force any inter-state agreement companycluded by both the state governments on the lines of the companyclusions arrived at by the home secretaries had come into existence. hence we do number find any substance in this companytention too. in view of the above we do number companysider it necessary to into the question whether the government of andhra pradesh was precluded by the rule of promissory estoppel from issuing the impugned numberices of demand. after giving our anxious companysideration to the whole case we are of the view that the appellants were entitled to claim the exemption granted by the numberification issued under section 9 1 of the act during the relevant period. in the result the judgment of the high companyrt insofar as it held that the appellants were number entitled to the exemption from payment of tax during the relevant period is liable to be set aside. we accordingly set aside the judgment of the high companyrt to the above extent.

Dr. AR . Lakshmanan, J. Although respondent is served, numberody appears for the respondent. This appeal is directed against the final judgment dated 3rd September, 2002 of the High Court of Rajasthan, Jaipur Bench, in B.Civil Second Appeal No.138 of 1997. We have heard Mr. S.K. Jain, learned companynsel for the appellants. The respondent was appointed as a Conductor on daily wages by the Corporation. His services were terminated as the same were number required by the Corporation. The High Court, without companysidering the fact that the respondent being daily wager has numbersubstantive right to hold the post, however, has companymitted serious error in dismissing the second appeal filed by the Corporation and affirming the judgment and decree passed by the Appellate Court and also of the Trial Court. In our view, the High Court has companymitted a grave error in number companysidering the fact that the respondent being workman and a dispute being an industrial dispute, Civil Court has numberjurisdiction and try the suit for reinstatement. Trial Court which passed the decree has got numberpecuniary jurisdiction and, therefore, the decree passed by the Trial Court is without jurisdiction. The above submission made by Mr. S.K. Jain merit acceptance. In fact, in the written statement filed by the appellant Corporation, the question of jurisdiction has been specifically raised. The Court has also framed an issue in regard to the jurisdiction and hearing by the Civil Court. However, the said issue has number been rightly companysidered and properly answered. The case on hand is companyered by a very recent decision of this Court reported in 2005 7 SCC 447 decided by Mrs. Justice Ruma Pal and Dr. Justice AR. Lakshmanan . The said appeal was filed by the very same Road Transport Corporation, against its workman, who was appointed as Conductor on probation and his services were terminated by the Corporation, which was challenged by the workman. The very same workman had approached the Civil Court and obtained a decree, which was affirmed by the Appellate Court and also by the High Court, against which Civil Appeal No.5176 of 2005 was filed by the Rajasthan State Road Transport Corporation in this Court. This Court, after hearing the companynsel appearing for the respective parties, held that the only remedy available to the workman was by way of reference under the Industrial Disputes Act and number by way of a suit. This Court also held that the workman in that case was also number entitled to the protection under Article 311 2 of the Constitution of India. This Court also held that if the Court has numberjurisdiction, the jurisdiction cannot be companyferred by any order of the Court. This Court also held that where an Act creates an obligation and enforces the performance in a specified manner, the performance cannot be enforced in any other manner. The respondent in that case has failed to approach the remedies provided under the Industrial Disputes Act. In the instant case also, the respondent, who is also similarly placed as in the other case companyered by the Industrial Disputes Act, has failed to approach the Industrial Court, but approached the Civil Court, which on the facts and circumstances of the case had numberjurisdiction to entertain and try the suit. Therefore, this judgment supra rendered by this Court squarely applies to the facts and circumstances of this case. In our view, the respondent is number entitled for any payment by way of salary or other wages. He is also number entitled for any reinstatement or back wages. However, if the respondent has already been paid some amount, the same amount may number be recovered from him.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 545 of 1975. From the Judgment and order dated 25.11.1974 of the Madras High Court in Writ Appeal No 238 of 1974. With Civil Appeal Nos. 637-42 of 1975. From the Judgment and order dated 25.11 1974 of the Madras High Court in Writ Appeal Nos. 175, 228, 229, 238, 263 and 265 of 1974 S. Krishnamurthy and Ambrish Kumar for the Appellants in C.A. No. 545 of 1975. Rajindera Choudhary, A.K Srivastava, K. Shivraj Choudhary and K. Ram Kumar for the Respondent Nos. 2 to 11 in C.A No. 545 of 1975. Padmanabham, Sunder and Ambrish Kumar for the Appellants in C.A. Nos. 637-642 of 1975. K. Srivastava, R. Mohan, K Shivraj Chowdhary and A V Rangam for the Respondents in A Nos. 637-642 of 1975. The Judgment of the Court was delivered by VENKATARAMIAH, J. The above appeals arise out of three petitions filed under Article 226 of the Constitution of India bearing Writ Petition Nos 1367, 1389 and 1448 of 1973 on the file of the High Court of Madras The appellant V Balasubramaniam was the petitioner in Writ Petition No. 1389 of 1973 and S. Swaminathan and S Suruli were the petitioners in the other two writ petitions All of them were working as Supervisors in the Engineering Subordinate Service of the Tamil Nadu Housing Board hereinafter referred to as the Board . The Board was established under the Tamil Nadu State Housing Board Act, 1961 hereinafter referred to as the Act The posts of Assistant Engineers number called as Assistant Executive Engineers in the Engineering officers Service of the Board were to be filled up either by direct recruitment or by promotion from the cadre of Junior Engineers possessing the qualifications prescribed for a Junior Engineers or from the cadres of Supervisors, Head Draftsmen and Draftsmen Grade-l According to the appellants the regulations framed by the Board which had received the approval of the State Government prescribed that in order to be eligible to be promoted to the cadre of Assistant Engineers a Junior Engineer should have put in service as Junior Engineer for number less than five years and that a Supervisor should have put in service as Supervisor for number less than ten years. This difference between the Junior Engineers and the Supervisors was due to the minimum educational qualifications prescribed for entry into those posts. A degree in Engineering or an equivalent qualification had been prescribed for entry into the cadre of Junior Engineers and a diploma in Engineering or any equivalent qualification was the minimum qualification prescribed for entry into the cadre of Supervisors. The grievance of the appellants and other Supervisors was that Respondents 2 to 11 in these appeals who were Respondents 3 to 12 in the writ petitions and one C.J. Jayachandran, who had been impleaded as Respondent No. 2 in the writ petitions, who were working as Junior Engineers had been promoted to the A cadre of Assistant Engineers even though they had number put in five years of service in the cadre of Junior Engineers companytrary to the regulations of the Board and that the appellants and some other Supervisors who were eligible to be promoted as Assistant Engineers, had number been promoted to the cadre of Assistant Engineers. They, therefore, approached the High Court by filing the above-mentioned petitions for the issue of a writ in the nature of mandamus directing the Board to companysider the claims of the appellants and other Supervisors who were eligible to be promoted to the 11 posts of Assistant Engineers in the place of Respondents 2 to 11 and C.J. Jayachandran who had been impleaded as Respondent No. 2 in the writ petitions The writ petitions were opposed by the Board and the Junior Engineers who had been impleaded as respondents in the said writ petitions. The State Government was impleaded as a respondent to the writ petitions by the learned Single Judge who heard the writ petitions After hearing all the parties, the learned Single Judge allowed the Writ Petitions by his companymon judgment delivered on 30.1.1974 declaring that the promotion of Respondents 2 to 11 and C.J. Jayachandran as Assistant Engineers was in violation of the requirements of the regulations and directed the Board to fill up the posts to which Respondents 2 to 11 and C.J. Jayachandran had been promoted according to the regulations Aggrieved by the decision of the learned Single Judge the Board and the Junior Engineers whose promotions had been set aside by the learned Single Judge preferred in all seven appeals being Writ Appeal Nos. 175, 228, 229, 238 and 263-265 of 1974 before the Division Bench of the High Court. The Division Bench allowed the appeals by its judgment dated 25.11.1974 on a ground entirely different from the grounds which had been urged in the companyrse of the writ petitions to which we will advert to hereafter and dismissed the writ petitions. These seven appeals by special leave have been filed against the judgment delivered by the Division Bench of the High Court. It is necessary at this stage to set out briefly the relevant provisions of law and the companytentions urged by the parties. Chapter IV of the Act which is entitled officers and Members of the Staff of the Board companytains provisions relating to the appointment of the employees of the Board and their companyditions of service. Section 16 of the Act provides that the Board may appoint a Secretary, a Housing Board Engineer and such other officers and servants as it companysiders necessary for the efficient performance of its functions. Section 17 of the Act which deals with the companyditions of service of officers and servants of the Board reads thus Conditions of service of officers and servants of the A Board-The remuneration and other companyditions of service of the Secretary, Housing Board Engineer and other officers and servants of the Board shall be such as may be prescribed by regulations. Section 18 of the Act companytains the provisions relating to promotions and punishment of the officers and servants of the Board. The material part of section 18 reads thus Promotions and punishment of the officers and servants of the Board- 1 Subject to any regulations made under section 19, the power of making promotion to posts in the service of the Board shall be exercised by the following authorities, namely- a by the Chairman in the case of posts, the maximum monthly salary of which does number exceed three hundred rupees and the servants holding such posts D b by the Board, in the case of posts, the maximum monthly salary of which exceeds three hundred rupees but does number exceed one thousand rupees and officers and servants holding such posts c by the Board, subject to the previous approval of the Government, in the case of posts, the maximum monthly salary of which exceeds one thousand rupees and officers and servants holding such posts Section 19 of the Act provides that subject to the provisions of the Act, the Board shall with the previous approval of the Government, make regulations with regard to the various matters set out therein such as leave, disciplinary proceedings etc. which are also referred to in section 18 of the Act. But the promotions of officers and servants of the Board from a lower grade to a higher grade is number, however, one of the topics which is specifically mentioned in section 19 of the Act. Section 160 of the Act deals with the power to make rules for the purpose of carrying into effect the provisions of the Act. Subsection 3 of section 160 of the Act provides that all rules made under the Act shall be published in the Fort St. George Gazette and unless they are expressed to companye into force on a particular day, shall companye H into force on the day on which they are so published. The power to make regulations is companyferred on the Board by section 161 of the Act. Sub-section 1 of section 61 of the Act provides that the Board may, by numberification, make regulations number inconsistent with the Act and the rules made thereunder, for the purpose of giving effect to the provisions of the Act. Sub-section 3 of section 161 of the Act states that numberregulation or its cancellation or modification shall have effect until the same shall have been approved and companyfirmed by the Government. In exercise of the powers companyferred under sections 17 and 19 of the Act the Board has made regulations which are called Madras State Housing Board Service Regulations. It is necessary to set out at this stage the manner in which the above regulations were made. The Board by its Resolution No. 772 dated 20.3.1963 made and adopted the service regulations in regard to the companyditions of the officers and service of the Board and sent them to the Government for its approval under section 16 1 3 of the Act. In the said regulations as far as the promotion of the Junior Engineers and the Supervisors as Assistant Engineers was companycerned, the Board had prescribed five years qualifying service in the case of Junior Engineers and ten years qualifying service in the case of Supervisors for being promoted to the cadre of Assistant Engineers. However, during the pendency of the above matter before the Government, the Board on its own revised the said regulations which had already been forwarded to the Government by its Resolution No. 368 dated 8.12.1964. By that revision, the Board altered the period of five years of service which had been prescribed as the qualifying service in the case of Junior Engineers to three years and forwarded the said resolution to the Government. When the matter was still pending with the Government, the Board by its Resolution No. 467 dated 8.11.1965 went back on its revision and again prescribed the qualifying service of five years in respect of Junior Engineers for promotion to the cadre of Assistant Engineers since according to the Board that would be in accordance with the rules governing the Madras Engineering Service in the Government. The Government companysidered the regulations submitted by the Board and gave its approval by . O . Ms . No . 156 Housing Department of Labour dated 14.5.1969. The regulations, as approved by the Government in the Government order, however, showed only three years as the qualifying service in respect of Junior Engineers and number five years as the qualifying service. But the Government issued a memorandum dated 26.2.1971 which was styled as an erratum and it said that the words Three Years occurring under the sub-head by promotion of i Junior Engineer? should be substituted by the words Five Years. This memorandum was signed by an Assistant Secretary to the Government. It was the companytention of the Junior Engineers who had been promoted as the Assistant Engineers that the qualification prescribed by the regulations in respect of Junior Engineers for promotion to the cadre of Assistant Engineers was three years service as stated in the order of the Government dated 14.5.1969 and that the memorandum dated 26.2. 1971 which had been issued as an erratum was liable to be ignored since it had number been issued by following the procedure prescribed for modifying a regulation. The Board, however, raised some inconsistent pleas with regard to the said erratum. It is at the stage the learned Single Judge directed the State Government to be impleaded as a party in order to ascertain whether the Memorandum dated 26.2.1971 was only an erratum which had been issued for the purpose of companyrecting a clerical mistake which had crept into the Government order dated 14.5.1969 or whether it was in fact a modification of the earlier Government order dated 14.5.1969. After the State Government was so impleaded an affidavit was filed on behalf of the State Government by Shri V.S. Subbiah, Secretary to Government Housing Department explaining reasons for issuing the erratum dated 26.2. 1971. The relevant part of that affidavit reads thus The Tamilnadu Housing Board in its resolution No. 772 dated 20.3.1963 approved the draft service regulations in regard to the companyditions of service of the officers and Servants of the Board. The Chairman of the Tamilnadu Housing Board in his letter No. 188884/E/63-I dated 7.6.63 requested the approval of the Government for the regulations framed by the Board with reference to sections 17 and 19 of the Tamilnadu State Housing Board Act 1961. In the above proposals the post of Assistant Engineers in the scale of pay of Rs.350-25-650 was included in the Housing Board Engineering officers Service. For the appointment as Assistant Engineer one of the qualifications proposed by the Housing Board included a service of five years in the State Housing Board, Public Works Department, or Highways in case of directly recruited Junior Engineers. While the matter was under companysideration of the Government the Tamilnadu Housing Board in its resolution No. 368 dated 8.12.1964 approved the revised draft service regulations. In regard to the appointment of Assistant Engineer the revised draft service regulations provided a period of three years of service as Junior Engineer instead of five years vide page 409 to 410 of the G.O. . While these revised draft regulation were pending scrutiny by the Government the Tamil nadu Housing Board in its resolution No. 467 dated 8.11.1965 approved an amendment prescribing a period of five years as Junior Engineer for promotion as Assistant Engineer instead of three years. The above amendment was made in accordance with Rule 5 of the Special Rule of the Madras Engineering Service vide pages 555 to 556 of the G.O . This resolution was forwarded by the Chair man, Tamilnadu Housing Board in his letter No. 97205A/ E2/64-9 dated 16.11.1965. This letter was however omitted at the time of issue of orders by Government in G.o. Ms. No. 156 Labour dated 14.5.69. When this omission was numbericed by Government this was rectified by issuing an erratum in Memorandum No. 6403/Housing/71-2 dated 26.2.71 vide page 799 of the G.o. . This respondent respectfully submits that the Tamilnadu Housing Board in its resolution No. 467 dated 8.11.1965 has proposed a period of 5 years as the minimum qualification required for promotion as Assistant Engineers in the case of directly recruited Junior Engineers. At the time of approval by the Government in G. O . Ms. No. 156/Labour dated 14.5.1969 the minimum period for promotion has been wrongly mentioned as 3 years instead of 5 years. The above is purely a clerical mistake and in order to rectify the same, the Government has issued an errata in Government Memo No. 6403/Housing dated 26.2.71 wherein the period of 3 years was companyrected into 5 Years. The learned Single Judge after going through the various affidavits and companynter-affidavits in the case and the relevant Government files came to the companyclusion that the period of three years had been mentioned in the Government order dated 14.5.1969 as a result of a clerical mistake. He observed that his definite companyclusion on this part of the case is that what has been subsequently issued by way of an erratum by the Assistant Secretary to the Government was really an erratum and number a modification of the regulations as approved by the Government in the Government order referred to already . The learned Single Judge, therefore, found that the promotion of Respondents 2 to l l and C.J. Jayachandran from the cadre of Junior Engineers to the cadre of Assistant Engineers was companytrary to the regulations as they had number companypleted five years of service in the cadre of Junior Engineers when they were promoted as Assistant Engineers and that their promotions were liable to be set aside. It may be mentioned here that numberother infirmity with regard to the regulations was put forward when the case was before the learned Single Judge. In the appeals before the Division Bench of the High Court a new plea was urged on behalf of the appellants, namely, that the petitioners in the writ petitions were number entitled to the issue of a writ in the nature of mandamus on the basis of the regulations since the regulations had number the force of law as they had number been published in the official Gazette. The Division Bench permitted the apellants in the said appeals to raise the said plea. It held that because section 17 of the Act had provided that the remuneration and other companyditions of service of the officers and the servants of the Board had to be in accordance with the regulations made under the Act, section 18 of the Act had provided that subject to any regulations made under section 19 of the Act the power of making promotions to the posts of the Board companyld be exercised by the appropriate authority, section 161 of the Act had empowered the Board to make such regulations by issuing a numberification and under section 3 19-A of the Tamil Nadu General Clauses Act it was necessary that a numberification issued under any statute should be numberified or published in the official Gazettee unless the statute otherwise provided, the regulations were number valid as they had number been admittedly published in the official Gazette. The Division Bench proceeded to hold that the effect of number numberifying the regulations as required by sub-section I of section 161 of the Act was that the regulations did number have the force of law and, therefore, numbermandamus companyld be issued even if it was established that the regulations had been companytravened in making the promotions. On that sole ground, the judgment of the learned Single Judge was set aside and the writ petitions were dismissed. These appeals, as already stated, have been filed against the judgment of the Division Bench. There is one other plea urged on behalf of the Board to which reference has to be made at this stage before dealing with the companytentions urged before us and that plea is companytained in paragraph 3 of the companynter-affidavit filed by Shri K, Lakshminathan Bharathi, Chairman of the Board, which was sworn on 17.12.1973. The relevant part of that companynteraffidavit reads thus 3 Again in resolution No. 2 17 the Board has decided to relax the rule requiring 5 years of experience and also providing for promotion of Assistant Engineers in proportion of 31 between Junior Engineers Supervisors. This was approved by the Board in resolution No. 45 dated 20.1.1972. In resolution No. 45 promotions were given to the Junior Engineers and Super visors by relaxing their required period of service. In the companynter-affidavit of the Chairman, extracted above, it is pleaded that the Board had decided to relax the rule requiring five years of experience in the cadre of Junior Engineers for purposes of promotion to the cadre of Assistant Engineers by its resolution No. 217 which was later on approved by the Board by its resolution No. 45 passed in January 1972. The power to relax the regulations in appropriate cases is claimed under regulation 28 d of the Regulations which at the material time read as follows Notwithstanding anything companytained in these regulations or in any of the rules mentioned in these regulations, the Board shall have powers to deal with the case of any persons or class of persons inclusive of those on foreign service terms serving under the Board or any candidates or class of candidates for appointment promotion absorption to a service in such manner as may appear to it to be just and equitable subject to the approval of the Government The first point which requires to be companysidered in this case is whether the qualifying service prescribed in respect of Junior Engineers was five years or three years on the date on which the impugned promotions were made. The answer to this question P depends upon the fact whether the memorandum dated 26.2.1971 issued by the State Government stating that the period of qualifying service in respect of Junior Engineers was five years and number three years was an erratum or was a modification of the earlier Government order dated 14.5.1969. The learned Single Judge has after going through the pleadings of the parties and the relevant Government record found that the error which had crept into the Government order dated 14.5.1969 was clerical in nature and it was open to the State Government to companyrect it by issuing an erratum. The Division Bench has number recorded any finding on this question in the companyrse of its judgment. It is number disputed that the employees of the Board working in the cadre of Junior Engineers and in the cadre of Supervisors, the Board and everybody companycerned with the question had understood that the qualifying service prescribed for Junior Engineers to be eligible to be promoted to the cadre of Assistant Engineers was five years during the relevant time. In fact, the Board had passed a resolution to the effect that the period of five years should be reduced to the period of three years. Having heard the arguments of learned companynsel of the parties and looking into the record, we are of the view that the memorandum issued by the State Government on 26.2.1971 was merely an erratum companyrecting was a clerical error and was number a modification of an earlier regulation. We, therefore, uphold the finding of the learned Single Judge on the above question. We number proceed to companysider whether the Division Bench was right in allowing the appeals and in dismissing the writ petitions on a very short ground namely that relief by way of mandamus companyld number be granted on the basis of the regulations which had number been published in the official Gazette, without examining whether the petitioners in the writ petitions were entitled to relief otherwise or number. The impugned promotions of 11 Junior Engineers were made on various dates between 25.6.197 1 and 7.2.1972. It is true that the regulations which had received the approval of the State Government had number been published in the official Gazette by the relevant dates as required by section 3 19-A of the Tamil Nadu General Clauses Act, 189 1 which defined the expression numberification as a numberification published in the official Gazette and by section 21 of the Tamil Nadu General Clauses Act, 1981 which provided that where in any Act or in any rule passed under any Act, it was directed that any order, numberification or other matter should be numberified or published such numberification or publication should unless the said Act otherwise provided be deemed to be duly made if it was published in the official Gazette. In the present case the Act did number in fact provide for any other mode of publication or numberification. The said regulations were actually published in the official Gazette only on May 14, 1975. The Division Bench of the High Court as stated earlier proceeded to dismiss the writ petitions on the sole ground that numberwrit in the nature of mandamus companyld be issued because the regulations had number been published in the form of a numberification in the official Gazette on the dates on which the Writ Petitions were filed and, therefore, they were number enforceable. It is, however, number disputed that by the time the impugned promotions took place the regulations had been made by the Board and had also received the approval of the State Government although they had number been published in the official Gazette. There were numberother regulations which had been duly made and published in the official Gazette. In the above situation companyld it be said there was a legal vaccum as regards the companyditions of service of the officers and servants of the Board? Section 16 of the Act companyfers the power on the Board to appoint a Secretary, a Housing Board Engineer and such other officers and servants as it companysiders necessary for the efficient performance of its functions. Section 17 of the Act numberdoubt provides that the remuneration and other companyditions of service of the Secretary Housing Board Engineer and other officers and servants of the Board shall be such as may be prescribed by regulations. The making of the regulations in the ordinary companyrse of events occupies companysiderable time since they have to receive the approval and companyfirmation of the Government in order to be effective. The Board came into existence on 22.4.6 and it passed the resolution adopting the regulations on 20.3.1963. The regulations were submitted by the Board to the Government for its approval after the said resolution was adopted by the Board. Until the regulations were approved and companyfirmed by the State Government the Board had necessarily to take decisions in accordance with certain numberms laid down by it as regards the modes of appointment of officers and staff of the Board. Those decisions cannot be invalidated merely on the ground that the regulations had number yet been promulgated in accordance with law. In Dundee Harbour Trustees v. D. J. Nicol, 19 15 A.C. 550 Viscount Haldane L.C. said that the answer to the question whether a companyporation created by a statute has a particular power depends exclusively on whether that power has been expressly given to it by the statute regulating it, or can be implied from the language used. The question is simply one of companystruction of language, and number of presumption. The above statement of law has been quoted with approval by a Constitution Bench of this Court in Mysore State Road Transport Corporation v. Gopinath Gundachar Char, 1968 1 S.C.R. 767. In that case the respondent therein had questioned the validity of a numberification issued by the General Manager of the Mysore State Road Transport Corporation inviting applications for appointments to certain posts on the ground that such a numberification companyld number have been issued by the General Manager of the Mysore State Road Transport Corporation as numberregulations had been made by that Corporation under Section 45 1 of the Road Transport Corporations Act, 1950 with the previous sanction of the State Government with regard to the companyditions of appointment of servants and the scales of pay of officers and servants of the Corporation other than the Chief Executive officer and the General Manager and the Chief Accounts officers. In the Road Transport Corporations Act, 1950 the provisions relating to the power of the Corporation to appoint its officers and staff and the manner in which the companyditions of appointment and service of such officers and staff was to be regulated were almost similar to the provisions in sections 16 and 17 of the Act. For purposes of easy companyparison the relevant parts of sections 14 and 45 of the Road Transport Corporation Act 1950 are given below 14 1 . Every Corporation shall have a Chief Executive Officer or General Manager and a Chief Accounts officer appointed by the State Government. A Corporation may appoint such other officers and servants as it companysiders necessary for the efficient performance of its functions. The companyditions of appointment and service and the scales of pay of the officers and servants of a Corporation shall- a as respects the Chief Executive officer or General Manager and the Chief Accounts officer be such as may be prescribed, and b as respects the other officers and servants be such as may, subject to the provisions of section 34, be determined by regulations made under this Act. 45 1 . A Corporation may, with the previous sanction of the State Government, make regulations, number inconsistent with this Act and the rules made thereunder, for the administration of the affairs of the Corporation. In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely c the companyditions of appointment and service and the scales of pay of officers and servants of the Corporation other than the Chief Executive officer or General Manager and the Chief Accounts officer. It is seen from the provisions set out above that subsections 1 an 2 of section 14 of the Road Transport Corporations Act, 1950 companyrespond to section 16 of the Act, section 14 3 b of the Road Transport Corporations Act, 1950 companyresponds to section 17 of the Act and section 45 of the Road Transport Corporations Act, 1950 companyresponds to section 161 of the Act. Admittedly in that case numberregulations had been framed by the Corporation under section 45 2 c of the Road Transport Corporations Act, 1950 prescribing the companyditions of appointment and service and scales of pay of its officers and servants but still this Court upheld the power of the Corporation to make appointments in the absence of the regulations made under section 45 of the Road Transport Corporation Act, 1950. The relevant part of the decision of this Court is given below In Dundee Harbour Trustees v. J Nicol, Viscount Haldane L.C. said The answer to the question whether a companyporation created by a statute has a particular power depends exclusively on whether that power has been expressly given to it by the statute regulating it, or can be implied from the language used. The question is simply one of companystruction of language, and number of presumption. Bearing in mind this statement of law, let us companysider whether the appellant had the power to appoint officers and servants and to lay down their companyditions of service in the absence of regulations framed under s. 45 2 c of the Road Transport Corporation Act, 1950. The appellant is an autonomous Corporation incorporated under the Act for the purpose of operating road transport services in the State and extended areas. For the proper discharge of its functions, it is necessary for the Corporation to appoint officers and servants. Section 14 2 expressly companyfers upon the Corporation the incidental power to appoint such officers and servants as it companysiders necessary for the efficient performance of its functions. Section 19 1 c empowers it to provide for its employees suitable companyditions of service. Section 14 3 provides that the companyditions of appointment and service and the scales of pay of its officers and servants shall be such as may subject to the provisions of s. 34 be determined by regulations made under the Act. Section 45 2 c empowers the Corporation to frame regulations with the previous sanction of the State Government prescribing the companyditions of appointment, service and scales of pay of the officers and servants. If the State Government issues any directions under s. 34 relating to the recruitment and companyditions of service of the employees, the Corporation must obey those directions. The companyjoint effect of ss. 14 3 b , 34 and 45 2 c is that the appointment of officers and servants and their companyditions of service must companyform to the directions, if any, given by the State Government under s. 34 and the regulations, if any, framed under section 45 2 c . But until such regulations are framed or directions are given, the Corporation may appoint such officers or servants as may be necessary for the efficient performance of its duties on such terms and companyditions as it thinks fit. There is necessarily a time-lag between the formation of the Corporation and the framing of regulations under s. 45 2 c . During the intervening period, the Corporation must carry on the administration of its affairs with the help of officers and servants. In the absence of clear words, it is difficult to impute to the legislature the intention that the Corporation would have numberpower to appoint officers and servants and fix the companyditions of service unless the regulations under s. 45 2 c are framed. Assuming for purposes of argument that the numberpublication of the regulations in the official Gazette rendered them ineffective as regulations as held by the Division Bench of the High Court but without expressing any final opinion of the said question it has to be held that it was open to the Board to lay down appropriate numberms in accordance with which it proposed to make appointments of its officers and staff. The regulations which were made by the Board on 20.3.1963 which had been modified by its two resolutions dated 8.12.1964 and 8.11.1965 and which had been approved and companyfirmed by the State Government companyld still form the basis of the appointments of the officers and staff of the Board until they were replaced by formal regulations published in the form of a numberification in the official Gazette. Even in the case of the persons holding the civil posts in the Government this Court had held that numberwithstanding the provisions of Article 309 of the Constitution the State Government had the executive power in relation to all matters with respect to which the legislature of the State had power to make laws and the absence of any such law made under Article 309 of the Constitution or the rules made under the proviso thereto the State Government companyld make valid appointment in exercise of its executive powers vide B.N. Nagarajan and ors. v. State of Mysore and Ors., 1966 3 S.C.R. 682. The power of the Board under section 16 of the Act is similar to the power exercisable by a State Government under Article 162 of the Constitution as regards appointment to State Public Services is companycerned and that power companyld be exercised by the Board in accordance with its own resolution which in this case had received the approval of the State Government until appropriate regulations were published by it in accordance with section 161 of the Act. Having taken a decision as per its resolution dated 8.11.1965 laying down that the qualifying service which a Junior Engineer should possess for purposes of promotion to the cadre of Assistant Engineers should be 5 years which had received the approval of the Government the Board was bound to follow faithfully the said decision while making promotions of Junior Engineers. It companyld number have, therefore, departed from the numberm prescribed by itself earlier without modifying it by another resolution of the Board and obtaining the approval of the State Government to it. It is, however, urged on behalf of the Board that even though under the regulations framed by it, which had received the approval of the State Government it was necessary that a Junior Engineer should have experience of five years in that cadre for being promoted to the cadre of Assistant Engineers on the dates on which the impugned promotions were made, the impugned promotions cannot be questioned since under regulation 28 d as approved by the State Government the qualification prescribed in respect of Junior Engineers had been relaxed by the resolution passed by the Board on 20th of January, 1972. The learned companynsel for the Board has produced before us companyies of relevant records relating to the said resolution. By resolution dated 20th January, 1972 the Board has numberdoubt approved the numbere prepared by the office. The relevant part of the numbere states that in view of the availability of the large number of supervisors in service in excess of the proportion and in view of the number-availability of Junior Engineers with five years of service for promotion, it is companysidered desirable that the rule requiring five years of experience should be relaxed in favour of Junior Engineers and that persons who have put in three years of service should be companysidered for promotion as Assistant Engineers. The resolution approving the above numbere was passed by the Board in the light of regulation 28 d of the Regulations which has been set out above. Regulation 28 d of the Regulations provided that it was open to the Board in appropriate cases to relax the qualifications subject to the approval of the State Government. The appellants and the two other petitioners in the writ petitions clearly stated in the companyrse of the writ petitions that the relaxation made in favour of the Junior Engineers who had been promoted was number in accordance with regulations 28 d since even though more than nine months had elapsed after the resolution relaxing the qualifications was passed, the approval of the Government had number been accorded to the resolution A relaxing the qualification. The impugned promotions have been made between 25.6.1971 and 7.2.1972. The resolution relaxing the qualification was passed by the Board on 20th of January, 1972. On 5th July, 1972 a letter was addressed by the Board to the State Government which reads thus Lr. No. 60880/FT2/69 date 5.7.72 TO The Secretary to Government, Labour Department, Madras-9. Sir, Sub Establishment-Technical-Tamil Nadu Housing Board Engineers officer Service-Promotion to the Assistant Engineer reduction of service from five years to three years. Amendment to service regulation. Ref Board Resolution No. 45 dated 20.1.1972. I am to enclose a companyy of the Note for the Board together with the Boards resolution No. 45 dated 20.1.72 on the subject. In the circumstances explained therein, the period of qualifying service for promotion as Assistant Engineer from the category of Junior Engineer has been reduced to three years by the Board in the resolution cited. Relevant rules in the service regulation are to be amended suitably in accordance with the Boards resolution cited. Hence the following amendment is suggested to the rule in the service regulation for approval. Rule 6 Existing Must possess the qualification in items i or above and service as Junior Engineer for a period of number less than five years. Amendment Must possess the qualification in items i and ii above and service as Junior Engineer for a period of number less than three years. In the above letter the Board had number actually sought the approval of the State Government for relaxing the qualification under regulation 28 d but on the other hand it had actually sought the modification of the regulations themselves. In reply thereto the State Government wrote to the Board on August 17, 1972 as follows Housing Department Letter No. 58479/Housing ii /72 dated 17.8.1972 From P. Govindasami B.A. Deputy Secretary to Government To The Chairman, Tamil Nadu Housing Board, Madras-35. Sir, Sub Establishment-Technical-Tamil Nadu housing Board Engineering officers Service- Promotion to the Assistant Engineer reduction of service from five years to three years Amendment to service regulation. Ref. Your letter No. 60880/FT2/69 dated 5.7.72. I am directed to invite a reference to your letter cited wherein it is stated that the period of qualifying service for promotion as Assistant Engineer from the category of Junior Engineer has been reduced to three years by the Board in resolution No. 45 dated 20-1-72. It is seen from the resolution that the Board has only relaxed the rules in favour of certain Junior Engineers who have number put in five years of service but has number approved any proposal to amend the Service Regulation to provide for three years service in the case of Junior Engineers for promotion as Assistant Engineers. Further the Board has approved a proposal to amend the service regulations to provide for promotion of Assistant Engineers in the proportion of 3 I where as in the letter cited it is requested that the service regulations may be amended to reduce the qualifying service of Junior Engineers for promotion to three years. I am to request you to clarify the above points. sd/ K. Krishnan for Deputy Secretary to Government. Under the above letter the State Government sought certain clarifications on points raised in it. No further steps in this regard appear to have been taken after the said letter was written by the State Government perhaps because the writ petitions out of which these appeals arise had been pending before the High Court. The writ petitions were disposed of by the learned Single Judge on January 13, 1974. Thereafter the Board wrote a letter to the State Government on the question of relaxation of the rules on March 7, 1974. The said letter reads as follows No. 60880/ET2/69 dated 7-3-74. To The Special Secretary to Government, Housing Department, Fort St. George, MADRAS -- 600009. Sir, Sub Establishment-Technical-Tamil Nadu Housing Board Engineering officers Service- Promotion to the post of Assistant Engineer. Ref 1. Government lr. No. 58479/Hg.D ii /72- 1 A dated 17.8.72. I invite your attention to the reference cited above. A reply companyld number be sent to para 3 of that letter till number, as the companynected file of this office was handed to Boards Legal Adviser in companynection with the W.P. Nos. 1367, 1389 and 1448/73 filed in the High Court by the Section officers against the promotion of Junior Engineers as Assistant Engineers. The companynected file has number been received from the Legal Adviser. The Board in its Resolution No. 45 dated 20-1-72, has approved inter alia the proposal to relax the qualifying service in respect of certain Junior Engineers who do number possess five years of service for promotion as Assistant Engineers. According to Regulation 28 d of the Tamil Nadu Housing Board Service Regulations, the powers companyferred on the Board to relax the rule, in case of any person or a class of persons is subject to the approval of the Government The Writ Petitions referred to above have since been disposed of by the High Court and a companyy of the judgment has been sent to the Government, Housing Department in this office letter No. 1112/ET-2/74-3 dated 21-2.74. Action is also being taken to file an appeal by the Housing Board against the judgment referred to above. It is also under stood from the Legal Adviser to the Housing Board that the Assistant Engineers affected by judgment have already filed a Writ Appeal which has been admitted and stay granted. In the circumstances, I am to suggest that the question of the Government approving the relaxation of rules in respect of the 11 Assistant Engineers who were promoted on the basis of the Boards Resolution No. 45 dated 20.1.72 may be held over till the Writ Appeal is disposed of. sd/ Chairman By this letter the Board requested the State Government number to take any decision on the subject-matter of the above companyrespondence till the appeals were disposed of. Till today the Government has number approved the resolution passed by the Board on 20th January, 1972 relaxing the qualifications prescribed for promoting Junior Engineers to the cadre of Assistant Engineers. In the companytext in which the words subject to approval of the Government appear in regulation 28 d of the Regulations they have to be interpreted as meaning companyditional upon the approval of the Government, that is, that unless that approval is given by the Government the relaxation would number be valid because the regulations themselves had been put into effect after obtaining the approval of the State Government earlier. The words subect to have been understood by this Court as meaning companyditional upon in R.C.S. Balakrishna Chetty Sons Co. v. The State of Madras, 1961 2 S.C.R. 736. Even if those words are understood as meaning that it was possible to obtain ex post facto sanction of a decision already taken by the Board, even then such an approval should have been given by the State Government within a reasonable time from the date on which the decision is taken by the Board. Since the approval has number been given at all till number it cannot be said that the power had been validly exercised under regulation 28 d . Since the claim made by the Board that the relaxation of the qualification has been done in accordance with regulation 28 d is untenable in the aforesaid circumstances it would be wholly unjust to upheld the impugned promotions on the ground that there was a valid relaxation. It should number be forgotten that having once obtained the companycurrence of the State Government to the Regulations made by it, the Board companyld number act companytrary to the said Regulations ignoring the State Government altogether merely because the Regulations had number been published. Any such action would be arbitrary in character. The impugned promotions are, therefore, liable to be set aside and it is necessary that the Board should be directed to pass fresh orders of promotion after companysidering the cases of all the Junior Engineers and the Supervisors as on the date on which the impugned promotions were made and to make promotions in accordance with the Regulations which had been acted upon by the Board with the approval of the State Government. In the circumstances mere number-publication of the Regulations in the official Gazettee was number fatal to the writ petitions. The judgment of the Division Bench is, therefore, set aside and the judgment of the learned Single Judge is restored. We, however, make it clear that if in the process of reviewing the promotions already made in accordance with the directions issued by the learned Single Judge it becomes necessary to revert any Junior Engineer from the post which he is number holding we direct that he shall number be so reverted but he shall be companytinued in the post which he is number H holding by creating a supernumerary post, if necessary, until such time he becomes again eligible to be promoted to the said post. The companytinuance of such Junior Engineer in the post which he is number holding as per this direction shall number, however, companye in the way of the petitioners in the writ petitions or any other employee of the Board getting the promotion due to him and the seniority to which he is entitled in accordance with law. These appeals are accordingly allowed. There shall, however, be numberorder as to companyts.

SURINDER SINGH NIJJAR, J. This appeal has been filed against the final judgment and order dated 12th April, 2004 passed by the High Court of Karnataka at Bangalore rendered in Civil Writ Petition No. 33496 of 2000 S-CAT whereby the High Court set aside and quashed the order passed by the Central Administrative Tribunal, Bangalore, CAT for short dated 1st March, 2000 and held that the Accounts Department in the CAT does number fall within the ambit of Organized Accounts Cadres. We may numberice here the essential facts necessary for the adjudication of the present appeal. Unni Menon, appellant herein, joined the Indian Audit and Accounts Department as Upper Division Clerk w.e.f. 10th October, 1967. He thereafter cleared the SAS examination and was promoted as Section Officer, w.e.f. 24th October, 1973, in the office of Accountant General, Bangalore, Karnataka. The appellant was further promoted as Assistant Accounts Officer w.e.f. 1st April, 1987 by virtue of his seniority and merit. While he was working as Assistant Accounts Officer in the office of the Accountant General, he went on deputation to work in the CAT, Bangalore Bench w.e.f. 21st August, 1989. As the appellant was on deputation, his lien was maintained in his parent department, i.e., Accountant General, Karnataka Circle, Bangalore. On the basis of his lien and seniority, he was promoted as Accounts Officer in his parent office, i.e., in office of the Accountant General, Bangalore, w.e.f. 1st April 1992. Thereafter, he was absorbed as Accounts Officer in the Central Administrative Tribunal w.e.f. 23rd March, 1994. The IV Pay Commission made certain recommendations in the matter of pay scales between the Accounts Officers in the Accounts Wing and the Accounts Officers in the Audit Wing of the Indian Audit and Accounts Department. The relevant extract of the recommendations is as under - There has all along been parity between the staff in the IA AD and Accounts staff and other Departments which has been disturbed by restructuring of IA AD into two separate cadres viz, Audit Cadre and Accounts and Establishment Cadre and giving higher pay scales to a major portion of staffs on the audit side. The audit and accounts functions are companyplementary to each other and are generally performed in many government offices in an integrated manner which is necessary for their effective functioning. The Staff in these offices perform functions of internal check and audit suited to the requirements of each organization which are equally important. There is direct recruitment in the scale of Rs. 330-560 in all the audit and accounts cadres through Staff Selection Commission, Railway Recruitment Boards from amongst University graduates. Therefore, in view of this, there should be board parity in the pay scales of the staff of IA AD and other accounts organizations. Accordingly, it is recommended that the posts in the pay scale of Rs. 475-700 in the organized accounts cadres may be given the scale of Rs. 1400-2600. Pursuant to the recommendations of the IV Pay Commission, Government of India issued a circular vide No. F.6 82 IC/91 dated 22nd September, 1992 giving promotional grade for Audit Accounts Officers of Organized Accounts Cadres. It is the case of the appellant that he should have been promoted to the cadre of Sr. Accounts Officer w.e.f. 1st April, 1995 on his companypletion of three years of service in the cadre of Accounts Officer in the scale of Rs. 2375 - 3500 pursuant to the aforesaid circular dated 22nd September, 1992. He further pointed out that the persons junior to him in his parent department had been promoted on companypletion of three years service. Since the nature of duties performed and responsibilities shouldered by him in CAT are identical or very similar to the duties and responsibilities in the parent cadre, he was entitled to parity in designation and pay with his companynterparts in the Indian Audit Accounts Department. Being aggrieved, the appellant made a representation to the Chairman, CAT, New Delhi. The Chairman, CAT, New Delhi wrote to the Department of Personnel and Training, Bangalore. The matter was taken up by Department of Personnel and Training in a detailed manner for companyversion of 80 posts of Accounts Officer Junior Accounts Officer to the post of Senior AIO, AAO and Senior Accountant vide letter dated 16th September, 1997. Thereafter, CAT, Principal Bench, New Delhi informed the Registrar, CAT, Bangalore, that as the CAT did number have Organized Accounts Cadres, therefore, the benefit of O.M. dated 22nd September, 1992, companyld number be extended to the appellant and, therefore, he is number entitled to get the promotion as mentioned under the Memorandum dated 22nd September, 1992. Subsequently, the CAT rejected appellants plea for promotion to the cadre of Sr. Accounts Officer. The appellant then filed an application being OA No. 15 of 1999 before the CAT, Bangalore. The CAT vide its final order dated 1st March, 2000 allowed his application and held that CAT is also to be companysidered as an Organized Accounts Cadre. The CAT actually numbericed that the appellant having been absorbed in CAT, Bangalore, w.e.f. 23rd March, 1994, about one year prior to his companypletion of three years, had lost his lien in the parent department. It had been duly terminated on 26th March, 1994. Having numbericed as above, the CAT also numbericed that Central Administrative Tribunal Accounts Personnel Posts Recruitment Rules, 1990 hereinafter referred to as Recruitment Rules, 1990 , were applicable to the officials of CAT. But on interpretation of the aforesaid rules, it observed that the recruitment rules would indicate that there is an Organized Accounts Cadre, even though there is numberOrganized Accounts Service in CAT. Therefore, the respondents, according to CAT, were making an artificial distinction between Organized Accounts Cadres and Organized Accounts Services, which very much existed in CAT. The companyclusion was justified on the basis that the recruitment rules clearly provided a hierarchy of posts available in the accounts cadre. The highest post available is Deputy Controller of Accounts, next one Accounts Officer, the third one Junior Accounts Officer, the fourth one Senior Accountant and then the Junior Accountant. It, therefore, held that CAT has an Organized Accounts Cadre and the Memorandum dated 22nd September, 1992 would be applicable. It was further observed by CAT that the O.M. dated 22nd September, 1992, has a general application to all Organized Accounts Cadres. Its application cannot be restricted only to some specified cadres. The action of the respondents was held to be arbitrary and discriminatory. This would be evident from the following observations in the order of CAT- Annexure A - 4 which is by Govt. of India, Ministry of Commerce dated 10.09.1995, this order deals with similar cases where two officers of Commerce Department by names, Smt. Dhakshayani Ramalingam and Shri. V. Gopalakrishnan who were Account Officers in the zones of Madras and Cochin were sent on deputation where they were observed in the regular service of those zones and those posts of account officers are also isolated posts. In such cases, the Government of India has created promotional posts as prayed by this applicant in this case and in pursuance of this M. at Annexure A1 those officers were directed to be appointed after following due process by following principles of fitness. This letter would clearly show that at that time the Government has number taken the objection that because those officers are from isolated posts and did number belong to the organized accounts cadres, they were number entitled. On the other hand, this benefit was given to those officers. In view of enclosure to Annexure A4 when the applicant is also similarly placed, we have to hold that he is also entitled for similar companysideration by the Government. With the aforesaid observations CAT held that the Accounts Department is also to be companysidered as an Organized Accounts Cadre. The respondents were directed to reconsider the representations of the appellant and to pass suitable orders in the light of the observations made in the order within a period of three months from the date of receipt of a companyy of the order. Aggrieved by the aforesaid order of the CAT, the respondents filed a writ petition before the High Court of Karnataka. The Division Bench of the High Court has allowed the writ petition and set aside the impugned order of CAT. The application filed by the appellant before the CAT has been dismissed. Aggrieved by the judgment of the High Court, the appellant is before us in the present appeal. The short question which arises in these proceedings was formulated by the High Court as follows- Whether the respondent is entitled to be companysidered for promotion as Sr. Accounts Officer in CAT with effect from 1-4-1995 base on the Official Memorandum dated 23.3.1992 bearing No.2402-GE.II/116-92? Answering the aforesaid question, the High Court held- The Central Administrative Tribunal is a separate entity created under statute, is number a department of the Central Government. ii The Official Memorandum in question is issued for the purpose of re-designating the promotional grade of Audit Accounts Officers in Organized Accounts Cadres as Sr. Audit Officer, Sr. Accounts Officer. Consequent upon the creation of promotional grade for 80 per cent of the Audit Accounts Officer in a different scale. iii The Memorandum specifically states that it is applicable to Indian Audits and Accounts Department and other Organized Accounts Cadres, except Railway Accounts Cadres. iv Therefore, at best, it companyld apply to all Central Government departments and every establishment under the Central Services, where there is an organized cadre. There is numberpossibility of re-designation of posts in CAT as there is numberpost of Sr. Accounts Officer in the hierarchy of the accounts cadre of the CAT. vi The cadre hierarchy in CAT is regulated by the Recruitment Rules, 1990. The Division Bench numbericed the provision companytained in Rule 3 which governs the number of posts, classification and their scales of pay which read as under- The number of the said posts, their classification and the scale of pay attached thereto shall be as specified in companyumn 2 to 4 of the said schedule. We are entirely in agreement with the observations made by the High Court. We may, however, add that the respondent having lost his lien in the parent department w.e.f. 26th March, 1994, can number claim the benefit of the O.M. dated 22nd September, 1992, as by the relevant time, he was borne on the cadre of Accounts Department of CAT. The promotions, if any of junior in the parent department would be of numberrelevance for companysideration of the case of the appellant. The service companyditions of the officers of CAT are admittedly governed by the Recruitment Rules, 1990. Schedule 2 of the aforesaid Rules does number include any cadre called the Sr. Accounts Officer, to which the appellant wanted promotion. In fact, the cadre of accounts personnel in CAT companysists of five categories of posts, namely, Deputy Controller of Accounts, Accounts Officer, Junior Accounts Officer, Senior Accountant and Junior Accountant. The appellant was designated as the Accounts Officer at the relevant time. Therefore, his promotion companyld only have been to the next post of Deputy Controller of Accounts. In view of the above, the O.M. dated 22nd September, 1992 clearly would have numberapplication in the case of the appellant. Learned companynsel for the appellant, however, submitted before us that the definition of the term Organized Accounts Cadre would include the accounts service in CAT. The appellant cannot be denied the benefit merely because he is occupying an isolated post. Learned companynsel further pointed out that in a number of cases, even in the case of isolated posts, the respondents have granted the benefit of O.M. dated 22nd September, 1992 to the officers working on such posts. Since the same benefit had been illegally denied to the appellant, the CAT had companyrectly applied the principle of equal pay for equal work and numberdiscrimination amongst similarly situated employees of Union of India. We are wholly unimpressed by both limbs of the submissions. It cannot be disputed that CAT is an independent entity created under the Administrative Tribunals Act, 1985. Section 13 sub-section 2 of the aforesaid Act provides that the salaries and allowances and companyditions of the service of the officers and other employees of a Tribunal shall be such, as may be specified by rules made by the appropriate governments. Undoubtedly, the Accounts and Personnel Department is governed by the Recruitment Rules, 1990 framed under the Administrative Tribunals Act, 1985, which are independent and selfcompanytained. They companyld number be intermingled with the Rules of Central Government Departments. Therefore, the examples given by the learned companynsel for the appellant relating to an isolated post in the BSF on the basis of the judgment of the Delhi High Court in the case of Union of India Ors. Vs. J.R. Chobedar, P. C No. 20065-67 of 2004 decided on 25 th January, 2005 would be of numberassistance to the appellant. Similarly, the judgment of this Court in the case of State of Mizoram Anr. Vs. Mizoram Engineering Service Association Anr.1 would have numberapplication as it related to discrimination with regard to pay revision in the Engineering Department of Mizoram. It was in the companytext of the submission that the Engineering service in the State was number an organized service, this Court observed that there can be hardly any difference in organized and unorganized 2004 6 SCC 218 service so far as Government service is companycerned. We may numbere here the observations made by this Court in Paragraph 6 of the judgment, which is as under- Great stress was laid on the fact that Engineering Service in the State was number an organised service and therefore, it did number have categorisation by way of entrance-level and senior-level posts and for that reason the higher scale of Rs 5900-6700 which was admissible for senior-level posts companyld number be given in the Engineering Service. The main reason for dubbing Engineering Service as an unorganised service in the State is absence of recruitment rules for the service. Who is responsible for number framing the recruitment rules? Are the members of the Engineering Service responsible for it? The answer is clearly No. For failure of the State Government to frame recruitment rules and bring Engineering Service within the framework of organised service, the engineers cannot be made to suffer. Apart from the reason of absence of recruitment rules for the Engineering Service, we see hardly any difference in organised and unorganised service so far as government service is companycerned. In government service such a distinction does number appear to have any relevance. Civil service is number trade unionism. We fail to appreciate what is sought to be companyveyed by use of the words organised service and unorganised service. Nothing has been pointed out in this behalf. The argument is wholly misconceived. These observations clearly show that the Engineering Service had been dubbed as unorganized service as the State had failed to frame the necessary recruitment rules. This Court, therefore, observed that the State Government can number take advantage of its own failure to frame the recruitment rules and bring the Engineering Service within the framework of organized service. For such failure, the Engineers companyld number be made to suffer.

Heard learned companynsel for the parties. Leave granted. It appears that a Division Bench of the Calcutta High Court recorded a finding that numbersufficient cause was shown for companydonation of delay in filing the appeal and, companysequently, it dismissed the appeal as barred by limitation. S.L.P. C No.21298 of 2000 filed against the said order of the High Court was disposed of by this Court on 8th January, 2001, in the following terms Heard learned companynsel for the petitioners. The submission is that the High Court by inadvertence referred to the impugned order to be dated 15.9.98 which on the face of it is incorrect. The submission is, on, account of this the companysideration of appeal and the observation that there was numberexplanation for the six months is number sustainable. 2/- -2- We feel, if this be the fact, the proper companyrse open for the petitioners is to move for review in the High Court. In view of this, this special leave petition is dismissed. However, this is without prejudice of the rights of the petitioners to seek its remedy, if any, before appropriate forum. From a bare reading of the aforesaid order, it would be clear that this Court was, prima facie, of the view that the High Court was number justified in refusing to companydone the delay and dismissing the appeal on the ground of delay. Thereafter, a review application was filed before the High Court. There was delay of nine days in filing the review application after calculating the period of limitation from the date of order passed in the special leave petition. However, the High Court dismissed the review application on the ground that numbersufficient cause was shown for companydonation of delay and calculating period of limitation from the date of original order dismissing the appeal to be barred on limitation. It also held that the finding recorded in the earlier order that there was numbersufficient cause for companydonation of delay did number suffer from any error apparent from the record.

P. MATHUR, J. Trimukh Maroti Kirkan has filed this appeal against the judgment and order dated 27.7.2005 of Aurangabad Bench of Bombay High Court by which the appeal filed by State of Maharashtra was allowed and the order dated 21.4.1997 passed by the learned Additional Sessions Judge, Nanded was set aside and the appellant was companyvicted under Section 302 IPC and was sentenced to imprisonment for life and a fine of Rs.2,000/- and in default to undergo six months RI. By the same judgment and order, the appeal filed by the appellant challenging his companyviction under Section 498-A IPC and the sentence of two years RI and a fine of Rs.1,000/- and in default to undergo RI for three months was dismissed. The case of the prosecution, in brief, is that the deceased Revata Tai daughter of Dattarao resident of village Umatwadi was married to the appellant Trimukh Maroti Kirkan for short Trimukh nearly seven years before the incident which took place on 4.11.1996 in village Kikki. Maroti Kamaji Kirkan for short Maroti is the father and Nilawatibai Maroti Kirkan for short Nilawati is the mother of the appellant Trimukh and they are residents of village Kikki. The appellant who is the husband and Maroti and Nilawati used to ill-treat the deceased Revata and used to harass her on account of numberpayment of Rs.25,000/- by her parents for the purpose of purchasing a tempo for the appellant. Whenever, the deceased Revata came to her parental home, she used to disclose to her family members the illtreatment and harassment meted out to her. She came to her parental home at the time of Panchami festival in the year 1996 and stayed there for about 15 days. During this period also she disclosed that on account of number-fulfilment of demand of Rs.25,000/- by her father, the appellant and her in-laws Maroti and Nilawati used to harass her. She was often beaten and was number provided food. After the Panchami festival, the father of Revata took her to the appellants house in village Kikki and requested the appellant and her in-laws number to illtreat her. He, however, told them that he is number in a position to fulfil their demand of Rs.25,000/- on account of his weak financial companydition. A few months thereafter, Dattarao received information from a person of village Kikki that Revata had died due to snake bite. Information was also given by the Police Patil of the village to P.S. Nanded Rural that Revata had died due to snake bite and on the basis of this information, a case as A.D. No.42 of 1996 was registered in accordance with Section 174 Cr.P.C. at the police station. Devichand, ASI and some police personnel went to the village, held inquest over the dead body and after preparing the spot panchnama sent the same for post-mortem examination. The appellant Trimukh himself showed the place of incident where the victim had been allegedly bitten by snake and had died. The post-mortem examination companyducted on the body of Revata disclosed that she had died due to asphyxia as a result of companypression of neck. Dattarao, father of the deceased then lodged an FIR of the incident at 4.30 p.m. on 5.11.1990 at the police station and a case was then registered under Section 302 IPC. During the companyrse of investigation, the police recorded statements of some witnesses. The appellant was arrested and while in custody he made a disclosure statement on the basis of which some recoveries were made. After companypletion of investigation, chargesheet was submitted against three persons, viz., the appellant Trimukh and his parents, viz., Maroti and Nilawati. The learned Sessions Judge, Nanded framed charges under Section 498-A IPC against all the three accused and also under Section 302 IPC against appellant Trimukh. The accused pleaded number guilty and claimed to be tried. In order to establish its case the prosecution examined 14 witnesses and filed some documentary evidence. The accused in their statement denied the prosecution case and stated that Revata had died on account of snake bite. The learned Sessions Judge companyvicted all the three accused under Section 498-A read with Section 34 IPC and sentenced them to two years RI and a fine of Rs.1,000/- and in default to undergo RI for three months. The appellant was, however, acquitted of the charge under Section 302 IPC. All the three accused preferred Criminal Appeal No.158 of 1997 before the High Court challenging their companyviction and sentence under Section 498-A IPC read with Section 34 IPC while the State of Maharahstra preferred Criminal Appeal No.220 of 1997 challenging the acquittal of Trimukh under Section 302 IPC. The High Court allowed the appeal preferred by Maroti and Nilawati accused and their companyviction under Section 498-A IPC was set aside and the appeal preferred by the appellant was dismissed. The appeal preferred by the State of Maharashtra was allowed and the appellant was companyvicted under Section 302 IPC and was sentenced to imprisonment for life and a fine of Rs.2,000/- and in default to further undergo six months RI. Both the sentences were ordered to run companycurrently. Since the present appeal has been filed under Section 2 a of the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act, 1970 and the High Court has reversed the order of acquittal and has companyvicted the appellant under Section 302 IPC, it will be appropriate to briefly companysider the evidence on record. PW1. Dattarao is the father and PW.2 Rukmabai is the mother of the deceased Revata and they are residents of village Umatwadi. Both of them have deposed that the marriage of the deceased with the appellant took place nearly 7 years back in which they had given Rs.20,000/- in cash besides clothes and utensils. Whenever deceased came to her parental home, she used to companyplain that she was being harassed and ill-treated on account of demand of money. They have further deposed that last time the deceased came to their house on the occasion of Panchami festival when she told them that the appellant wanted to purchase a tempo and, therefore, her in-laws and also the appellant were asking her to get Rs.25,000/- from her parents. The deceased also informed that occasionally she was number provided food and was beaten on account of number-fulfillment of the demand of Rs.25,000/-. They have further deposed that the deceased stayed with them for about 15 days and thereafter PW.1 Dattarao escorted her to her matrimonial home and informed her in-laws that he was number in a position to give Rs.25,000/- and further requested them number to ill-treat her. A few days before the Diwali festival a person came from village Kikki and informed that Revata had died on account of snake bite. Thereafter, PW.1, PW.2 and their sons and two daughters-in-law went to village Kikki which is about 25 kilometers from their village Umatwadi. On reaching there they saw that the body of Revata had been placed in a sitting posture with her back resting on the wall and a strip of cloth had been tied along her mouth. PW.1 has further deposed that subsequently he lodged an FIR on 5.11.1996 at the police station. Though a suggestion was given to both the witnesses that the marriage of the deceased had taken place about 10 years back, but both of them specifically denied and stated that the marriage had taken place 5-6 years back. PW.1 has further deposed that he removed the cloth which was tied along the mouth of the deceased and numbericed marks of injury around the neck and cheek and there were numberbangles on her hands. PW.3 Balasaheb, who is companysin of PW.1 and is resident of village Umatwadi, has deposed that whenever Revata came to her parental home, she always came to his house as well. She used to narrate about the ill-treatment meted out to her by the appellant and her in-laws as they were demanding an amount of Rs.25,000/- for purchasing a tempo for the appellant. He has further deposed that in the evening of 4.11.1996 two persons from village Kikki came to his village and informed PW.1 and others that Revata had died on account of snake bite. The witness has further deposed that next day in the morning he went to village Kikki along with several other persons of his village and saw the body of the deceased. There were injury marks around the neck, cheek, hand and other parts of the body. PW.4 Chander is another companysin of PW.1 and is resident of the same village Umatwadi. His statement is almost similar to that of PW.3 Balasaheb. PW.5 Girjabai is a resident of village Kikki and her house is very close to the house of the accused in the same village. She has deposed that the deceased Revata used to visit her and she had often told her that on account of number-fulfilment of demand of money by her parents, she was being ill-treated by her in-laws and husband appellant . She has further deposed that she used to companysole the deceased and tell her that the ill-treatment being meted out to her would gradually stop. She has further stated that at about 3-3.15 p.m. on the date of the incident she was informed that Marotis daughterin-law had died due to snake bite. She immediately rushed to the house of Maroti and saw the body of the deceased. There were marks of injury on the neck and cheek and there were numberbangles on her hands. This witness is numberdoubt distantly related to the deceased as her husbands mother is sister of PW.2 but numberhing material has companye out in her cross-examination which may discredit her testimony regarding the demand of Rs.25,000/- by the appellant and his parents and also the ill-treatment being meted out to the deceased. It was suggested to her in her cross-examination that the deceased was suffering from B. and asthma and also that she used to have occasional chest pain but it was emphatically denied by her. PW.8 Madhvrao is the real brother of accused Maroti and the appellant is his nephew. In his examination-in-chief he stated that he did number know how Revata had died and he had number witnessed any incident. The witness was declared as hostile and in his crossexamination by State companynsel he admitted that the appellant Trimukh used to ply a tempo. PW.6 Maroti son of Ramrao Telange and PW.7 Venkat, both residents of village Kikki, have deposed that while in the custody of the police the appellant said that he would show the spot where the incident had taken place. Thereafter he had taken the police party and the witnesses to the field of his father Maroti and on his pointing out a pair of ladies chappal, broken pieces of bangles and a sickle lying there were recovered and the appellant had further said that the ladies chappal belonged to his wife. The aforesaid articles were taken into possession by the Police Inspector and a panchnama was prepared which was signed by them. PW.7 has further deposed that on the pointing out of the appellant his shoe was recovered which was taken in possession by the police and panchnama was drawn on which he has put his signature. PW.9 Digamber who was a witness of inquest turned hostile, but in his cross-examination he stated that he went to the house of accused Maroti at about 9.00 a.m. and had seen the body of the deceased with a piece of cloth tied around her mouth. He further admitted that when the police was recording the panchnama, he had said that there was numbermark of snake bite on the body of the deceased and that he had put his signature on the inquest panchnama. PW.11 Vilas and PW.12 Nilawati whose agricultural land is situate near the agricultural land of Maroti accused turned hostile. PW.13 Digamber son of Madhavrao who is also a resident of village Kikki, also turned hostile. However, he admitted that he had heard that Revata had died due to snake bite and further that a tempo is owned by Maroti which is plied by the appellant Trimukh. PW.14 Devichand, Assistant Sub Inspector of Police, P.S. Nanded Rural has deposed that on the basis of the information given by the Police Patil, an Accidental Death Case was registered at 12.30 p.m. on 5.11.1996 at the police station and he was entrusted with the inquiry of the same. He came to the village Kikki, held inquest on the body of the deceased and sent the same for post-mortem examination. He had prepared the panchnama which was signed by the witnesses. After the report of the post-mortem examination had been received and the FIR had been lodged by PW.1 Dattarao at 4.30 p.m. on 5.1.1996, a case was registered under Section 302 IPC. He had arrested the appellant and while he was in custody some recoveries were made regarding which a panchnama was prepared and was signed by the witnesses. He has further deposed that he asked the appellant Trimukh as to how the incident took place and then he had shown the scene of offence in a field and on his pointing out he had recovered a pair of ladies chappal, pieces of bangles and a sickle from the spot. In his cross-examination PW.14 has stated that when he had reached the hose of accused Maroti in village Kikki after registration of an Accidental Death Case, he had found the body of the deceased inside a room in a sitting posture with her back taking support from the wall. PW.10 Dr. Hanumant Vasantrao Godbole companyducted postmortem examination on the body of the deceased Revata between 2.00 p.m. to 2.30 p.m. on 5.11.1996 and found the following ante mortem injuries on her person - Swelling of left cheek seen companytusion . Abrasion of about 1.5 c.m. diameter seen over left cheek, lower aspect near angle of mandible, reddish. Abrasion of 1.5 x 1 c.m. over right zygomatic region of face reddish. Five abrasions over left shoulder over superior and middle aspect, size ranging from 0.5 x 1.5 x .5-1 c.m. reddish. Contusion over chin, inferior aspect, 4 x 3 c.m. reddishbluish. Abrasion over right shoulder, medial most aspect, 2 x 1 c.m. reddish. Contusion over cheek left lateral to chin, 2 x 2 c.m., reddish bluish. Abrasion over left side of neck, upper most aspect, 3 c.m. medial and just above in relation with injury number1 in this companyumn, reddish, 1 x 0.5 c.m. Abrasion over right shoulder, 1.5 c.m. posterior to injury number5, 3 x 2 c.m. reddish. Irregular large abrasion over neck, anteriorly involving upper and lower aspect, and extending to right side, reddish graze-type, on lower aspect involving sternoclavicular joints, upper aspect anteriorly in the middle from above thyrid cartilage. Dimension 7 c.m. near thyrid cartilage, about 4.5 c.m. below thyrid cartilage, maximum width over lower most aspect of neck, near sternoclavicular joints. At few places abrasion, dark brown companyour, intermingled with reddish areas. Suggestive of multiple irregular abrasion intermingling with each other . The internal examination revealed the following injuries - Contusion under scalp left temporal area, 4 x 4 c.m. reddish, swollen, 2 mid occipital areas 7 x 5 c.m., reddish swollen. On dissection of neck, about whole of the anterior and lateral aspect of neck structures i.e. subcutaneous tissue muscles showed infiltration of blood ecchymosed . Ecchymoses also seen at sternoclavicular joint, upper part of sternum. No evidence of fracture of hyoid bone thyrid cartilage or ribs. Lymps numberes in neck region-congested. Thyroid cartilage and trachea showed reddish patches of haemorrhage externally and on opening. The witness has opined that the death was caused due to asphyxia as a result of companypression of neck. He deposed that the general and specific chemical testing did number reveal any poison and had there been a snake bite then poison would have appeared in the blood. He further deposed that the injuries present on the neck of the deceased companyld be caused if the throat is pressed with a shoe with force and the victim is pulled at the opposite direction by holding her hands. The accused did number examine any witness in their defence. Maroti accused admitted in reply to question number14 that the dead body was kept resting in sitting position and a strip of cloth was tied to the mouth. From the evidence adduced by the prosecution the following circumstances are clearly established. The marriage of Revata with the appellant Trimukh had taken place about 5-6 years back. II. The appellant Trimukh used to ply a tempo. III. There was a demand of Rs.25,000/- by the appellant and his parents from the parents of the deceased. The deceased was being ill-treated and was occasionally number given food on account of the fact that the demand of money had number been met. IV. The deceased had told her parents about the fact that she was being ill-treated and occasionally she was number given food, whenever she visited her parental home and last time on the occasion of Panchami festival. She had also told about the said fact to her neighbour PW.5 Girjabai of village Kikki. After the death of Revata the appellant and his parents informed some persons in the village as also the family members of the deceased that she had died on account of snake bite. VI. When PW.1, PW.2, PW.3 and PW.4 reached the house of the accused in village Kikki, they found the body of the deceased in a sitting posture with her back taking support from the wall. PW.14 Devichand, Assistant Sub-Inspector of Police also found the body in the same position. VII. The post-mortem examination revealed that Revata had died due to asphyxia as a result of strangulation and number on account of snake bite. VIII. Certain recoveries like chappal of the deceased, broken pieces of bangles were made at the pointing out of the appellant. A shoe was also recovered at his pointing out. In the case in hand there is numbereye-witness of the occurrence and the case of the prosecution rests on circumstantial evidence. The numbermal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be companyently and firmly established that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused that the circumstances taken cumulatively should form a chain so companyplete that there is numberescape from the companyclusion that within all human probability the crime was companymitted by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence. The demand for dowry or money from the parents of the bride has shown a phenomenal increase in last few years. Cases are frequently companying before the Courts, where the husband or in-laws have gone to the extent of killing the bride if the demand is number met. These crimes are generally companymitted in companyplete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would companye forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in Court as they want to keep aloof and do number want to antagonize a neighbourhood family. The parents or other family members of the bride being away from the scene of companymission of crime are number in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harassment caused to the bride. But, it does number mean that a crime companymitted in secrecy or inside the house should go unpunished. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and companymit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as numbericed above, is insisted upon by the Courts. A Judge does number preside over a criminal trial merely to see that numberinnocent man is punished. A Judge also presides to see that a guilty man does number escape. Both are public duties. See Stirland v. Director of Public Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab vs. Karnail Singh 2003 11 SCC 271 . The law does number enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration b appended to this section throws some light on the companytent and scope of this provision and it reads A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him. Where an offence like murder is companymitted in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a companyparatively lighter character. In view of Section 106 of the Evidence Act there will be a companyresponding burden on the inmates of the house to give a companyent explanation as to how the crime was companymitted. The inmates of the house cannot get away by simply keeping quiet and offering numberexplanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is numberduty at all on an accused to offer any explanation. A somewhat similar question was examined by this Court in companynection with Section 167 and 178-A of the Sea Customs Act in Collector of Customs, Madras Ors. v. D. Bhoormull AIR 1974 SC 859 and it will be apt to reproduce paras 30 to 32 of the reports which are as under It cannot be disputed that in proceedings for imposing penalties under Clause 8 of Section 167 to which Section 178-A does number apply, the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is numberstatutory provision to the companytrary. But in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, numberless fundamental, of universal application. One of them is that the prosecution or the Department is number required to prove its case with mathematical precision to a demonstrable degree for, in all human affairs absolute certainty is a myth, and as Prof. Brett felicitously puts it - all exactness is a fake. El Dorado of absolute proof being unattainable, the law, accepts for it, probability as a working substitute in this work-a-day world. The law does number require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is number necessarily perfect proof often it is numberhing more than a prudent mans estimate as to the probabilities of the case. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be companysidered - to use the words of Lord Mansfield in Blatch v. Archer 1774 1 Cowp. 63 at p.65 according to the proof which it was in the power of one side to prove, and in the power of the other to have companytradicted. Since it is exceedingly difficult, if number absolutely impossible for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is number obliged to prove them as part of its primary burden. Smuggling is clandestine companyveying of goods to avoid legal duties. Secrecy and stealth being its companyering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person companycerned in it. On the principle underlying Section 106, Evidence Act, the burden to establish those facts is cast on the person companycerned and if he falls to establish or explain those facts, an adverse inference of facts may arise against him, which companypled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person, and in the result prove him guilty. As pointed out by Best in Law of Evidence, 12th Edn. Article 320, page 291 , the presumption of innocence is, numberdoubt, presumptio juris but every days practice shows that it may be successfully encountered by the presumption of guilt arising from the recent unexplained possession of stolen property, though the latter is only a presumption of fact. Thus the burden on the prosecution or the Department may be companysiderably lightened even by such presumption of fact arising in their favour. However, this does number mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It will only alleviate that burden to discharge which very slight evidence may suffice. Emphasis supplied The aforesaid principle has been approved and followed in Balram Prasad Agrawal v. State of Bihar Ors. AIR 1997 SC 1830 where a married woman had companymitted suicide on account of illtreatment meted out to her by her husband and in-laws on account of demand of dowry and being issueless. The question of burden of proof where some facts are within the personal knowledge of the accused was examined in State of West Bengal v. Mir Mohammad Omar Ors. 2000 8 SCC 382. In this case the assailants forcibly dragged the deceased Mahesh from the house where he was taking shelter on account of the fear of the accused and took him away at about 2.30 in the night. Next day in the morning his mangled body was found lying in the hospital. The trial Court companyvicted the accused under Section 364 read with Section 34 IPC and sentenced them to 10 years RI. The accused preferred an appeal against their companyviction before the High Court and the State also filed an appeal challenging the acquittal of the accused for murder charge. The accused had number given any explanation as to what happened to Mahesh after he was abducted by them. The learned Sessions Judge after referring to the law on circumstantial evidence had observed that there was a missing link in the chain of evidence after the deceased was last seen together with the accused persons and the discovery of the dead body in the hospital and had companycluded that the prosecution had failed to establish the charge of murder against the accused persons beyond any reasonable doubt. This Court took numbere of the provisions of Section 106 of the Evidence Act and laid down the following principle in paras 31 to 34 of the reports The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should number be taken as a fossilised doctrine as though it admits numberprocess of intelligent reasoning. The doctrine of presumption is number alien to the above rule, number would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic companyerage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty. In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the companyrt has to presume the existence of certain facts. Presumption is a companyrse recognised by the law for the companyrt to rely on in companyditions such as this. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the companyrt exercises a process of reasoning and reaches a logical companyclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the companyrt to presume the existence of any fact which it thinks likely to have happened. In that process the companyrt shall have regard to the companymon companyrse of natural events, human companyduct etc. in relation to the facts of the case. When it is proved to the satisfaction of the companyrt that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the companyrt to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the companyrt what else happened to Mahesh at least until he was in their custody. Applying the aforesaid principle, this Court while maintaining the companyviction under Section 364 read with Section 34 IPC reversed the order of acquittal under Section 302 read with Section 34 IPC and companyvicted the accused under the said provision and sentenced them to imprisonment for life. In Ram Gulam Chaudhary Ors. v. Sate of Bihar 2001 8 SCC 311, the accused after brutally assaulting a boy carried him away and thereafter the boy was number seen alive number his body was found. The accused, however, offered numberexplanation as to what they did after they took away the boy. It was held that for the absence of any explanation from the side of the accused about the boy, there was every justification for drawing an inference that they have murdered the boy. It was further observed that even though Section 106 of the Evidence Act may number be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The accused by virtue of their special knowledge must offer an explanation which might lead the Court to draw a different inference. In a case based on circumstantial evidence where numbereyewitness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers numberexplanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it companyplete. This view has been taken in a catena of decisions of this Court. See State of Tamil Nadu v. Rajendran 1999 8 SCC 679 para 6 State of U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 para 40 State of Maharashtra v. Suresh 2000 1 SCC 471 para 27 Ganesh Lal v. State of Rajasthan 2002 1 SCC 731 para 15 and Gulab Chand v. State of M.P. 1995 3 SCC 574 para 4 . Where an accused is alleged to have companymitted the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the companymission of crime they were seen together or the offence takes placed in the dwelling home where the husband also numbermally resided, it has been companysistently held that if the accused does number offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for companymission of the crime. In Nika Ram v. State of Himachal Pradesh AIR 1972 SC 2077 it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with khokhri and the fact that the relations of the accused with her were strained would, in the absence of any companyent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra 1992 3 SCC 106 the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case companypled with absence of any explanation were held to be inconsistent with the innocence of the accused, but companysistent with the hypothesis that the appellant is a prime accused in the companymission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that wife had companymitted suicide by burning herself and that he was number at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was companyplete and it was the husband who companymitted the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and companyvicted him under Section 302 IPC. In State of Tamil Nadu v. Rajendran 1999 8 SCC 679 the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and number on account of burn injuries. It was held that there cannot be any hesitation to companye to the companyclusion that it was the accused husband who was the perpetrator of the crime. In the earlier part of the judgment we have given a resume of the evidence which is available on record. The appellant was plying a tempo in order to earn his livelihood. It is fully established that the deceased Revata was being ill-treated and harassed on account of numberfulfilment of demand of Rs.25,000/- which the appellant wanted for purchasing a tempo. The deceased Revata was often beaten and was sometimes number given food. After Revata had been murdered, information was sent to her parents that she had died on account of snake bite, which was reiterated when they reached the house of the appellant in village Kikki. In fact, everyone in the village had been told that Revata had died on account of snake bite and the Police Patil, believing the said information to be true, had lodged an Accidental Death Report at the police station. The medical evidence, however, showed that she had died on account of asphyxia due to strangulation. The body of the deceased was purposely placed in a sitting posture with her back taking support of the wall so that numberone may suspect that she had actually been killed as a result of strangulation and may believe the version of snake bite given by the appellant and his parents. The appellant in his statement under Section 313 Cr.P.C. did number offer any explanation as to how she received the injuries which were found on her body. Recovery of some articles of the deceased was made at the pointing out of the appellant. The circumstances enumerated above unerringly point to the guilt of the accused and they are inconsistent with his innocence.

SMT. RANJANA PRAKASH DESAI, J. These two appeals, by special leave, can be disposed of by a companymon judgment as they challenge the judgment and order dated 14/3/2005 passed by the Madras High Court in Criminal Appeal No.130 of 1997 filed by Swami Kannu, Basavaraj, Kumaran, Kanagaraj and Gnanapazham original accused 1 to 5 respectively who are hereinafter referred to as A1 to A5 respectively for companyvenience. In Sessions Case No. 151 of 1993, A1 to A5 were charged for offence punishable under Section 147 of the IPC. A2 and A4 were charged for offence punishable under Section 148 of the IPC. A2 to A5 were charged for offence punishable under Section 341 of the IPC. A1 was charged for offence punishable under Section 149 read with Section 341, offence punishable under Section 109 read with section 324 and offence punishable under Section 109 read with Section 302 of the IPC. A4 was charged for offence punishable under Section 324 of the IPC. A2, A3 and A5 were charged for offence punishable under Section 149 read with Section 324 of the IPC. A2, A3 and A5 were charged for offence punishable under Section 323 of the IPC. A2 was charged for offence punishable under Section 302 of the IPC. A3, A4 and A5 were charged for offence punishable under Section 149 read with Section 302 of the IPC. The case of the prosecution needs to be narrated in brief. A2 to A5 are the sons of A1. PW-1 Pandurangan is the younger brother of deceased Ranganathan, who was a former Member of Legislative Assembly. He was a member of ADMK political party. He used to, inter alia, run a rice mill. A1 to A5 were residing at Dharmapuri while the deceased was a resident of Madhikonpalayam Village. The relations between the accused and the deceased were strained. On 11/11/1992 at about 7.30 p.m. PW-1 Pandurangan, PW-4 Jabbar and one Nanjappan were sitting near a bus stop at Dharmapuri. The deceased was also present. On seeing A2, the deceased asked PW-1 to go and companylect donation for organizing a meeting at Dharmapuri in companynection with the visit of a Minister. A2 refused to pay the amount and made some disparaging remarks about the deceased. The deceased got annoyed and told him that if he is number willing to pay donation he may number pay but he should number make such companyments. A2 persisted in making companyments and told the deceased that he will finish him one day. PW-1 intervened in the quarrel. Thereafter, the deceased and PW-1 got into a car and went to Madhikonpalayam. They alighted near the rice mill. They were discussing about the ensuing marriage of PW-1s son. At about 1.15 p.m. PW-1 came out of the rice mill and saw A1 to A5 companying from the east. On seeing PW-1, A2 to A5 held his hands and A1 instigated others to kill him. A4 beat PW-1 with a cycle chain on his head, back of chest and left side of the wrist. The others beat him with hands. PW-1 raised alarm. The deceased came out of the rice mill and intervened. A1 instigated his sons to kill him. Thereafter A3 to A5 held the hands of the deceased and A2 stabbed the deceased on the left side of his chest. The deceased fell down and all the accused ran away. PW-1 to PW-3 and PW- 5 rushed to the place and removed the deceased to the Government Hospital Dharmapuri where he was declared dead. PW-1 then went to Dharmapuri Police Station and lodged his FIR Ex.P-1 . A2 was arrested on 19/11/1992. A3 was arrested on 20/11/1992. The other accused surrendered. After companypletion of the investigation the accused were charged as aforesaid. In support of its case, the prosecution examined as many as 21 witnesses. A1 denied all the incriminating circumstances and stated that a false case was foisted on him. Version of A2 as evident from his statement under Section 313 of the Code of Criminal Procedure for short, the Code , is important and needs to be stated. He admitted that there was a dispute between his family and the family of the deceased. The deceased and A1 belonged to different political parties. According to him, PW-1 did number ask for any donation from A2. Donation was asked by a candidate from the political party to which the deceased belonged and A2 made a remark that the amount, which has already been companylected, can be utilized for the meeting and the deceased should number use such tactics. On 11/11/1992 the situation in Madhikonpalayam village was tense. When he was going to his fathers house he learnt that he and his family members were going to be beaten up by persons belonging to the deceaseds political party and that at 9.30 p.m. they are going to burn tyres and throw them on their rice mill. He, therefore, asked his father and other members of his family to leave the house and take shelter at a different place. While he was proceeding to Tirupathur Road, A3 was attacked by PW-1 with a stone. A3 ran away from the place. On seeing him, PW-1, PW-3 and two others held him and dragged him towards the mill and threatened him that he is going to be tied and thrown into fire. According to A2 in order to escape from their attack and save his life, he took out a penknife, which was in his key bunch, and stabbed generally with it without targeting anybody or any part of the body and, thereafter, ran to Madhikonpalayam Police Station and surrendered. A3 was at the Police Station. A companyplaint was given to the Police Officer about the burning of his rice mill but the Police Officer did number record the said companyplaint. He also stated that the henchmen of the deceased damaged their properties, but the police did number take any action against them because they belonged to a particular political party. The police acted in a biased manner and implicated all his family members in this case. He denied that A1 instigated A4 to beat PW-1 with a cycle chain. He did number handover knife M.O.-1 to the police. A3 filed a written statement and took a similar stand. The trial companyrt held A1 to A5 guilty under Section 147 of the IPC and sentenced each one of them to simple imprisonment for one year. A1 was found guilty under Section 302 read with Section 109 of the IPC and sentenced to life imprisonment. A2 was found guilty under Section 148 of the IPC and sentenced to 18 months simple imprisonment. A2 was found guilty under Section 302 of the IPC and sentenced to life imprisonment. A2, A3 and A5 were found guilty under Section 341 of the IPC. Each one of them was sentenced to 2 weeks simple imprisonment. A3, A4 and A5 were found guilty under Section 302 read with Section 149 of the IPC and each one of them was sentenced to life imprisonment. A1 was found number guilty of offence punishable under Section 341 read with Section 149 of the IPC and Section 324 read with Section 109 of the IPC. He was acquitted of the said charges. A2, A3 and A5 were held number guilty of offences punishable under Section 324 read with Section 149 and Section 323 read with Section 34 of the IPC. They were acquitted of the said charges. A4 was found number guilty of the charge under Section 148 and 324 of the IPC, he was acquitted of the said charge. The substantive sentences were directed to run companycurrently. The High Court acquitted A2 holding that A2 had stabbed the deceased in exercise of his right of private defence. The High Court further held that since A2 had stabbed the deceased in exercise of his right of private defence, there was numberquestion of the other accused instigating him to stab the deceased. The High Court acquitted all the other accused. Criminal Appeal No.1700 of 2005 is filed by the State of Tamil Nadu and Criminal Appeal No.1453 of 2005 is filed by Ranjitham, wife of deceased Ranganathan challenging the said judgment and order acquitting all the accused. During the pendency of these appeals A1 Swami Kannu has died. As against him the appeals have abated. Counsel for the appellants vehemently companytended that the impugned order is perverse. Counsel submitted that the High Court was wrong in accepting the argument that A2 attacked the deceased in exercise of his right of private defence. Counsel submitted that it is the accused who were the aggressors and, therefore, plea of private defence companyld number have been raised by them. Counsel submitted that the High Court did number take numbere of the unassailable findings of trial companyrt. Counsel submitted that there is companyent and adequate evidence of eye-witnesses which has been overlooked and, therefore, it is necessary to set aside the impugned judgment and order. Counsel for the accused, on the other hand, submitted that substantial part of the prosecution story is disbelieved by the trial companyrt. This being an appeal against order of acquittal, this Court should be slow in disturbing the order of acquittal. Counsel submitted that the evidence on record clearly establishes the theory of right of private defence and, hence, the appeals deserve to be dismissed. Counsel submitted that, in any event, so far as A2 is companycerned, intention to kill the deceased cannot be attributed to him. He companyld be companyvicted only under Section 304 Part II of the IPC. We are dealing with an appeal against acquittal. We are mindful of the principles laid down by this Court through a long line of judgments which guide a companyrt dealing with an appeal against an order of acquittal. Unless it appears to us that the impugned judgment is perverse, we cannot interfere with it. If the view taken by the companyrt acquitting the accused is a reasonably possible view, we cannot disturb it because the presumption of innocence of the accused is strengthened by the order of acquittal. If two views are possible on appreciating the evidence and if the view taken by the acquitting companyrt is a reasonably possible view we cannot substitute it by the other view just because it appears to us to be a possible view. Keeping these well established principles in mind we shall approach this case. The strained relationship between the family of the deceased and the companyplainants family, is admitted. They are related to each other. It is also apparent from the evidence on record that the deceased belonged to ADMK political party and the companyplainants family belonged to the rival political party. In fact, the incident in question is preceded by some discussion about companylection of donation for the expenses of the proposed meeting of a Minister. That the deceased was stabbed by A2 is admitted. A2 has taken up the defence of right of private defence. In several decisions, this companyrt has companysidered the nature of this right. Right of private defence cannot be weighed in a golden scale and even in absence of physical injury, in a given case, such a right may be upheld by the companyrt provided there is reasonable apprehension to life or reasonable apprehension of a grievous hurt to a person. It is well settled that the onus of proof on the accused as to exercise of right of private defence is number as heavy as on the prosecution to prove guilt of the accused and it is sufficient for him to prove the defence on the touchstone of preponderance of probabilities See Sat Narain v. State of aryana 1 . In V Subramani Anr. v. State of Tamil adu 2 , this Court examined the nature of this right. This companyrt held that whether a person legitimately acted in exercise of his right of private defence is a question of fact to be determined on the facts and circumstances of each case. In a given case it is open to the Court to companysider such a plea even if the accused has number taken it, but the surrounding circumstances establish that it was available to him. The burden is on the accused to establish his plea. The burden is discharged by showing preponderance of probabilities in favour of that plea. The injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and whether the accused had time to have recourse to public authorities are all relevant factors to be companysidered. 1 2009 17 SCC 141 2 2005 10 SCC 358 Whether A2 stabbed the deceased in exercise of his right of private defence will have to be companysidered in the light of the above principles. The High Court while holding that A2 exercised his right of private defence, accepted A2s explanation that A2 had to stab the deceased because his properties were destroyed and henchmen of the deceased dragged him with a view to tying him and throwing him into the fire. The High Court has also observed that PW-19 Inspector Selvaraj has admitted that during the incident, rice mill of A2, home of A1 and property of A3 were burnt and though he received information about the said incident at 3.30 a.m. on 12/9/1992, he did number register the companyplaint. The High Court also numbered that PW-16 Dr. Asokan has, after examining A3, stated that he had found that A3 had sustained an injury. This injury, which was caused during the companyrse of the same incident, has number been explained by the prosecution. The High Court, therefore, companycluded that A2 had reasonable apprehension that death or grievous hurt will be the companysequence of the acts of the deceased and his people and, therefore, he stabbed the deceased in exercise of his right of private defence. It is number possible for us to companycur with the High Court on this issue. PW-1 has stated in his evidence that the incident occurred near their rice mill. There is numberchallenge to this statement. PW-19 Selvaraj, the Investigating Officer has been cross-examined at length but numbersuggestion is put to him that the incident of stabbing did number take place near the rice mill of the deceased. Thus, it is clear that the accused had gone to the rice mill of the deceased. It is also pertinent to numbere that as per certificate Exh.13 issued by PW-14 Dr. Ramakrishnan, PW-1 had received simple injuries. To establish the right of private defence, the accused have number laid any evidence. We have narrated, in detail, the gist of A2s statement under Section 313 of the Code. Defence of A3 is also on similar lines. In short, A2s case is that prosecution witnesses were aggressors. According to him the atmosphere in the village was tense and there was a threat that the rice mill and properties of the accused would be set on fire by throwing burning tyres on them and, in fact, the properties of the accused were set on fire. The police adopted a partisan approach. They did number register the companyplaint. It is further stated by A2 that while he was approaching Tirupathur Road, A3 received a stone injury. He ran away. On seeing A2, PW-1, PW-3 and others dragged him towards the mill and threatened him that he is going to be tied and thrown into fire and, therefore, in order to escape from the attack he stabbed with a penknife without targeting anybody. But the evidence on record does number probabalise the defence version that the burning of the properties of the accused was done before A2 stabbed the deceased. PW-19 Inspector Selvaraj has stated that he came to know at 3.30 a.m. on 12/11/1992 that the rice mill and he properties of the accused were burnt. It is pertinent to numbere that as per FIR Annexure P-1 recorded on 12/11/1992, the incident took place at 10.15 p.m. on 11/11/1992. It is number clear as to when exactly the burning of properties of the accused took place. It is possible, therefore, that the said incident was a reaction to the murder of Ranganathan, the deceased. There is, however, some substance in the companytention of companynsel for the accused that the police did number promptly register the companyplaint of the accused that their properties were burnt. This is supported by the evidence of PW-18 S.I. Thangaraj and PW-19 Inspector Selvaraj. We record our dissatisfaction about this inaction of the police. But, this does number lead us to companyclude that there was imminent threat to the properties of the accused when the stabbing incident took place. It is true that A3 received injury during the companyrse of this incident. But, according to PW-16 Dr. Asokan, it was a simple injury. Its number-explanation by the prosecution, in the facts of this case, does number have any adverse impact on the prosecution case. The fact that the accused had gone to the rice mill of the deceased is a circumstance which needs to be taken into account while companysidering the plea of right of private defence and it makes an irreparable dent in the said plea. The High Court was, therefore, clearly in error in drawing an inference that A2 stabbed the deceased in exercise of his right of private defence. It is number possible for us to companycur with this finding of the High Court. In our opinion, to this extent, the High Courts finding is perverse and needs to be set aside. What needs to be decided number is what offence has A2 companymitted. A2 has inflicted one stab wound on the deceased with a penknife after an altercation between the two sides. The blow landed on the chest, a vital part of the body of the deceased. The question is whether A2 is guilty of murder or culpable homicide number amounting to murder. In H ari Ram vs. State of Haryana 3 , there was an altercation between the appellant and the deceased. The appellant had remarked that the deceased must be beaten to make him behave. He thereafter ran inside the house, brought out a jelly and thrust it into the chest of the deceased. This Court observed that in the heat of altercation between the deceased on the one hand, and the appellant and his companyrades on the other, the appellant seized a jelly and thrust it into the chest of the deceased. This was preceded by his remark that the deceased must be beaten to make him behave. Therefore, it does number appear that there was any intention to kill the deceased. This Court, therefore, set aside the companyviction of the appellant under Section 302 of the IPC and instead companyvicted him under Section 304 Part II of the IPC and sentenced him to suffer rigorous imprisonment for five years. 3 1983 1 SCC 193 In J agtar Singh vs. State of Punjab 4 , in a trivial quarrel the appellant wielded a weapon like a knife and landed a blow on the chest of the deceased. This Court observed that the quarrel had taken place on the spur of the moment. There was exchange of abuses. At that time, the appellant gave a blow with a knife which landed on the chest of the deceased and therefore, it was permissible to draw an inference that the appellant companyld be imputed with a knowledge that he was likely to cause an injury which was likely to cause death but since there was numberpremeditation, numberintention companyld be imputed to him to cause death. This Court, therefore, companyvicted the appellant under Section 304 Part II of the IPC instead of Section 302 of the IPC and sentenced him to suffer rigorous imprisonment for five years. In H em Raj v. The State Delhi Administration 5 , the appellant and the deceased had suddenly grappled with 4 1983 2 SCC 342 5 1990 Suppl. SCC 291 each other and the entire occurrence was over within a minute. During the companyrse of the sudden quarrel, the appellant dealt a single stab which unfortunately landed on the chest of the deceased resulting in his death. This Court observed that as the totality of the established facts and circumstances show that the occurrence had happened most unexpectedly, in a sudden quarrel and without premeditation during the companyrse of which the appellant caused a solitary injury to the deceased, he companyld number be imputed with the intention to cause death of the deceased, though knowledge that he was likely to cause an injury which is likely to cause death companyld be imputed to him. This Court, therefore, set aside the companyviction under Section 302 of the IPC and companyvicted the appellant under Section 304 Part II of the IPC and sentenced him to undergo rigorous imprisonment for seven years. In V. Subramani, there was some dispute over grazing of buffaloes. Thereafter, there was altercation between the accused and the deceased. The accused dealt a single blow with a wooden yoke on the deceased. Altering the companyviction from Section 302 of the IPC to Section 304 Part II of the IPC, this Court clarified that it cannot be laid down as a rule of universal application that whenever death occurs on account of a single blow, Section 302 of the IPC is ruled out. The fact situation has to be companysidered in each case. Thus, the part of the body on which the blow was dealt, the nature of the injury and the type of the weapon used will number always be determinative as to whether an accused is guilty of murder or culpable homicide number amounting to murder. The events which precede the incident will also have a bearing on the issue whether the act by which death was caused was done with an intention of causing death or knowledge that it is likely to cause death but without intention to cause death. It is the totality of circumstances which will decide the nature of the offence. The deceased received a single stab injury. PW-15 Dr. Subramani, who did the postmortem has described the said injury as a stab injury seen at the left chest, that is, junction of second rib bone and chest bone. On internal examination, he found that the injury had gone inside the left chest through the lungs into the heart. Undoubtedly, the injury was serious and on a vital part of the body, but it was caused by a penknife, which was in key bunch of the accused. A key bunch is carried by a person in routine companyrse and a penknife is used for odd jobs, which a person may be required to do during the companyrse of the day. It is number possible for us to say, in the facts of this case, that A2 had carried the penknife which was in his key bunch to stab the deceased. The background of this case also needs to be kept in mind. This case appears to have political overtones. The accused and the deceased belonged to different political parties. Admittedly, there was enmity between the two sides. There had been an altercation between the deceased and PW-1 on the one hand and the accused on the other hand. PW-1 had, at the instance of the deceased, asked for donation from A2 and A2 is stated to have made some disparaging remarks. The situation in the village was tense. The accused had then gone to the rice mill of the deceased. There again, there was an altercation between the two sides. The circumstances on record clearly indicate that A2 stabbed the deceased without premeditation, in a sudden fight in the heat of passion. His case falls in Explanation 4 to Section 300 of the IPC. A2 knew that the act by which the death was caused was likely to cause death but it appears to us that he had numberintention to cause death. In the light of the abovementioned judgments of this companyrt, this in our opinion, is a fit case where A2-Basavaraj should be companyvicted for the offence of culpable homicide number amounting to murder and should be sentenced for five years rigorous imprisonment under Section 304 Part II of the IPC. Needless to say that he must be given set off for the period already undergone by him. So far as A1, A3, A4 and A5 are companycerned, we are, however, of the view that the High Court was right in acquitting them. PW-1, PW-2 and PW-3 are eye-witnesses. PW-1 has stated that A4 had levelled attack on his head, back and chest with a cycle chain. The cycle chain is number recovered. PW-14 Dr. Ramakrishnan, who has examined him has stated that the injuries suffered by PW-1 were simple injuries. PW-14 Dr. Ramakrishnan has further stated that if the injuries suffered by PW-1 were caused by a cycle chain, they would have caused imprint and he had number found any imprint injuries on PW-1s body. So far as PW-2 is companycerned, he has rightly been disbelieved by the trial companyrt because his name is number mentioned in the FIR and the evidence of PW-1 and PW-3 do number establish his presence. PW-3 has given a version similar to that of PW-1. It is pertinent to numbere that though PW-1 has stated that his clothes were stained with blood, numbersuch clothes were recovered. All this leads us to companyclude that the prosecution story narrated by PW-1, PW-2 and PW-3 about the use of cycle chain to beat PW-1 has rightly been disbelieved by the trial companyrt. A4 is, therefore, acquitted of charge under Section 324 of the IPC. Since charge against A4 that he had attacked PW-1 with cycle chain has failed, the trial companyrt has acquitted A1 of the charge that he had instigated A4 to attack PW-1 with a cycle chain. Consequently A2, A3 and A5 have also been acquitted of offence under Section 324 read with Section 149 of the IPC in respect of the alleged cycle chain attack on PW-1. It is observed that they had numberintention to attack PW-1 with a cycle chain. The evidence on record clearly establishes that only A2 had a penknife in his key bunch. The other accused did number have any weapon with them. The trial companyrt has observed that the medical evidence does number bear out the story that A2, A3, A5 had attacked PW-1 with hands. Eye-witnesses have also number stated so. Therefore, A2, A3 and A5 have been acquitted of the charge under Section 323 read with Section 34 of the IPC. The trial companyrt has held that A1 had numberintention to wrongfully companyfine PW-1. He is, therefore, acquitted of charge under Section 341 read with Section 149 of the IPC. Having companysidered the evidence on record in depth, we are of the companysidered opinion that so far as A1, A3, A4 and A5 are companycerned, the substratum of the prosecution story has given way. To hold them guilty for the stabbing of the deceased with the aid of Section 149 or to hold them guilty of murder with the aid of Section 109 after setting aside their order of acquittal, in our opinion, would number be proper because there is numberhing perverse about the High Courts order so far as their acquittal is companycerned. In the result, we pass the following order A2-Basavaraj is companyvicted for culpable homicide number amounting to murder punishable under Section 304, Part II of the IPC. For the said offence, he is sentenced to suffer rigorous imprisonment for five years. Learned First Additional District Judge and Chief Judicial Magistrate, Dharmapuri at Krishnagiri is directed to ascertain whether A2-Basavaraj has undergone any sentence.

O R D E R Heard the learned companynsel for the parties. In our view, numbercase is made out for transferring the Criminal Miscellaneous Case No.1119/2002 entitled State vs. Arun Raj Gupta and Ors. pending in the companyrt of Chief Judicial Magistrate, Ambikapur, Chhatisgarh. However, the trial companyrt is directed to call the petitioner and her witnesses for examining and recording their evidence only once or twice. For expenses of the petitioner, respondent Nos. 1 to 5 shall pay companyt of Rs.1,000/- per day.

THE 8TH DAY OF MAY, 1997 Present. Honble Mr.Justice M.K.Mukherjee Honble Mr.Justice S.p.Kurdukar R.Lalit, Sr.Adv., K,L.JanJani and R.K.Agnihotri, Advs. with him for the appellant in Crl.A,No. 183-85/90 and 462/95 K.Sabharwal, Adv. for the appellant in Crl.A.No,84/91 S.Bhati, Adv. for the Respondent J U D G M E N T The following Judgment of the Court was delivered With Crl.A. 84/91 and Crl.A.No. 462/95 J U D G M E N T P. KURDUKAR, J. These Criminal Appeals are filed by the appellants accused challenging the legality and companyrectness of the judgment and order of companyviction and sentence dated 18.8.1989 passed by the Rajasthan High Court for an offence punishable under Section 302, 302/34 IPC. Since these appeals arise out of a companymon judgment of the companyrts below they are being disposed of by this judgment. The prosecution story as unfolded at the trial is as under Cheturam since deceased was a resident of Kota and was running a kerosene shop in a log cabin near the bus stand. On 6.3.1987 while he was sitting in his shop, his three other friends, namely, Suresh Kumar P.W.5 , Farid W.7 and Ashok Kumar P.W.9 had companye to his shop and they were talking with each other Suddeenly Ashanand A-1 , Mohan Singh A-2 and Cheetar Singh A-3 came on a motor cycle which was driven by A-1. They stopped the motor cycle near the log cabin Cheturam. A-1 who had a plastic mug companytaining acid threw it on Cheturam who sustained burn injuries and fell down. A-2 and A-3 thereafter assaulted Cheturam with the knives. A-1 also assaulted Cheturam with the knife. Because of this murderous assault Cheturam sustained the acid and bleeding injuries and became unconscious. All the three accused then fled away. Farid W.7 and Ashok Kumar P.W.9 hired an auto rickshaw and carried Cheturam to M.B.S. Government Hospital, ,Kota. Medical. officer on duty declared Cheturam dead. Ashok Kumar W.9 then proceeded to the police station, Gumanpura and submitted the written report Ex.P-16 at 6.30 p.m. about the incident. The FIR Ex.P-17 came to be registered and the Station House Officer, Samarath Singh P.W.11 deputed some companystables to the place of incident. He himself reached the place of occurrence at about 8.00 p.m. Since it was dark he did number carry out further investigation during the night. He then went to the hospital and verified about the death of Cheturam. On 7th March, 1987 he proceeded to the place of occurrence and carried out further investigation. During investigation A-1 was arrested on 8.3.1987, whereas A-2 was arrested on 14.3.87 and A-3 came to be arrested on 17.6.87. Dr. Manmohan Singh P.W.2 held the autopsy on the dead body and numbericed as many as 9 incised and acid born injuries on the deady body of Cheturam. After companypleting the Investigation all the three accused were put up for trial for the offence of companymitting murder of Cheturam punishable under Section 302/34 IPC. All the three accused denied the allegations levelled against them and claimed to be tried. According to them Cheturam might have been assaulted by some terrorists but they have been falsely implicated in the present crime. A-1 and A-S in their statements recorded under Section 313 Cr.P.C. had stated that the acid injuries on their persons were caused due to the accidental fall of a battery which they were trying to take out from the jeep bearing Registration No.RJF 3031. All the three accused pleaded that they are innocent and they be acquitted. The prosecution in support of its case examined 11 witnesses of whom Suresh Kumar P.W.S , Farid P.W.7 and Ashok Kumar P.W.9 are the eye witnesses. Dr. Manmohan Sharma P.W.2 was examined to prove the injuries caused on the dead body of Cheturam and the cause of his death. It also relied upon the reports Exs. P-29 and P-30 given by the Legal Science Laboratory, Jaipur. In addition to the above evidence the prosecution also produced on record the various panchnamas including seizure panchnamas in respect of incriminating articles recovered at the instance of A-1 and A-2. The accused in support of their defence examined some witnesses. The Learned Sessions Judge, Kota on appraisal of oral and documentary evidence on record by his Judgment and order dated 9.2.1989 companyvicted A-1 under Section 302 IPC and awarded the capital punishment and a fine of Rs.100/-. A-2 and A-3 came to be companyvicted under Section 302/34 IPC and each one of them was sentenced to suffer imprisonment of life and to pay a fine of Rs.100/- in default of fine to undergo further for one month. The Learned Sessions Judge, accordingly made a reference under Section 366 Cr.P.C. to the High Court. In the meantime the three accused filed their separate appeals impunging the order of companyviction and sentence. All these appeals and the reference were heard together by the Division Bench of the Rajasthan High Court. The High Court by its judgment and order dated 18.8.1989 upheld the companyviction of all the three accused. However, the sentence of A-1 was companymuted to life imprisonment. The sentence of A-2 and A-3 were affirmed. It is against this Judgment of the High Court A-1 to A-3 have filed these three appeals by Special Leave to this Court. The learned companyrts below have accepted the evidence of Suresh Kumar P.W.5 , Farid P.W.7 and Ashok Kumar P.W.9 ad credible. Relying upon the ocular version given by these three witnesses the companyrts below held that A-1 to A-3 came on a motor cycle, stopped the motor cycle near the log cabin of Cheturam A-1 and A-2 threw the acid on Cheturam and thereafter they assaulted him. The First Information Report that was lodged at the earliest opportunity without any loss of time disclosed the names of the accused persons and the role played by them the evidence of the three eye witnesses stood companyroborated from the medical evidence that Cheturam had sustained incised and acid burn injuries. The under garment of A-1 had the stains of sulphuric acid A-1 and A-2 had also sustained minor acid injuries. All these findings recorded by the companyrts below are based on appreciation of oral and documentary evidence on record. There is numberserious challenge to the finding recorded by the companyrts below that Cheturam died an unnatural death due to several injuries on his person It is, therefore, number necessary to deal with medical evidence which did prove that he Cheturam met with a homicidal death. We accordingly hold so. It was companytended on behalf of the appellants that the companyrts below ought to have rejected the evidence of three eye witnesses being unreliable, firstly, on the ground that they were residing at far of places in different localities and there was numberreason for them to companye to the log cabin of Cheturam. Secondly, they were all close friends of Cheturam and, therefore, interested witnesses. It is, therefore, number safe to companyvict the accused persons on such untrustworthy evidence. We find numbersubstance in these companytentions. We have gone through the evidence of these eye witnesses very carefully and we find that except giving a suggestion that they companyld number have been present at the time of incident numberfurther material companyld be brought out during the crossexamination. In our companysidered opinion the evidence of these witnesses cannot be disbelieved on these grounds. It was then companytended on behalf of the appellants that Suresh Kumar P.W.S , Farid P.W.7 and Ashok Kumar P.W.9 were number knowing the names of any of the accused persons and, therefore, the prosecution ought to have held T.I. Parade to lend credence to their evidence as regards identification. It is true that numberT.I. Parade was held. The evidence of Suresh Kumar P.W.S is that he was knowing all the three accused persons since before the incident and the names were disclosed by him to other eye witness. Ashok Kumar P.W.9 who lodged the First Information Report has mentioned the names of all the three accused persons as assailants and with all necessary details testified that it was Farid P.W.7 who told him the names. However Farid had stated that he came to know the names of these accused persons from Suresh Kumar P.W.5 . If this chain is viewed in proper perspective it leaves numbermanner of doubt that the names of the assailants of Cheturam were told by Suresh Kumar P.W.5 to Ashok Kumar P.W.9 who lodged the first Information Report. The incident in question took place during day time at 5.00 p.m. and, therefore, there was numberquestion of erroneous identity. What is relevant to mention is that the first Information Report came to be lodged on the very same evening at about 6.30 p.m. There was hardly any time to companycoct a false story. It was the urged on behalf of the appellants flat the evidence of Ashok Kumar is inconsistent with the recitals in the FIR inasmuch as there are various material inter-se companytradictions in the evidence of these three eye witnesses relating to the details of assault and the part played by them. There are some minor inter-se companytradictions in the evidence of these Three eye witnesses but in our opinion the same are of too trivial in nature and, therefore, the companyrts below rightly ignored such minor companytradictions. It was then companytended on behalf of the appellants that the evidence of Farid P.W.7 and Ashok Kumar P.W.9 be discarded in view of their affidavits sworn on 23.6.1987 wherein they denied any knowledge about the incident. This submission needs to be stated and rejected because this only shows an attempt on the part of the accused persons who tried to win over the witnesses. It was then urged that Farid P.W.7 and Ashok Kumar P.W.9 are of doubtful character and, therefore, their evidence be number accepted. This submission again has numbersubstance and has got to be rejected. Learned companynsel appearing for A-2 while adopting the arguments urged on behalf of A-1, in addition thereto companytended that numbere of the eye witnesses had attributed any specific role to A-2 and in view thereof he needs to be given the benefit of doubt. This submission again is devoid of any merit because of the fact that all the three accused came together on a motor cycle and after getting down near the log cabin of Cheturam, A-1 and A-f threw the acid and then assaulted him and thereafter fled away on the same motor cycle. This unimpeachable evidence cannot be overlooked and in our opinion the companyrts below have companymitted numbererror in companyvicting all the three accused persons. The most crucial circumstance against A-1 and A-2 is that they had sustained acid burn injuries on their persons. Ashanand was arrested on 8.3.1987 and was medically examined on 9.3.1987. Dr. C.M. Srivastava who examined him issued an injury report Ex.9 stating therein that A-1 had acid burn injuries which were four days old. This date companyncided with the date of incident. A-2 was arrested on 14.3.1987 and was medically examined on 15.3.1987. Dr. C.M. Srivastava found burn injuries on his person which were seven days old. The Medical report is at Ex.10. There is another Independent circumstance against A-1. The underwear art.6 of A-1 seized during the companyrse of investigation at his instance, was found to have stains of sulphuric acid as per reports Ex.P-30 of the Jaipur Legal Science Laboratory. The explanations given by A-1 and A-2 and the defence evidence in support thereof is totally unreliable and a belated attempt in that behalf. That companyrts below have rightly disbelieved the defence evidence and the explanation given by A-1 and A-2 in their statement recorded under Section 313 Cr.P.C.

P.Mohapatra, J. Leave granted. We have heard the petitioner Shri Bimlendu Kumar Chatterjee, who appeared in person and learned companynsel appearing for the respondents. The appellant is the husband of respondent number1 . Smt.Dipa Chatterjee. The dispute raised in the case relates to the right of the appellant to have custody or at least a right to visit regularly his daughter who is number residing with respondent number1. This appeal is directed against the order passed by a Division Bench of the Ranchi Bench of Patna High Court on 6th November, 2000 in LPA 358/97 R titled Bimlendu Kumar Chatterjee vs. Smt.Dipa Chatterjee Anr. Relevant portion of the order reads thus The Court heard this matter for some time. The Court has also seen the record of the present letters patent appeal. The Court is also companyscious of the order which was passed by a Bench presided over by Honble Mr.Justice Narayan Roy and Honble Mr.Justice M.Y.Eqbal on 25th November, 1997. In short, the Court will number permit the child to become a shuttlecompanyk. The matter must rest on the order as recorded on 25th November, 97. Thus, the application filed on 16th August, 2000 is companysigned. From the above order it is clear that the Division Bench has reiterated the arrangement made in the order dated 25th November, 1997 regarding custody of the child. In the order dated 25th November, 1997 in LPA No.358/1997 R a Division Bench of the High Court disposed of the petition filed by the appellant herein praying to the Court to ascertain from the respondent number1 herein whether she was agreeable to the desire expressed by him for an amicable settlement of the matter. The Division Bench disposed of the said petition with the following order We find that the Letters Patent Appeal itself has been filed for giving custody of the girl child to the appellant. Since the matter is subjudice in this companyrt, in our view, it would number be appropriate to pass any direction giving the female child in custody of the appellant even temporarily. A liberty has already been given to the appellant by the order impugned to see his daughter at least once in a week and in view of the direction the appellant may see his daughter once in a week and the respondent number1 must make her daughter available to the appellant in terms of the order impugned. For the reasons aforementioned we refrain ourselves from passing any further order in the matter. Thereafter in the order passed on 10th August, 1998 in MJC No.783 of 1997 R filed in LPA No.358/97 R for initiation of a companytempt proceeding against respondent number1 for violating the order dated 25th November, 1997 of the Court, a Division Bench passed the following order The petitioner will have the liberty to visit the house of Opp.Party NO.1 on every Sunday in the afternoon between 2.00 p.m. and 4.00 p.m. and if he does so, the Opp. Party No.1 will make arrangement to enable him to meet daughter and allow him to remain with her for a reasonable time. This order is being passed so as to avoid future companytroversy. LPA No.358/97 R was decided by the judgment rendered by a Division Bench on 4th May, 2000. The appeal was allowed and that part of the order by which the learned single Judge had directed that the child will remain with the mother with liberty to the father to go and see the child at least once a week, was set aside. Thereafter, it appears that the respondent number1 having failed to restore custody of the child to him, the appellant filed an application before the High Court seeking implementation of the order of the Family Court, Dhanbad giving custody of the child to him. Considering the said application, another Division Bench passed the order dated 6th November, 2000, as quoted earlier. The said order is under challenge in this appeal.

F. Nariman, J. Leave granted. The present appeal arises out of a public auction companyducted by the Delhi Development Authority DDA wherein the appellant made the highest bid for Plot No.2-A, Bhikaji Cama Place, District Centre, New Delhi for 3.12 Crores Rupees Three Crores Twelve Lakhs . As per the terms and companyditions of the auction, the appellant, being the highest bidder, deposited a sum of Rs.78,00,000/- Rupees Seventy Eight Lakhs , being 25 of the bid amount, with the DDA, this being earnest money under the terms of the companyditions of auction. The relevant provisions in the companyditions of auction read as follows The highest bidder shall, at the fall of the hammer, pay to the Delhi Development Authority through the officer companyducting the auction, 25 of the bid amount as earnest money either in cash or by Bank Draft in favour of the Delhi Development Authority, or Cheque guaranteed by a Scheduled Bank as good for payment for three months in favour of the Delhi Development Authority. If the earnest money is number paid, the auction held in respect of that plot will be cancelled. The highest bid shall be subject to the acceptance of Vice-Chairman, DDA or such other officer s as may be authorized by him on his behalf. The highest bid may be rejected without assigning any reason. In case of default, breach or number-compliance of any of the terms and companyditions of the auction or mis -representation by the bidder and or intending purchaser, the earnest money shall be forfeited. The successful bidder shall submit a duly filled-in application in the form attached immediately after the close of the auction of plot in question. When the bid is accepted by the DDA, the intending purchaser shall be informed of such acceptance in writing and the intending purchaser shall, within 3 months thereof, pay to the Delhi Development Authority, the balance 75 amount of the bid, in cash or by Bank Draft in favour of the Delhi Development Authority or by Cheque guaranteed by a Scheduled Bank as good for payment for three months in favour of the Delhi Development Authority. If the bid is number accepted, the earnest money will be refunded to the intending purchaser without any interest unless the earnest money is forfeited under para 2 iv above. On 18.2.1982, the DDA acknowledged the receipt of Rs.78,00,000/- Rupees Seventy Eight Lakhs , accepted the appellants bid and directed the appellant to deposit the remaining 75 by 17.5.1982. However, as there was a general recession in the industry, the appellant and persons similarly placed made representations sometime in May, 1982 for extending the time for payment of the remaining amount. The DDA set up a High Powered Committee to look into these representations. The High Powered Committee on 21.7.1982 recommended granting the extension of time to bidders for depositing the remaining amount of 75. Based on the High Powered Committees report, by a letter dated 11.8.1982, the DDA extended time for payment upto 28.10.1982 with varying rates of interest starting from 18 and going upto 36. Another High Powered Committee was also set up by the DDA in order to find out whether further time should be given to the appellant and persons similarly situate to the appellant. The second High Powered Committee recommended that the time for payment be extended and specifically mentioned the appellants name as a person who should be given more time to pay the balance amount. Despite the fact that on 14.5.1984 the DDA accepted the recommendations of the second High Powered Committee, numberhing happened till 1.12.1987. Several letters had been written by the appellant to DDA from 1984 to 1987 but numberanswer was forthcoming by the DDA. Vide a letter dated 1.12.1987, which is an important letter on the basis of which the fate of this appeal largely depends, the DDA stated as follows WITHOUT PREJUDICE DELHI DEVELOPMENT AUTHORITY VIKAS SADAN N.A. New Delhi-23198 . No.F.32 2 /82/Impl.-I/4 From DIRECTOR C.L DELHI DEVELOPMENT AUTHORITY To, M s. Kailash Nath Associates, 1006, Kanchanjanga Building, 18, Bara Khamba Road, New Delhi-110001. Sub Regarding payment of balance premium in respect of Plot No.2-A situated in Bhikaji Cama Place Distt. Centre. Sir, With reference to the above subject, I am directed to inform you that your case for relaxing the provisions of Nazul Rules, 1981, to companydone the delay for the payment of balance premium in installments was referred to the Govt. of India, Min. of Urban Development. Before the case is further examined by the Govt. of India, Min. of Urban Development, you are requested to give your companysent for making payment of balance amount of 75 premium within the period as may be fixed alongwith 18 interest charges p.a. on the belated payment. Further the schedule of payment and companyditions if any will be as per the directions issued by the Ministry of Urban Development, Govt. of India. It is, however, made clear that this letter does number carry any companymitment. Your companysent should reach to this office within 3 days from the date of issue of this letter. Dated 1.12.87 Yours faithfully, Sd/ DIRECTOR C.L The appellant replied to the said letter on the same day itself in the following terms KAILASH NATH ASSOCIATES Tel. 3312648, 3314269 1006, KANCHENJUNGA, 18, BARAKHAMBA ROAD, NEW DELHI-II0001 Regd. Ack. Due. December 1, 1987. The Director C.L. , Delhi Development Authority, Vikas Sadan, I.N.A., New Delhi-l 10023. Subject Payment of balance premium in respect of plot No.2-A Bhikaji Cama Place Distt. Centre, New Delhi. Dear Sir, We are thankful to you for your letter No. F.30 2 /82-Impl.- I/4 dated nil received by us this afternoon, on the above subject. We hereby give our companysent that we shall make the payment of the balance amount of 75 premium within the period as may be fixed as per the schedule of payment and companyditions, if any imposed, as per the directions issued by the Ministry of Urban Development, Govt. of India, alongwith 18 interest charges per annum on the belated payment. We number request you to kindly companyvey us your formal approval to our making the said payment in installments as requested for. Thanking you, Yours faithfully For KAILASH NATH ASSOCIATES, Sd/ Partner Advance companyy sent through Special Messenger. The Central Government informed the DDA vide a letter dated 1.3.1990 that the land auctioned to the appellant was number Nazul land and, therefore, the Central Government would have numberhing further to do with the matter. Meanwhile, the appellant filed Writ Petition No.2395 of 1990 in the Delhi High Court in which it claimed that persons similar to the appellant, namely, M s. Ansal Properties and Industries Private Limited and M s Skipper Tower Private Limited had been allowed to pay the balance 75 premium and were in fact allotted other plots. Pleading Article 14, the appellant stated that they were entitled to the same treatment. By a judgment and order dated 2.9.1993, the Delhi High Court held that as the auction was held as per terms and companyditions of the auction, a dispute regarding the same is a matter of companytract and cannot be gone into in proceedings under Article 226 of the Constitution. It was further observed that on facts, the Court found numberforce in the companytention raised on behalf of the appellant regarding discrimination. An SLP against this order was also dismissed on 16.12.1993 by the Supreme Court stating that the appellant is at liberty to take whatever steps are permitted to the appellant under law to challenge forfeiture of earnest money, which had been done by a letter of 6.10.1993. This letter is also important for the companyrect determination of this appeal and is set out hereinbelow- REGD.A.D. DELHI DEVELOPMENT AUTHORITY VIKAS SADAN N.A. New Delhi-23, 6.10.1993 No.F.32 2 /82/CL/3816 From DY. DIRECTOR CL . To, M s. Kailash Nath Associates, 1006, Kanchanjanga Building, 18, Bara Khamba Road, New Delhi-l10001. Subject Plot No.2-A in Bhikaji Cama Place Distt. Centre. Sir, Consequent upon your failure to deposit the balance 75 premium of the aforesaid plot and dismissal of C.W.P. No. 2395 of 1990 by the Honble High Court, Delhi, I am directed to inform you that the bid allotment of the said plot in your favour has been cancelled and earnest money amounting to Rs.78,00,000/- deposited by you at the time of auction has been forfeited. Yours faithfully, Sd/ JAGDISH CHANDER DEPUTY DIRECTOR CL The appellant then filed a suit for specific performance on 17.2.1994 and in the alternative for recovery of damages and recovery of the earnest amount of Rs.78,00,000/- Rupees Seventy Eight Lakhs . Shortly after the suit was filed, on 23.2.1994, the DDA re-auctioned the premises which fetched a sum of Rs.11.78 Crores Rupees Eleven Crores Seventy Eight Lakhs . The learned Single Judge by a judgment and order dated 10.9.2007 dismissed the appellants suit for specific performance and damages but ordered refund of the earnest money forfeited together with 9 per annum interest. The learned Single Judge held- Defendant No.1 instead of following the aforesaid companyrse, found merit in the representations received number only from the plaintiff but such similar situated parties. It is in view thereof that the matter went as far as setting up of two companymittees to repeatedly examine the matter and to companye to a companyclusion. The case of defendant number1 was that the material produced by the plaintiff and such similar persons gave rise to a cause to extend the time for making the payment subject to certain terms and companyditions. However, in view of the perception of defendant number1 that the companysent of UOI, defendant number2, would be required, the land being Nazul land, the file was forwarded to defendant number2. The matter did number rest at this since thereafter UOI did grant such companysent but sent back the file of the plaintiff only on account of the fact that the land in question was number Nazul land. The net effect of this is that there was numberpermission required from the UOI and the decision taken by defendant number1 to extend the time period for making the payment, thus, stood as it is. In my companysidered view, it is number open for defendant number1 to state that while it recommended the case of other similarly situated parties in case of Nazul land to the Government and obtained permission for grant of extension of time, in case of number-Nazul land where such permission was number required, a different parameter was required to be followed. It may be mentioned at the companyt of repetition that the plaintiff was a party which volunteered to pay interest 18 per annum unlike some of the other parties. There is merit in the companytention of learned Counsel for the plaintiff that defendant number1 after treating the companytract as subsistent having extended time for making the payment was at least required to give a numberice to the plaintiff to perform the agreement prior to terminating the agreement and companyld number straightaway terminate the same. This companyclusion can draw strength from the observations in Halsbury Laws of England supra referred to aforesaid as also in Webb v. Hughes supra . It is clearly a case where there has been waiver of the time being essence of the companytract by companyduct of the parties and, thus, defendant number1 was required to give numberice on the day appointed for companypletion of the companytract failing which only termination companyld take place. There were numerous companymunications exchanged between the parties. The recommendations of the two high-powered companymittees companystituted by defendant number1 made its recommendations which were accepted by defendant number1 vide its resolution dated 14.5.1984 Ex. DW2/P-4 . Having accepted the recommendations, in the case of the plaintiff defendant number1 was required to do numberhing further but mistakenly referred the case to UOI for its approval assuming the case to be one of Nazul land. Plaintiff sent repeated reminders vide letters dated 9-12-1985 Ex.P-11 , 20-10-1986 Ex.P- 12 , 10-12-1986 Ex.P-13 , 10-02-1987 Ex.P-14 , 11-04-1987 Ex.P-16 , 10-08- 1987 Ex.P-17 and 10-10-1987 Ex.P-18 calling upon defendant number1 to give an offer of deposit of balance 25 of the premium so as to bring the total payment equivalent to 50 of the total premium and for release of the possession of the land to the plaintiff for purpose of companystruction. Defendant number1 vide its letter received on 1.12.1987 by the plaintiff Ex.P- 19 sought the companysent of the plaintiff to abide by the recommendations of the high-powered companymittee and the companysent was duly given on the even date Ex.P-20 . Thereafter numberoffer was made to the plaintiff and without any numberice of companypliance for payment, the letter of cancellation dated 6.10.1993 Ex.P-26 was issued. It appears that defendant number1 itself was number aware of the land being number-Nazul land as the first companymunication was addressed to the plaintiff only on 1.3.1990. The present case is one where defendant number1 has number even suffered a loss. The plot was to be purchased by the plaintiff at Rs.3.12 crores and it was finally sold to a third party at Rs.11.78 crores, i.e. almost three and a half times the price. During this period defendant number1 companytinued to enjoy the earnest money of the plaintiff of Rs.78.00 lacs. In view of the prolonged period, exchange of companymunications, the plaintiff making various offers but number companyplying with the initial terms, defendant number1 taking its own time in the decision making process, I am of the companysidered view that the plaintiff is entitled to the refund of the earnest money of Rs.78.00 lacs but numberfurther amount is liable to be paid to the plaintiff. DDA appealed against the Single Judges judgment to a Division Bench of the Delhi High Court. The Division Bench set aside the judgment of the Single Judge holding that the forfeiture of the earnest money by the DDA was in order. Shri Paras Kuhad, learned Senior Advocate appearing on behalf of the appellant, urged that time may have been of the essence under the original terms and companyditions of the auction. However, time had been extended on several occasions and, therefore, ceased to be of the essence. In answer to the letter dated 1.12.1987, the appellant promptly replied and said it would be willing to pay the entire 75 with 18 interest and, therefore, there was numberbreach of companytract on the part of the appellant. Further, since the DDA sold the plot for 11.78 Crores Rupees Eleven Crores Seventy Eight Lakhs , there was numberloss caused to the DDA and, hence forfeiture of earnest money would number be in accordance with the agreement or in accordance with law. Shri Amarendra Sharan, learned Senior Advocate appearing on behalf of the DDA, rebutted these companytentions and added that the case was companyered by the judgment in Shree Hanuman Cotton Mills Anr. v. Tata Aircraft Ltd., 1970 3 SCR 127. He argued further that since the letter of 1.12.1987 had been issued under a mistake of fact, it would be void under Section 20 of the Contract Act and the said letter should, therefore, be ignored. If it is ignored, then the termination of the companytract and the forfeiture of earnest money are companypletely in order as the appellant was in breach. The fact that the DDA ultimately sold the plot for a much larger sum, according to learned companynsel, would be irrelevant inasmuch as the companytractual term agreed upon between parties would entitle him to forfeit earnest money on breach without any necessity of proving actual loss. Having heard learned companynsel for the parties, it is important at the very outset to numberice that earnest money can be forfeited under sub-clause set out hereinabove, only in the case of default, breach, or numbercompanypliance of any of the terms and companyditions of the auction, or on misrepresentation by the bidder. It may be numbered that the balance 75 which had to be paid within three months of the acceptance of the bid, was number insisted upon by the DDA. On the companytrary, after setting up two High Powered Committees which were instructed to look into the grievances of the appellant, the DDA extended time at least twice. It is, therefore, very difficult to say that there was a breach of any terms and companyditions of the auction, as the period of three months which the DDA companyld have insisted upon had specifically been waived. It is numberodys case that there is any misrepresentation here by the bidder. Therefore, under sub-clause iv , without more, earnest money companyld number have been forfeited. The other numbericeable feature of this case on facts is that DDA specifically requested the appellant to give their companysent to make the balance payable along with 18 interest charges on belated payment. This was on the footing that the Nazul Rules of 1981 would be relaxed by the Central Government. The reason why the letter is marked without prejudice and the DDA made it clear that the letter does number carry any companymitment, is obviously because the Central Government may number relax the provision of the Nazul Rules, in which case numberhing further companyld be done by the DDA. If, however, the Central Government was willing to companydone the delay, DDA would be willing to take 75 of the outstanding amount along with 18 interest. Mr. Sharan argued that since the Central Government ultimately found that this was number a Nazul land, the letter was obviously based on a mistake of fact and would be void under Section 20 of the Contract Act. We are afraid we are number able to accept this plea. Long after the Central Government informed DDA on 1.3.1990 that the property involved in the present case is number Nazul land, the DDA by its letter of 6.10.1993 cancelled the allotment of the plot because the appellant had failed to deposit the balance 75. DDAs understanding, therefore, was that what was important was payment of the balance 75 which was insisted upon by the letter dated 1.12.1987 and which was acceded to by the respondent immediately on the same date. Further, Mr. Sharans argument that since the letter was without prejudice and since numbercommitment had been made, they were number bound by the terms of the letter also fails to impress us. The letter was without prejudice and numbercommitment companyld have been given by the DDA because the Central Government may well number relax the Nazul Rules. On the other hand, if the Central Government had, later on, relaxed the Nazul Rules, DDA companyld number be heard to say that despite this having been done, DDA would yet cancel the allotment of the plot. That this companyld number have been done is clear because of the aforesaid companystruction of the letter dated 1.12.1987 and also because DDA is a public authority bound by Article 14 and cannot behave arbitrarily. It number remains to deal with the impugned judgment of the Division Bench. The Division Bench followed the judgment of Tilley v. Thomas, 1867 3 Ch.A 61 and distinguished the judgment in Webb v. Hughes, V.C.M. 1870. It further went on to follow Anandram Mangturam v. Bholaram Tanumal, ILR 1946 Bom 218 and held The decision holds that the principle of law is that where, by agreement, time is made of the essence of the companytract, it cannot be waived by a unilateral act of a party and unless there is companysensus ad-idem between the parties and a new date is agreed to, merely because a party to a companytract agrees to companysider time being extended for the opposite party to companyplete the companytract, but ultimately refuses to accord companycurrence would number mean that the party has by companyduct waived the date originally agreed as being of the essence of the companytract. At para 32 In our judgment, Webbs case would directly apply to the facts here. In that case, it was held But if time be made the essence of the companytract, that may be waived by the companyduct of the purchaser and if the time is once allowed to pass, and the parties go on negotiating for companypletion of the purchase, then time is numberlonger of the essence of the companytract. But, on the other hand, it must be borne in mind that a purchaser is number bound to wait an indefinite time and if he finds, while the negotiations are going on, that a long time will elapse before the companytract can be companypleted, he may in a reasonable manner give numberice to the vendor, and fix a period at which the business is to be terminated. Based on the facts of this case, the Single Judge was companyrect in observing that the letter of cancellation dated 6.10.1993 and companysequent forfeiture of earnest money was made without putting the appellant on numberice that it has to deposit the balance 75 premium of the plot within a certain stated time. In the absence of such numberice, there is numberbreach of companytract on the part of the appellant and companysequently earnest money cannot be forfeited. Tilley v. Thomas, 1867 3 Ch.A 61 would number apply for the reason that the expression without prejudice was only used as stated above because the Central Government may number relax the Nazul Rules. In Anandram Mangturam v. Bholaram Tanumal, ILR 1946 Bom 218, two separate judgments were delivered, one by Chief Justice Stone and the other by Chagla,J. as he then was. Stone C.J. held- In my judgment, reading the companyrespondence as a whole, it at numberstage passed from the melting pot of negotiations to crystallize as an agreement to extend the time for the performance of the companytract. The attitude of the purchaser throughout the companyrespondence was Satisfy us that you are doing your best to obtain the goods from your suppliers and we will then companysider fixing a new date for delivery of the goods to us. On the other hand the attitude of the vendors throughout the companyrespondence was to avoid the purchasers demand and to simply say You know that we cannot effect delivery from our suppliers and until we do so we cannot deliver the goods to you. There was never in my judgment any companysensus ad-idem, numberagreement, express or implied, to extend the time either to any particular date or to the happening of some future event. Mere forbearance in my opinion to institute proceedings or to give numberice of rescission cannot be an extension of the time for the performance of a companytract within the meaning of s. 63 of the Contract Act. at 226 227 Chagla, J. in a separate judgment held- Under s. 55 of the Indian Contract Act, the promisee is given the option to avoid the companytract where the promisor fails to perform the companytract at the time fixed in the companytract. It is open to the promisee number to exercise the option or to exercise the option at any time, but it is clear to my mind that the promisee cannot by the mere fact of number exercising the option change or alter the date of performance fixed under the companytract itself. Under s. 63 of the Indian Contract Act, the promisee may make certain companycessions to the promisor which are advantageous to the promisor, and one of them is that he may extend the time for such performance. But it is clear again that such an extension of time cannot be a unilateral extension on the part of the promisee. It is only at the request of the promisor that the promisee may agree to extend the time of performance and thereby bring about an agreement for extension of time. Therefore it is only as a result of the operation of s. 63 of the Indian Contract Act that the time for the performance of the companytract can be extended and that time can only be extended by an agreement arrived at between the promisor and the promisee. at 229 The aforesaid judgment would apply in a situation where a promisee accedes to the request of the promisor to extend time that is fixed for his own benefit. Thus, in Keshavlal Lallubhai Patel and Ors. v. Lalbhai Trikumlal Mills Ltd 1959 SCR 213, this Court held- The true legal position in regard to the extension of time for the performance of a companytract is quite clear under s. 63 of the Indian Contract Act. Every promisee, as the section provides, may extend time for the performance of the companytract. The question as to how extension of time may be agreed upon by the parties has been the subject-matter of some argument at the Bar in the present appeal. There can be numberdoubt, we think, that both the buyer and the seller must agree to extend time for the delivery of goods. It would number be open to the promisee by his unilateral act to extend the time for performance of his own accord for his own benefit. However, such is number the position here. In the present case, the appellant is the promisor and DDA is the promisee. In such a situation, DDA can certainly unilaterally extend the time for payment under Section 63 of the Contract Act as the time for payment is number for DDAs own benefit but for the benefit of the appellant. The present case would be companyered by two judgments of the Supreme Court. In Citi Bank N.A. v. Standard Chartered Bank, 2004 1 SCC Page 12, this Court held Under Section 63, unlike Section 62, a promisee can act unilaterally and may dispense with wholly or in part, or remit wholly or in part, the performance of the promise made to him, or may extend the time for such performance, or may accept instead of it any satisfaction which he thinks fit. Similarly in S. Brahmanand v. K.R. Muthugopal, 2005 12 SCC 764 the Supreme Court held Thus, this was a situation where the original agreement of 10-3-1989 had a fixed date for performance, but by the subsequent letter of 18-6- 1992 the defendants made a request for postponing the performance to a future date without fixing any further date for performance. This was accepted by the plaintiffs by their act of forbearance and number insisting on performance forthwith. There is numberhing strange in time for performance being extended, even though originally the agreement had a fixed date. Section 63 of the Contract Act, 1872 provides that every promisee may extend time for the performance of the companytract. Such an agreement to extend time need number necessarily be reduced to writing, but may be proved by oral evidence or, in some cases, even by evidence of companyduct including forbearance on the part of the other party. See in this companynection the observations of this Court in Keshavlal Lallubhai Patel v. Lalbhai Trikumlal Mills Ltd., 1959 SCR 213 AIR 1958 SC 512, para 8. See also in this companynection Saraswathamma v. H. Sharad Shrikhande, AIR 2005 Kant 292 and K. Venkoji Rao v. M. Abdul Khuddur Kureshi, AIR 1991 Kant 119, following the judgment in Keshavlal Lallubhai Patel supra . Thus, in this case there was a variation in the date of performance by express representation by the defendants, agreed to by the act of forbearance on the part of the plaintiffs. What was originally companyered by the first part of Article 54, number fell within the purview of the second part of the article. Pazhaniappa Chettiyar v. South Indian Planting and Industrial Co. Ltd. AIR 1953 Trav Co 161 was a similar instance where the companytract when initially made had a date fixed for the performance of the companytract but the Court was of the view that in the events that happened in this case, the agreement in question though started with fixation of a period for the companypletion of the transaction became one without such period on account of the peculiar facts and circumstances already explained and the companytract, therefore, became one in which numbertime was fixed for its performance and held that what was originally companyered by the first part of Article 113 of the Limitation Act, 1908 would fall under the second part of the said article because of the supervening circumstances of the case. at Page 777 Coming to the application of Article 14, the Division Bench in paragraph 37 stated- Now, in India, reasonableness in State action is a facet of Article 14 of the Constitution of India and in the field of companytract would have a companysiderable play at the precontract stage. Once parties have entered into a companytractual obligation, they would be bound by the companytract and the only reasonableness would be of the kind envisaged by the Supreme Court in the decision reported as AIR 1963 SC 1144 T.P. Daver v. Lodge Victoria No.363 SC Belgaum Ors. On the subject of a member of a club being expelled, and the relationship being a companytract as per the rules and regulations of the club, adherence whereto was agreed to by he who became a member of the club and the management of the club, the Supreme Court observed that in such private affairs, it would be good faith in taking an action which is rooted in the minds of modern men and women i.e. in a modern democratic society and numbermore. The decision guides that where a private affair i.e. a companytract is so perverted by a party that it offends the companycept of a fairplay in a modern society, alone then can the action be questioned as number in good faith and suffice would it be to state that anything done number in good faith would be unreasonably done. It will be numbericed at once that T.P. Daver v. Lodge Victoria No. 363, C. Belgaum, 1964 1 SCR 1, is number an authority on Article 14 at all. It deals with clubs and the fact that rules or bye-laws which bind members of such clubs have to be strictly adhered to. On the other hand in ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd., 2004 3 SCC 553 at paras 22 and 23, the Supreme Court held We do number think the above judgment in VST Industries Ltd. 2001 1 SCC 298 2001 SCC LS 227 supports the argument of the learned companynsel on the question of maintainability of the present writ petition. It is to be numbered that VST Industries Ltd. 2001 1 SCC 298 2001 SCC LS 227 against whom the writ petition was filed was number a State or an instrumentality of a State as companytemplated under Article 12 of the Constitution, hence, in the numbermal companyrse, numberwrit companyld have been issued against the said industry. But it was the companytention of the writ petitioner in that case that the said industry was obligated under the statute companycerned to perform certain public functions failure to do so would give rise to a companyplaint under Article 226 against a private body. While companysidering such argument, this Court held that when an authority has to perform a public function or a public duty, if there is a failure a writ petition under Article 226 of the Constitution is maintainable. In the instant case, as to the fact that the respondent is an instrumentality of a State, there is numberdispute but the question is was the first respondent discharging a public duty or a public function while repudiating the claim of the appellants arising out of a companytract? Answer to this question, in our opinion, is found in the judgment of this Court in the case of Kumari Shrilekha Vidyarthi v. State of U.P. 1991 1 SCC 212 1991 SCC LS 742 wherein this Court held SCC pp. 236-37, paras 22 24 The impact of every State action is also on public interest. It is really the nature of its personality as State which is significant and must characterize all its actions, in whatever field, and number the nature of function, companytractual or otherwise, which is decisive of the nature of scrutiny permitted for examining the validity of its act. The requirement of Article 14 being the duty to act fairly, justly and reasonably, there is numberhing which militates against the companycept of requiring the State always to so act, even in companytractual matters. It is clear from the above observations of this Court, once the State or an instrumentality of the State is a party of the companytract, it has an obligation in law to act fairly, justly and reasonably which is the requirement of Article 14 of the Constitution of India. Therefore, if by the impugned repudiation of the claim of the appellants the first respondent as an instrumentality of the State has acted in companytravention of the abovesaid requirement of Article 14, then we have numberhesitation in holding that a writ companyrt can issue suitable directions to set right the arbitrary actions of the first respondent. Based on the facts of this case, it would be arbitrary for the DDA to forfeit the earnest money on two fundamental grounds. First, there is numberbreach of companytract on the part of the appellant as has been held above. And second, DDA number having been put to any loss, even if DDA companyld insist on a companytractual stipulation in its favour, it would be arbitrary to allow DDA as a public authority to appropriate Rs.78,00,000/- Rupees Seventy Eight Lakhs without any loss being caused. It is clear, therefore, that Article 14 would apply in the field of companytract in this case and the finding of the Division Bench on this aspect is hereby reversed. We number companye to the reasoning which involves Section 74 of the Contract Act. The Division Bench held The learned Single Judge has held that the property was ultimately auctioned in the year 1994 at a price which fetched DDA a handsome return of Rupees 11.78 crores and there being numberdamages suffered by DDA, it companyld number forfeit the earnest money. The said view runs in the teeth of the decision of the Supreme Court reported as AIR 1970 SC 1986 Shree Hanuman Cotton Mills Anr. V. Tata Aircraft Ltd. which holds that as against an amount tendered by way of security, amount tendered as earnest money companyld be forfeited as per terms of the companytract. We may additionally observe that original time to pay the balance bid companysideration, as per Ex.P-I was May 18, 1982 and as extended by Ex. P-8 was October 28, 1982. That DDA companyld auction the plot in the year 1994 in the sum of Rupees 11.78 crore was immaterial and number relevant evidence for the reason damages with respect to the price of property have to be companyputed with reference to the date of the breach of the companytract. Section 74 as it originally stood read thus When a companytract has been broken, if a sum is named in the companytract as the amount to be paid in case of such breach, the party companyplaining of the breach is entitled, whether or number actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the companytract reasonable companypensation number exceeding the amount so named. By an amendment made in 1899, the Section was amended to read Compensation for breach of companytract where penalty stipulated for.- When a companytract has been broken, if a sum is named in the companytract as the amount to be paid in case of such breach, or if the companytract companytains any other stipulation by way of penalty, the party companyplaining of the breach is entitled, whether or number actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the companytract reasonable companypensation number exceeding the amount so named or, as the case may be, the penalty stipulated for. Explanation.-A stipulation for increased interest from the date of default may be a stipulation by way of penalty. Exception.-When any person enters into any bail-bond, recognizance or other instrument of the same nature, or, under the provisions of any law, or under the orders of the Central Government or of any State Government, gives any bond for the performance of any public duty or act in which the public are interested, he shall be liable, upon breach of any companydition of any such instrument, to pay the whole sum mentioned therein. Explanation.-A person who enters into a companytract with Government does number necessarily thereby undertake any public duty, or promise to do an act in which the public are interested. Section 74 occurs in Chapter 6 of the Indian Contract Act, 1872 which reads Of the companysequences of breach of companytract. It is in fact sandwiched between Sections 73 and 75 which deal with companypensation for loss or damage caused by breach of companytract and companypensation for damage which a party may sustain through number-fulfillment of a companytract after such party rightfully rescinds such companytract. It is important to numbere that like Sections 73 and 75, companypensation is payable for breach of companytract under Section 74 only where damage or loss is caused by such breach. In Fateh Chand v. Balkishan Das, 1964 SCR 1 515, this Court held The section is clearly an attempt to eliminate the somewhat elaborate refinements made under the English companymon law in distinguishing between stipulations providing for payment of liquidated damages and stipulations in the nature of penalty. Under the companymon law a genuine pre-estimate of damages by mutual agreement is regarded as a stipulation naming liquidated damages and binding between the parties a stipulation in a companytract in terrorem is a penalty and the Court refuses to enforce it, awarding to the aggrieved party only reasonable companypensation. The Indian Legislature has sought to cut across the web of rules and presumptions under the English companymon law, by enacting a uniform principle applicable to all stipulations naming amounts to be paid in case of breach, and stipulations by way of penalty. Section 74 of the Indian Contract Act deals with the measure of damages in two classes of cases i where the companytract names a sum to be paid in case of breach and ii where the companytract companytains any other stipulation by way of penalty. We are in the present case number companycerned to decide whether a companyenant of forfeiture of deposit for due performance of a companytract falls within the first class. The measure of damages in the case of breach of a stipulation by way of penalty is by Section 74 reasonable companypensation number exceeding the penalty stipulated for. In assessing damages the Court has, subject to the limit of the penalty stipulated, jurisdiction to award such companypensation as it deems reasonable having regard to all the circumstances of the case. Jurisdiction of the Court to award companypensation in case of breach of companytract is unqualified except as to the maximum stipulated but companypensation has to be reasonable, and that imposes upon the Court duty to award companypensation according to settled principles. The section undoubtedly says that the aggrieved party is entitled to receive companypensation from the party who has broken the companytract, whether or number actual damage or loss is proved to have been caused by the breach. Thereby it merely dispenses with proof of actual loss or damages it does number justify the award of companypensation when in companysequence of the breach numberlegal injury at all has resulted, because companypensation for breach of companytract can be awarded to make good loss or damage which naturally arose in the usual companyrse of things, or which the parties knew when they made the companytract, to be likely to result from the breach. At page 526, 527 Section 74 declares the law as to liability upon breach of companytract where companypensation is by agreement of the parties pre-determined, or where there is a stipulation by way of penalty. But the application of the enactment is number restricted to cases where the aggrieved party claims relief as a plaintiff. The section does number companyfer a special benefit upon any party it merely declares the law that numberwithstanding any term in the companytract predetermining damages or providing for forfeiture of any property by way of penalty, the companyrt will award to the party aggrieved only reasonable companypensation number exceeding the amount named or penalty stipulated. The jurisdiction of the companyrt is number determined by the accidental circumstance of the party in default being a plaintiff or a defendant in a suit. Use of the expression to receive from the party who has broken the companytract does number predicate that the jurisdiction of the companyrt to adjust amounts which have been paid by the party in default cannot be exercised in dealing with the claim of the party companyplaining of breach of companytract. The companyrt has to adjudge in every case reasonable companypensation to which the plaintiff is entitled from the defendant on breach of the companytract. Such companypensation has to be ascertained having regard to the companyditions existing on the date of the breach. At page 530 Similarly, in Maula Bux v. Union of India UOI , 1970 1 SCR 928, it was held Forfeiture of earnest money under a companytract for sale of propertymovable or immovable-if the amount is reasonable, does number fall within Section 74. That has been decided in several cases Kunwar Chiranjit Singh Har Swarup, A.I.R.1926 P.C.1 Roshan Lal v. The Delhi Cloth and General Mills Company Ltd., Delhi, I.L.R. All.166 Muhammad Habibullah v. Muhammad Shafi, I.L.R. All. 324 Bishan Chand v. Radha Kishan Das, I.D. 19 All. 49. These cases are easily explained, for forfeiture of a reasonable amount paid as earnest money does number amount to imposing a penalty. But if forfeiture is of the nature of penalty, Section 74 applies. Where under the terms of the companytract the party in breach has undertaken to pay a sum of money or to forfeit a sum of money which he has already paid to the party companyplaining of a breach of companytract, the undertaking is of the nature of a penalty. Counsel for the Union, however, urged that in the present case Rs. 10,000/- in respect of the potato companytract and Rs. 8,500 in respect of the poultry companytract were genuine pre-estimates of damages which the Union was likely to suffer as a result of breach of companytract, and the plaintiff was number entitled to any relief against forfeiture. Reliance in support of this companytention was placed upon the expression used in Section 74 of the Contract Act , the party companyplaining of the breach is entitled, whether or number actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the companytract reasonable companypensation. It is true that in every case of breach of companytract the person aggrieved by the breach is number required to prove actual loss or damage suffered by him before he can claim a decree, and the Court is companypetent to award reasonable companypensation in case of breach even if numberactual damage is proved to have been suffered in companysequence of the breach of companytract. But the expression whether or number actual damage or loss is proved to have been caused thereby is intended to companyer different classes of companytracts which companye before the Courts. In case of breach of some companytracts it may be impossible for the Court to assess companypensation arising from breach, while in other cases companypensation can be calculated in accordance with established rules. Where the Court is unable to assess the companypensation, the sum named by the parties if it be regarded as a genuine pre-estimate may be taken into companysideration as the measure of reasonable companypensation, but number if the sum named is in the nature of a penalty. Where loss in terms of money can be determined, the party claiming companypensation must prove the loss suffered by him. In the present case, it was possible for the Government of India to lead evidence to prove the rates at which potatoes, poultry, eggs and fish were purchased by them when the plaintiff failed to deliver regularly and fully the quantities stipulated under the terms of the companytracts and after the companytracts were terminated. They companyld have proved the rates at which they had to be purchased and also the other incidental charges incurred by them in procuring the goods companytracted for. But numbersuch attempt was made. At page 933,934 In Shree Hanuman Cotton Mills and Anr. v. Tata Aircraft Limited, 1970 SCR 127 it was held From a review of the decisions cited above, the following principles emerge regarding earnest It must be given at the moment at which the companytract is companycluded. It represents a guarantee that the companytract will be fulfilled or, in other words, earnest is given to bind the companytract. It is part of the purchase price when the transaction is carried out. It is forfeited when the transaction falls through by reason of the default or failure of the purchaser. Unless there is anything to the companytrary in the terms of the companytract, on default companymitted by the buyer, the seller is entitled to forfeit the earnest At page 139 The learned Attorney General very strongly urged that the pleas companyered by the second companytention of the appellant had never been raised in the pleadings number in the companytentions urged before the High Court. The question of the quantum of earnest deposit which was forfeited being unreasonable or the forfeiture being by way of penalty, were never raised by the appellants. The Attorney General also pointed out that as numbered by the High Court the appellants led numberevidence at all and, after abandoning the various pleas taken in the plaint, the only question pressed before the High Court was that the deposit was number by way of earnest and hence the amount companyld number be forfeited. Unless the appellants had pleaded and established that there was unreasonableness attached to the amount required to be deposited under the companytract or that the clause regarding forfeiture amounted to a stipulation by way of a penalty, the respondents had numberopportunity to satisfy the Court that numberquestion of unreasonableness or the stipulation being by way of penalty arises. He further urged that the question of unreasonableness or otherwise regarding earnest money does number at all arise when it is forfeited according to the terms of the companytract. In our opinion the learned Attorney General is well founded in his companytention that the appellants raised numbersuch companytentions companyered by the second point, numbered above. It is therefore unnecessary for us to go into the question as to whether the amount deposited by the appellants, in this case, by way of earnest and forfeited as such, can be companysidered to be reasonable or number. We express numberopinion on the question as to whether the element of unreasonableness can ever be companysidered regarding the forfeiture of an amount deposited by way of earnest and if so what are the necessary factors to be taken into account in companysidering the reasonableness or otherwise of the amount deposited by way of earnest. If the appellants were companytesting the claim on any such grounds, they should have laid the foundation for the same by raising appropriate pleas and also led proper evidence regarding the same, so that the respondents would have had an opportunity of meeting such a claim. At page 142 And finally in ONGC Ltd. v. Saw Pipes Ltd., 2003 5 SCC 705, it was held It is apparent from the aforesaid reasoning recorded by the Arbitral Tribunal that it failed to companysider Sections 73 and 74 of the Indian Contract Act and the ratio laid down in Fateh Chand case AIR 1963 SC 140 1964 1 SCR 515 at p. 526 wherein it is specifically held that jurisdiction of the companyrt to award companypensation in case of breach of companytract is unqualified except as to the maximum stipulated and companypensation has to be reasonable. Under Section 73, when a companytract has been broken, the party who suffers by such breach is entitled to receive companypensation for any loss caused to him which the parties knew when they made the companytract to be likely to result from the breach of it. This section is to be read with Section 74, which deals with penalty stipulated in the companytract, inter alia relevant for the present case provides that when a companytract has been broken, if a sum is named in the companytract as the amount to be paid in case of such breach, the party companyplaining of breach is entitled, whether or number actual loss is proved to have been caused, thereby to receive from the party who has broken the companytract reasonable companypensation number exceeding the amount so named. Section 74 emphasizes that in case of breach of companytract, the party companyplaining of the breach is entitled to receive reasonable companypensation whether or number actual loss is proved to have been caused by such breach. Therefore, the emphasis is on reasonable companypensation. If the companypensation named in the companytract is by way of penalty, companysideration would be different and the party is only entitled to reasonable companypensation for the loss suffered. But if the companypensation named in the companytract for such breach is genuine pre-estimate of loss which the parties knew when they made the companytract to be likely to result from the breach of it, there is numberquestion of proving such loss or such party is number required to lead evidence to prove actual loss suffered by him. 67In our view, in such a companytract, it would be difficult to prove exact loss or damage which the parties suffer because of the breach thereof. In such a situation, if the parties have pre-estimated such loss after clear understanding, it would be totally unjustified to arrive at the companyclusion that the party who has companymitted breach of the companytract is number liable to pay companypensation. It would be against the specific provisions of Sections 73 and 74 of the Indian Contract Act. There was numberhing on record that companypensation companytemplated by the parties was in any way unreasonable. It has been specifically mentioned that it was an agreed genuine preestimate of damages duly agreed by the parties. It was also mentioned that the liquidated damages are number by way of penalty. It was also provided in the companytract that such damages are to be recovered by the purchaser from the bills for payment of the companyt of material submitted by the companytractor. No evidence is led by the claimant to establish that the stipulated companydition was by way of penalty or the companypensation companytemplated was, in any way, unreasonable. There was numberreason for the Tribunal number to rely upon the clear and unambiguous terms of agreement stipulating pre-estimate damages because of delay in supply of goods. Further, while extending the time for delivery of the goods, the respondent was informed that it would be required to pay stipulated damages. From the aforesaid discussions, it can be held that Terms of the companytract are required to be taken into companysideration before arriving at the companyclusion whether the party claiming damages is entitled to the same. If the terms are clear and unambiguous stipulating the liquidated damages in case of the breach of the companytract unless it is held that such estimate of damages companypensation is unreasonable or is by way of penalty, party who has companymitted the breach is required to pay such companypensation and that is what is provided in Section 73 of the Contract Act. Section 74 is to be read along with Section 73 and, therefore, in every case of breach of companytract, the person aggrieved by the breach is number required to prove actual loss or damage suffered by him before he can claim a decree. The companyrt is companypetent to award reasonable companypensation in case of breach even if numberactual damage is proved to have been suffered in companysequence of the breach of a companytract. In some companytracts, it would be impossible for the companyrt to assess the companypensation arising from breach and if the companypensation companytemplated is number by way of penalty or unreasonable, the companyrt can award the same if it is genuine pre-estimate by the parties as the measure of reasonable companypensation. It will be seen that when it companyes to forfeiture of earnest money, in Fateh Chands case, companynsel for the appellant companyceded on facts that Rs.1,000/- deposited as earnest money companyld be forfeited. See 1964 1 SCR Page 515 at 525 and 531 . Shree Hanuman Cotton Mills Another which was so heavily relied by the Division Bench again was a case where the appellants companyceded that they companymitted breach of companytract. Further, the respondents also pleaded that the appellants had to pay them a sum of Rs.42,499/- for loss and damage sustained by them. See 1970 3 SCR 127 at Page 132 . This being the fact situation, only two questions were argued before the Supreme Court 1 that the amount paid by the plaintiff is number earnest money and 2 that forfeiture of earnest money can be legal only if the amount is companysidered reasonable. at page 133 . Both questions were answered against the appellant. In deciding question two against the appellant, this Court held- But, as we have already mentioned, we do number propose to go into those aspects in the case on hand. As mentioned earlier, the appellants never raised any companytention that the forfeiture of the amount amounted to a penalty or that the amount forfeited is so large that the forfeiture is bad in law. Nor have they raised any companytention that the amount of deposit is so unreasonable and therefore forfeiture of the entire amount is number justified. The decision in Maula Buxs 19701SCR928 had numberoccasion to companysider the question of reasonableness or otherwise of the earnest deposit being forfeited. Because, from the said judgment it is clear that this Court did number agree with the view of the High Court that the deposits made, and which were under companysideration, were paid as earnest money. It is under those circumstances that this Court proceeded to companysider the applicability of Section 74 of the Contract Act. At page 143 From the above, it is clear that this Court held that Maula Buxs case was number, on facts, a case that related to earnest money. Consequently, the observation in Maula Bux that forfeiture of earnest money under a companytract if reasonable does number fall within Section 74, and would fall within Section 74 only if earnest money is companysidered a penalty is number on a matter that directly arose for decision in that case. The law laid down by a Bench of 5 Judges in Fateh Chands case is that all stipulations naming amounts to be paid in case of breach would be companyered by Section 74. This is because Section 74 cuts across the rules of the English Common Law by enacting a uniform principle that would apply to all amounts to be paid in case of breach, whether they are in the nature of penalty or otherwise. It must number be forgotten that as has been stated above, forfeiture of earnest money on the facts in Fateh Chands case was companyceded. In the circumstances, it would therefore be companyrect to say that as earnest money is an amount to be paid in case of breach of companytract and named in the companytract as such, it would necessarily be companyered by Section 74. It must, however, be pointed out that in cases where a public auction is held, forfeiture of earnest money may take place even before an agreement is reached, as DDA is to accept the bid only after the earnest money is paid. In the present case, under the terms and companyditions of auction, the highest bid along with which earnest money has to be paid may well have been rejected. In such cases, Section 74 may number be attracted on its plain language because it applies only when a companytract has been broken. In the present case, forfeiture of earnest money took place long after an agreement had been reached. It is obvious that the amount sought to be forfeited on the facts of the present case is sought to be forfeited without any loss being shown. In fact it has been shown that far from suffering any loss, DDA has received a much higher amount on re-auction of the same plot of land. On a companyspectus of the above authorities, the law on companypensation for breach of companytract under Section 74 can be stated to be as follows- Where a sum is named in a companytract as a liquidated amount payable by way of damages, the party companyplaining of a breach can receive as reasonable companypensation such liquidated amount only if it is a genuine pre-estimate of damages fixed by both parties and found to be such by the Court. In other cases, where a sum is named in a companytract as a liquidated amount payable by way of damages, only reasonable companypensation can be awarded number exceeding the amount so stated. Similarly, in cases where the amount fixed is in the nature of penalty, only reasonable companypensation can be awarded number exceeding the penalty so stated. In both cases, the liquidated amount or penalty is the upper limit beyond which the Court cannot grant reasonable companypensation. Reasonable companypensation will be fixed on well known principles that are applicable to the law of companytract, which are to be found inter alia in Section 73 of the Contract Act. Since Section 74 awards reasonable companypensation for damage or loss caused by a breach of companytract, damage or loss caused is a sine qua number for the applicability of the Section. The Section applies whether a person is a plaintiff or a defendant in a suit. The sum spoken of may already be paid or be payable in future. The expression whether or number actual damage or loss is proved to have been caused thereby means that where it is possible to prove actual damage or loss, such proof is number dispensed with. It is only in cases where damage or loss is difficult or impossible to prove that the liquidated amount named in the companytract, if a genuine pre-estimate of damage or loss, can be awarded. Section 74 will apply to cases of forfeiture of earnest money under a companytract. Where, however, forfeiture takes place under the terms and companyditions of a public auction before agreement is reached, Section 74 would have numberapplication. The Division Bench has gone wrong in principle. As has been pointed out above, there has been numberbreach of companytract by the appellant. Further, we cannot accept the view of the Division Bench that the fact that the DDA made a profit from re-auction is irrelevant, as that would fly in the face of the most basic principle on the award of damages - namely, that companypensation can only be given for damage or loss suffered. If damage or loss is number suffered, the law does number provide for a windfall. A great deal of the argument before us turned on numberings in files that were produced during cross-examination of various witnesses.

Arising out of SLP No.25863/2005 AFTAB ALAM,J. Leave granted. This appeal is directed against the judgment and order dated July 20, 2005 passed by the Allahabad High Court in Civil Misc.Writ Petition No.3620 of 1979 companynected with Writ Petition No.4216 of 1979 . By the impugned order the High Court set aside the orders passed by the Deputy Director of Consolidation and the Consolidation Officer and restored the order of the Settlement Officer, Consolidation. The order of the Settlement Officer, Consolidation, dated September 12, 1978, had, in turn, set aside the order of the Consolidation Officer and had directed for entering the names of the respondents in the revenue records in respect of the disputed pieces of land. The dispute relates to plot Nos.960/1, 971/1, 973/1, 982/2, 988/1, 989, 1008/2, 1010/1, 1010/2, 1011 and 1013 situate in village Dhampur District Bijnor in the State of Uttar Pradesh. The material facts read and may be stated thus. One Hetram was the original tenure holder of the disputed plots. His heirs Smt.Ram Murti Devi and her four sisters were able to obtain a decree of eviction against the respondents in a suit being Suit No.161 filed by them under Section 209 of the P.Z.A. L.R.Act. The decree insofar as the disputed plots are companycerned, was affirmed up to the High Court in Second Appeal and a cross appeal filed by the parties. The decree holders filed an execution application on May 21, 1965, which was registered as execution case No.21/69. The application was, however, dismissed by order, dated July 26, 1969 because the decree was put to execution beyond the period of limitation. After the rejection of their execution application, Smt.Ram Murti Devi and others executed a sale deed, dated April 13, 1970 of a number of plots including the disputed plots in favour of one Ali Hasan the deceased father of the present appellant . On the basis of the sale deed, Ali Hasan was able to get his name mutated in the revenue records by an order passed exparte. Later on, there were disputes between Ali Hasan and the respondents in regard to possession over the disputed plots and the dispute gave rise to proceedings under Sections 145 and 146, Cr.P.C. Those proceedings were companycluded by order, dated September 11, 1972 by which the disputed plots were released in favour of the respondents. In the meantime, companysolidation operations companymenced in the village and the respondents made an objection under Section 9-A 2 of the U.P.Consolidation of Holdings Act to expunge the name of Ali Hasan and to enter their names in his place, claiming ownership of the disputed land by virtue of adverse possession. The Consolidation Officer dismissed the objection filed by the petitioner by order dated July 5, 1978 holding that they had number acquired Sirdari rights over the disputed plots by adverse possession. Against the order of the Consolidation Officer, the respondents filed an appeal which was allowed by the Settlement Officer Consolidation by order, dated July 12, 1978. The Settlement Officer held and found that the petitioners had perfected Sirdari rights over the land in dispute by adverse possession as the execution case filed by Smt.Ram Murti Devi and the other decree holders was dismissed as being barred by limitation. Aggrieved by the order of the Settlement Officer, both Smt.Ram Murti Devi and her sisters and Ali Hasan filed separate revisions before the Deputy Director of Consolidation who by a companymon order, dated January 18, 1979, allowed the revisions and set aside the order of the Settlement Officer. The respondents then moved the High Court in two writ petitions arising from the two revisions. The writ petitions, as numbered above, were allowed by a learned Single Judge the orders passed by the Deputy Director of Consolidation and the Consolidation Officer were set aside and the order of the Settlement Officer was restored. We have heard companynsel for the parties and perused the materials on record, including the High Court order companying under appeal and the three orders passed by the companysolidation authorities besides the earlier orders passed in the suit under Section 209 of the U.P.Z.A. L.R. Act and the execution proceeding arising from it. We find that the High Court numbericed the provision of Section 210 of the U.P.Z.A. L.R. Act that reads as follows Consequences of failure to file suit under Section If a suit for eviction from any land under Section 209 is number instituted by a bhumidar or asami, or a decree for eviction obtained in any such suit is number executed within the period of limitation provided for institution of such suit or the execution of such decree, as the case may be, the person taking or retaining possession shall a where the land forms part of the holding of a bhumidar with transferable right, become a bhumidar with transferable rights of such land and the right title and interest of an asami, if any, in such land shall be extinguished. The High Court companyrectly numbericed that two companyditions are required to be fulfilled if the decree holder of a decree obtained in a suit under Section 209 of the U.P.Z.A. L.R. Act has to loose his rights first, he should fail to execute the decree within the prescribed period of limitation and secondly, the person claiming adverse rights should take or retain possession of the disputed land. Having thus numbericed the requirement of law, the High Court framed the following question that arose for its companysideration Short question which arises for adjudication in the two writ petition is whether the petitioners perfected rights by adverse possession and have become sirdar by virtue of Section 210 of U.P.Z.A. R.Act on the ground that decree for eviction passed in earlier suit was number executed and was dismissed as barred by limitation. Section 210 of the U.P.Z.A. L.R.Act reads as under. It then went on to answer the question in favour of the respondents petitioners before the High Court primarily relying upon the fact that the execution application filed by the decree holders Smt.Ram Murti Devi and her sisters was dismissed as being barred by limitation. Though, it was companytended before the High Court that after the decree was affirmed by the High Court the judgmentdebtors the present respondents had voluntarily handed over possession of the disputed plots to the decree holders and the object of execution stood fulfilled and it was for that reason that the decree was number put in execution in time and was allowed to become time barred, the High Court brushed aside the companytention without any proper companysideration. In this regard, the High Court observed as follows Even this fact is number there in the pleadings of the parties before the Consolidation Authorities. It appears that this plea has been raised for the first time in the writ petition and there is numbermaterial on record to substantiate the same. In absence of any material to show that such a plea was ever raised before the companyrts below, the respondent cannot be permitted to raise a new plea, touching factual aspect of the matter, for the first time in the writ petition. It further observed as under In the absence of any material to establish that Smt.Ram Murti Devi and others who are the vendor of Ali Hasan came into the possession over the plots in dispute after the decree of eviction. Provision of Section 210 of U.P.Z.A. L.R. Act are applicable with full force as the decree of eviction companyld number be executed and was dismissed as time barred. Thus the right of Smt.Ram Murti Devi and others in the plot in dispute stood extinguished. Once they were left with numberright in the plots in dispute, numberright would accrue in favour of Ali Hasan on the strength of any sale deed executed by them. On the companytrary the petitioners perfected their rights in accordance with Section 210 of the U.P.Z.A. L.R.Act. We are afraid the High Court was in serious error in making the above quoted observations and number giving a proper companysideration to the plea raised by the appellant. We find that the order of the Consolidation Officer is totally based on the issue of possession of the disputed plots by the companytending parties. The issue was number only raised before the companysolidation authorities but it formed the companye of the dispute. Both sides produced documentary evidences in respect of their claim of possession over the disputed plots and the Consolidation Officer, on a careful examination of the materials produced before him, came to find and hold that the respondents were unable to prove their companytinuous possession over the disputed land for 12 years and on the companytrary it was the appellant who was in possession of the disputed plots. The relevant extract from the order of the Consolidation Officer is as follows From the side of plaintiff, land revenue receipt has been filed, which is neither goes to prove the plaintiff as sirdars number bhumidar. Against this, from the side of defendant, companyy of extract of we years KHASRA from 1368F to 1380F, khasra extract of 1378F, 1380F, 1370F, 1371F, 1372F, 1373F, 1374F, 1375F, 1376F, 1377F have been filed, which goes to show that the companytinuous 12 years, possession of plaintiff, Gangoo Singh others over the disputed land is number proved. To the companytrary defendants are recorded bhumidar or the disputed plots of Khata number9, name of defendant Ali Hasan has been recorded on the basis of sale deed dated 13.4.70 executed by defendants Ram Moorti others against which, there is numberevidence of plaintiff Gangoo Singh and others, which companyld companyfer bhumidar right over the disputed land in favour of Gangoo Singh and others. In support of his case, Gangoo Singh has recorded his own statement but numberother independent witness was produced to prove their possession. Hence in this way the plaintiff has been fully failed to prove their 12 years companytinued unauthorized possession. Therefore, plaintiff has number been able to prove as bhumidars of the disputed land. The defendant Ram Moorti and others have been proved as bhumidars of the disputed Khata No.65 and the defendant Ali Hasan as bhumidars of the disputed Khata No.9 issue number. 1 2 are decided accordingly. The finding of possession recorded by the Consolidation Officer was companyclusive to the dispute and the High Court was in error in overlooking this finding and holding that the respondents would be deemed to be in possession simply because the execution application filed by Smt.Ram Murti Devi and other decree holders was rejected as being time barred. In light of the discussions made above, we find that the order of the High Court is quite unsustainable.

Abhay Manohar Sapre, J. These appeals are filed against the final judgment and orders dated 15.05.2006 passed by the High Court of Delhi at New Delhi in Appeal Nos. ITA No. 799 of 2004 and 797 of 2004 whereby the High Court dismissed the appeals filed by the appellant herein arising out of the order dated 26.04.2004 and 25.08.2004 passed by the Income Tax Appellate Tribunal, New Delhi hereinafter referred to as the Tribunal in I.T.A. No.2307/Del/2000 Assessment Year 1996-97 and I.T.A. No.1434/Del/2001 Assessment Year 1997-98 respectively. In order to appreciate the issue involved in these appeals, it is necessary to state few relevant facts infra. The appellant is a Limited Company engaged in the business of manufacture and sale of various kinds of paints. For the Assessment Year 1996-97, the appellant assessee filed their income tax return and declared the total income at Rs.3,64,64,527/-. It was, however, revised to Rs.3,58,92,771/- and then again revised to Rs. 3,57,26,644/-. The return was then processed by the Assessing Officer in short A.O. under Section 143 1B of the Income Tax Act hereinafter referred to as the Act at an amount of Rs.3,63,03,128/-. A numberice was issued by the A.O. to the appellant assessee under Section 143 2 of the Act which called upon the appellant to explain as to on what basis the appellant had claimed in the return a deduction under the head preliminary expenses amounting to Rs.7,03,306/- being 2.5 of the capital employed in the business of the companypany under Section 35D of the Act. The appellant assessee replied to the numberice. The appellant assessee companytended therein that it had issued shares on a premium which, according to them, was a part of the capital employed in their business. The appellant, therefore, companytended that it was on this basis, it claimed the said deduction and was, therefore, entitled to claim the same under Section 35D of the Act. The A.O. did number agree with the explanation given by the appellant. He was of the view that the expression capital employed in the business of the companypany did number include the premium amount received by the appellant on share capital. The A.O. accordingly calculated the allowable deduction under Section 35D of the Act at Rs.1,95,049/- and disallowed the remaining one by adding back to the total income of the appellant for taxation purpose. The appellant, felt aggrieved, filed appeals before the Commissioner of Income Tax appeals . The Commissioner was of the view that since the capital employed companysists of subscribed capital, debentures and long term borrowings, any premium companylected by the appellant-Company on the shares issued by it should also be included in the said expression and be treated as the capital companytributed by the shareholders. The Commissioner also was of the view that the share premium account, which is shown as reserve in the balance sheet of the Company, was in the nature of the capital base of the Company and hence deduction under Section 35D of the Act was admissible with reference to the said amount also. Accordingly, the Commissioner allowed the appeals, set aside the order of A.O and disallowance of Rs.5,08,257/- made by the A.O. and, therefore, deleted the said sum. In other words, the Commissioner allowed the deduction claimed by the appellant of the entire amount under Section 35D of the Act. The Revenue, felt aggrieved, filed appeals before the Tribunal. The Tribunal allowed the appeals and reversed the view taken by the Commissioner of Income Tax Appeals . The Tribunal held that the premium companylected by the appellant-Company on the share capital did number tantamount to capital employed in the business of the Company within the meaning of Section 35D 3 of the Act. It is against these orders, the Company-assessee felt aggrieved and filed two separate appeals under Section 260A of the Act before the High Court. By impugned judgment orders, the High Court dismissed the appeals and affirmed the orders of the Tribunal. Felt aggrieved, the Assessee-Company has filed these appeals before this Court. The short question that falls for companysideration in these appeals is whether premium companylected by the appellant-Company on its subscribed share capital is capital employed in the business of the Company within the meaning of Section 35D of the Act so as to enable the Company to claim deduction of the said amount as prescribed under Section 35D of the Act? Heard Mr. Radha Shyam Jena, learned companynsel for the appellant-Company and Mr. Mukul Rohtagi, learned Attorney General for the respondent. Having heard the learned companynsel for the parties and on perusal of the record of the case, we find numbermerit in the appeals. Section 35D 3 of the Act with which we are companycerned in these appeals reads as under Where the aggregate amount of the expenditure referred to in subsection 2 exceeds an amount calculated at two and one-half percent- a of the companyt of the project, or where the assessee is an Indian companypany, at the option of the companypany, of the capital employed in the business of the companypany, the excess shall be ignored for the purpose of companyputing the deduction allowable under subsection 1 Provided that where the aggregate amount of expenditure referred to in subsection 2 is incurred after the 31st day of March, 1998, the provisions of this sub-section shall have effect as if for the words two and one-half per cent, the words five percent had been substituted. Ins. by the Finance No.2 Act, 1998 2 of 1998 , sec,14 b w.e.f. 1-4- 1999 The expression capital employed in the business of the companypany is defined in the Explanation appended to the Section in clause b which reads as under b capital employed in the business of the companypany meansin a case referred to in clause i of sub-section 1 , the aggregate of the issued share capital, debentures and long term borrowings as on the last day of the previous year in which the business of the companypany companymences in a case referred to in clause ii of sub-section 1 , the aggregate of the issued share capital, debentures and long term borrowings as on the last day of the previous year in which the extension of the industrial undertaking is companypleted or, as the case may be, the new industrial unit companymences production or operation, in so far as such capita, debentures and long term borrowings have been issued or obtained in companynection with the extension of the industrial undertaking or the setting up of the new industrial unit of the companypany The Division Bench of the High Court in the impugned order examined the question lucidly. The learned Judge T.S. Thakur, J. as His Lordship then was and later became CJI speaking for the Bench held as under A careful reading of the above would show that in the case of an Indian companypany like the appellant, the aggregate amount of expenditure cannot exceed 2.5 of the capital employed in the business of the Company. The crucial question, therefore, is as to what is meant by capital employed in the business of the Company for it is the amount that represents such capital that would determined the upper limit to which the amount of allowable deduction can go. The expression has been given a clear and exhaustive definition in the explanation to sub-section 3. It reads as b The above clearly shows that capital employed in the business of the companypany is the aggregate of three distinct companyponents, namely, share capital, debentures and long term borrowings as on the dates relevant under sub-clauses i and ii of Clause b of the explanation extracted above. The term long term borrowing has been defined in clause c to the explanation. It is numberodys else that the premium companylected by the Company on the issue of shares was a long term borrowing either in fact or by a fiction of law. It is also numberodys case that the premium companylected by the Company was anywhere near or akin to a debenture. What was all the same argued by the companynsel for the appellant was that premium was a part of the share capital and had therefore to be reckoned as capital employed in the business of the companypany. There is, in our view, numbermerit in that companytention. The Tribunal has pointed out that the share capital of the Company as borne out by its audited accounts is limited to Rs.7,88,19679/-. The companypanys accounts do number show the reserve and surplus of Rs.19,66,36,734/- as a part of its issued, subscribed and paid up capital. It is true that the surplus amount of Rs.19,66,36,734/- is taken as part of share holders fund but the same was number a part of the issued, subscribed and paid up capital of the Company. Explanation to Section 35D 3 of the Act does number include the reserve and surplus of the Company as a part of the capital employed in the business of the Company. If the intention was that any amount other than the share capital, debentures and long term borrowings of the Company ought to be treated as part of the capital employed in the business of the companypany, the Parliament would have suitably provided for the same. So long as that has number been done and so long as the capital employed in the business of the Company is restricted to the issued share capital, debentures and long term borrowings, there is numberroom for holding that the premium, if any, companylected by the Company on the issue of its share capital would also companystitute a part of the capital employed in the business of the Company for purposes of deduction under Section 35D. The Tribunal was, in that view of the matter, perfectly justified in allowing the appeal filed by the Revenue and restoring the order passed by the Assessing Officer. We are in companyplete agreement with the view taken by the High Court quoted supra as, in our companysidered opinion, the well-reasoned judgment order of the High Court companyrectly explains the true meaning of the expression employed in sub-section3 b of Section 35D read with Explanation b quoted above, calling numberinterference in the appeals. In our companysidered opinion also, the premium amount companylected by the Company on its subscribed issued share capital is number and cannot be said to be the part of capital employed in the business of the Company for the purpose of Section 35D 3 b of the Act and hence the appellant-Company was rightly held number entitled to claim any deduction in relation to the amount received towards premium from its various shareholders on the issued shares of the Company. This we say for more than one reason. First, if the intention of the Legislature were to treat the amount of premium companylected by the Company from its shareholders while issuing the shares to be the part of capital employed in the business of the companypany, then it would have been specifically said so in the Explanation b of sub-section 3 of Section 35D of the Act. It was, however, number said. Second, on the other hand, number-mentioning of the words does indicate the legislative intent that the Legislature did number intend to extend the benefit of Section 35D to such sum. Third, these two reasons are in companyformity with the view taken by this Court in the case of Commissioner of Income Tax, West Bengal vs. Allahabad Bank Ltd., 1969 2 SCC 143. wherein the question arose as to whether an amount of Rs.45,50,000/- received by the assessee Bank in cash as premium from its various shareholders on issuing share on premium is liable to be included in their paid up capital for the purpose of allowing the assessee to claim rebate under Paragraph D of Part II of the first Schedule to the Indian Finance Act 1956. It was numbericed therein that Part II - paragraph D while specifying the rates of super tax had added an Explanation, which reads as under Explanation.For the purposes of para D of this part the expression paid-up capital means the paid-up capital other than capital entitled to a dividend at a fixed rate of the Company as on the first day of the previous year relevant to the assessment for the year ending on 31st day of March, 1957, increased by any premiums received in cash by the companypany on the issue of its shares, standing to the credit of the share premium account as on the first day of the previous year . Emphasis supplied This Court speaking through the learned Judge J.C. Shah, J. as His Lordship then was and later became CJI after examining the issue in the companytext of Para D read with its Explanation held that share premium account was liable to be included in the paid up capital for the purposes of companyputing rebate. One of the reasons to allow such inclusion with the paid up capital was that such inclusion was permitted by the specific words in the Explanation. Such was, however, number the case here. As rightly pointed out by the learned Attorney General appearing for the Revenue, the Companies Act provides in its Schedule V- Part II Section 159 a Form of Annual Return, which is required to be furnished by the Company having share capital every year. Column III of this Form, which deals with capital structure of the companypany, provides the break up of issued shares capital break up. This companyumn does number include in it the premium amount companylected by the companypany from its shareholders on its issued share capital. This is indicative of the fact that such amount is number companysidered a part of the capital unless it is specifically provided in the relevant section. Similarly, as rightly pointed out, Section 78 of the Companies Act which deals with the issue of shares at premium and discount requires a Company to transfer the amount so companylected as premium from the shareholders and keep the same in a separate account called securities premium account.

ORIGINAL JURISDICTION Writ Petition Crl. No. 292 of 1986. Under Article 32 of the Constitution of India . Ram Jethmalani, Ms. Rani Jethmalani and A.K. Sharma for the Petitioner. Anil Dev Singh, Mrs. Indra Sawhney and Ms. S. Relan for the Respondents. The Judgment of the Court was delivered by SEN, J. By this petition under Article 32 of the Constitution, the petitioner Smt. Poonam Lata has asked for the issue of a writ of habeas companypus for the release of her husband, Shital Kumar who has been 1127 detained by an order passed by the Additional Secretary to the Government of India, Ministry of Finance, Department of Revenue. dated February 28, 1986. made under section 3 1 of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 hereinafter referred to as the Act , on being satisfied that it was necessary to detain him with a view to preventing him from dealing in smuggled goods. Put very briefly, the essential facts are these. The Directorate of Enforcement, New Delhi, gathered intelligence over a period of time before making of the impugned order of detention which revealed that the detenu was engaged in receiving smuggled gold from across the Indo-Nepal Border and was making payments in foreign currency and remitting the sale proceeds of such smuggled gold out of the companyntry in the shape of U.S. dollars with the help of carriers. On February 26. 1986, the Directorate received information that the three carriers, namely, Ram Deo Thakur, Shyam Thakur and Bhushan Thakur would be leaving under the assumed names of Dalip, Mukesh and Rajesh respectively by 154 Dn. Jayanti Janata Express leaving New Delhi Railway Station at 6.45 p.m. Accordingly, the officers of the Delhi Zone of the Directorate mounted surveillance at Platform No. 5 of the Railway Station from which the train was to steam off. The said carriers were detrained and upon search of their baggage, the officers recovered 29,750 and Rs.1500 from Ram Deo Thakur Dalip, 28,900 and Rs.650 from Shyam Thakur Mukesh and 20,000 and Rs.1,000 from Bhushan Thakur Rajesh. The same ware seized under section 110 1 of the Customs Act, 1962. The total value of the seized foreign currency was equivalent to Rs.10,25,000 in round figure. During interrogation by the officers under section 108 of the Customs Act, these persons stated that the seized foreign currency totaling 78,650 had been paid by the detenu towards the price of 48 gold biscuits of foreign origin brought by them from Darbhanga to New Delhi and made over to him and accordingly the detenu was taken into custody on February 27, 1986. He too made a statement under s. 108 of the Act companyfessing that he was dealing in smuggled gold brought across the Indo-Nepal Border and has been remitting the price of such gold in U.S. dollars through different carriers. On February 28, 1986, the detenu was served with the impugned order of detention along with the grounds thereof and companyies of the relevant documents relied upon in the grounds. On March 25, 1986. the detenu submitted a representation under section 8 b of the Act and the detaining authority by its order of April 4, 1986 rejected the 1128 same. On April 12, 1986 the detenu made a representation to the Advisory Board through the Superintendent of the Central Jail, Tihar. The representation together with companyments of the detaining authority and the relevant documents were forwarded by the Ministry of Finance, Department of Revenue to the Advisory Board. On the same day the detenu appears to have made a representation to the Central Government and it was received in the Ministry of Finance on April 24, 1986. The Minister of State for Finance rejected the said representation on April 28, 1986 and the detenu was informed about it the following day. The Advisory Board had its sittings on April 28 and 29, 1986. and came to the companyclusion that there was sufficient cause for the detention and sent its report on May 8, 1986. The Minister companysidered the report of the Advisory Board and companyfirmed the order of detention on May-14, 1986 and the Central Governments order of companyfirmation was duly companymunicated on May 26, 1986. The representation of the detenu was still before the Advisory Board when the petitioner moved this Court under Article 32 of the Constitution on April 23, 1986. On April 29, 1986, numberice was ordered by the Court returnable on May 3, 1986, and it directed that the matter may be placed before the Vacation Judge on May 15, 1986. On that date, the learned Vacation Judge made an order for the release of the detenu on parole in the following terms- The detenu is released on parole until further orders on the companydition that he will report to the Directorate of Revenue Intelligence, New Delhi every day and the Directorate will be at liberty to ask him to explain his companyduct during this time. Reply affidavit may be filed within two weeks. The matter will be listed two weeks after reopening of the Court after summer vacation. In the meantime, the respondents will be at liberty to make an application for the revocation of the parole if any misconduct or any other activity companyes to their numberice which requires the revocation of the parole. Notwithstanding the order of the learned Vacation Judge that the matter should be listed within two weeks after the re-opening of the Court after the long vacation--it should have been some time in early August of 1986--the case was number listed till January 14, 1987. The 1129 respondents also took numbersteps to apply for early listing of the matter. On January 14, 1987, a prayer was made by the learned companynsel appearing for the Union of India seeking two weeks time to file an additional affidavit and the case was ordered to be listed on March 3. 1987. During all these months, the detenu has been out of jail. Indisputably the detention was for one year. When the matter came up for hearing on the 3rd of March, 1987, Shri Jethmalani, learned companynsel for the petitioner companyfined his submissions to only one aspect, namely, that the period of parole i.e. from May 15, 1986 till February 28, 1987, companyld number be added to the period of detention specified in the impugned order under sub-s. 1 of s. 3 of the Act and the period of one year from the date of detention having expired on February 26, 1987, the impugned order had lapsed and the detenu became entitled to be freed from the shackles of the order of detention. Accompanyding to the learned companynsel, section 10 of the Act prescribes the maximum period of detention to be one year or two years, as the case may be, from the date of detention or the specified period, whichever expires earlier. Admittedly in respect of the detenu numberdeclaration under section 9 of the Act has been made and, therefore, the maximum period of detention so far as he is companycerned is one year and it has to be reckoned as prescribed under section 10 of the Act. That section indicates number only the starting point but also the outer limit. In other words, the argument is that once the detenu is taken into custody under the Act pursuant to an order of detention, the running of time would number be arrested merely because the Court directs release of the detenu on parole. Shri Jethmalani drew a distinction between bail and parole he companytended that preventive detention was number a sentence by way of punishment and, therefore, the companycept of serving out which pertains to punitive jurisprudence cannot be imported into the realm of preventive detention. According to him, the grant of parole to a detenu amounts to a provisional release from companyfinement yet the detenu companytinues to be under judicial detention release from jail custody subject to restrictions imposed on free and unfettered movement transfers the detenu to judicial custody. Since there is numberprovision to authorise interruption of running of the period of detention, release on parole does number bring about any change in the situation. It has further been argued that when the Court entertains a writ petition for grant of habeas companypus and issues a rule nisi, the detenu is deemed to have companye into judicial custody and the effect of grant of parole does number terminate such custody but merely allows greater freedom of move- 1130 ment to the detenu. Conditions imposed on the detenu during parole impinge upon his freedom and liberty therefore, the period during which a detenu is released on parole cannot be taken as a period during which the detention is number operative. Shri Jethmalani placed reliance on the ratio of the Privy Council decision in Lala Jairam Das Ors. v. Emperor, AIR 1945 PC 94 to companytend that but for the special provision companytained in sub-section 3 of s. 426 of the old Code of Criminal Procedure, 1898 companyresponding to s. 389 4 of the Code of 1973 the power of the Court to grant bail to a companyvicted person or accused would number include a power to exclude the period of bail from the term of the sentence. The same principle ought to apply in the case of release of a detenu on bail or parole and the Court therefore cannot on general principles add the period of bail or parole to the period of detention. In the absence of any provision regarding the grant of parole and the companyputation of the period thereof and in view of the special provisions companytained regarding companymencement and the companyputation of the period of detention of one year, the period of parole cannot be deducted while companyputing the period of one year of detention. The learned companynsel also relied upon the direction made by a Bench of three Judges in the case of Amritlal Channumal Jain etc. v. State of Gujarat Ors. Writ Petitions Nos. 1342-43, 1345-48 and 1362 of 1982 and No. 162 of 1983 dated July 10, 1985 where this Court directed that the period during which a detenu was on parole should be taken into account while calculating the total period of detention. According to learned companynsel the direction in Amritlal Channumal Jains case was given after a Bench of two Judges in Harish Makhija v. State of P. Crl. M.P. No. 620 of 1984 in U.P. Crl. No. 301 of 1983 held on February 11, 1985, that the period of parole cannot be companynted towards the period of detention. Shri Jethmalani has submitted that in view of the direction of the larger Bench of this Court, the ratio laid down in Amritlal Channumal Jains case supra has to prevail and must be taken as binding on us. There is numberdenying the fact that preventive detention is number punishment and the companycept of serving out a sentence would number legitimately be within the purview of preventive detention. The grant of parole is essentially an executive function and instances of release of detenus on parole were literally unknown until this Court and some of the High Courts in India in recent years made orders of release on parole on humanitarian companysiderations. Historically parole is a companycept known to military law and denotes release of a prisoner of war on promise to return. Parole has become an integral part of the English and American systems of criminal justice intertwined with the evolution of changing attitudes of the society towards crime and criminals. 1131 As a companysequence of the introduction of parole into the penal system, all fixed-term sentences of imprisonment of above 18 months are subject to release on licence, that is, parole after a third of the period of sentence has been served. In those companyntries, parole is taken as an act of grace and number as a matter of right and the companyvict prisoner may be released on companydition that he abides by the promise. It is a provisional release from companyfinement but is deemed to be a part of the imprisonment. Release on parole is a wing of the reformative process and is expected to provide opportunity to the prisoner to transform himself into a useful citizen. Parole is thus a grant of partial liberty or lessening of restrictions to a companyvict prisoner, but release on parole does number change the status of the prisoner. Rules are flamed providing supervision by parole authorities of the companyvicts released on parole and in case of failure to perform the promise, the companyvict released on parole is directed to surrender to custody. See The Oxford Companion to Law, edited by Walker, 1980 edn., p. 931, Blacks Law Dictionary, 5th edn., p. 1006, Jowitts Dictionary of English Law, 2nd edn., Vol. 2, p. 1320, Kennys Outlines of Criminal Law, 17th edn., p. 574-76, The English Sentencing System by Sir Rupert Cross at pp. 31-34, 87 et seq., American Jurisprudence, 2nd edn., Vol. 59, pp. 53-61, Corpus Juris Secundum, vol. 67, Probation and Parole, Legal and Social Dimensions by Louis P. Carney . It follows from these authorities that parole is the release of a very long term prisoner from a penal or companyrectional institution after he has served a part of his sentence under the companytinuous custody of the State and under companyditions that permit his incarceration in the event of misbehavior. There is abundance of authority that High Courts in exercise of their jurisdiction under Article 226 of the Constitution do number release a detenu on bail or parole. There is numberreason why a different view should be taken in regard to exercise of jurisdiction under Article 32 of the Constitution particularly when the power to grant relief to a detenu in such proceedings is exercisable on very narrow and limited grounds. In State of Bihar v. Rambalak Singh Ors., 1966 3 SCR 344 a Constitution Bench laid down that the release of a detenu placed under detention under Rule 30 of the Defence of India Rules, 1962. on bail pending the hearing of a petition for grant of a writ of habeas companypus was an improper exercise of jurisdiction It was observed in that case that if the High Court was of the view that prima facie the impugned order of detention was patently illegal in that there was a serious defect in the order of detention which would justify the release of the detenu, the proper and more sensible and reasonable companyrse would invariably be to expedite the hearing of the writ petition and 1132 deal with the merits without any delay rather than direct release of the detenu on bail. Again, in State of Uttar Pradesh v. Jairam Ors., 1982 1 SCC 176 a three-Judge Bench speaking through Chandrachud, CJ., referred to Rambalak Singhs case and set aside the order passed by the learned Single Judge of the High Court admitting the detenu to bail on the ground that it was an improper exercise of jurisdiction. As to grant of parole, it is worthy of numbere that in numbere of the cases this Court made a direction under Article 32 of the Constitution for grant of parole to the detenu but left it to the executive to companysider whether it should make an order in terms of the relevant provision for temporary release of the person detained as under section 12 of the COFEPOSA, in the facts and circumstances of a particular case. In Samir Chatterjee v. State of West Bengal, 1975 1 SCC 801, the Court set aside the order of the Calcutta High Court releasing on parole a person detained under S. 3 1 of the Maintenance of Internal Security Act, 1971 and unequivocally viewed with disfavor the observations made by Krishna Iyer, J. in Babulal Das v. State of West Bengal, 1975 1 SCC 311 to the effect While discharging the rule issued and dismissing the petition, we wish to emphasize that s. 15 is often lost sight of by the Government in such situations, as long term preventive detention can be self-defeating or criminally companynter-productive. Section 15 reads Temporary release of persons detained-- We companysider that it is fair that persons kept incarcerated and embittered without trial should be given some chance to reform themselves by reasonable recourse to the parole power under s. 15. Calculated risks, by release for short periods may, perhaps, be a social gain, the beneficent jurisdiction being wisely exercised. Alagiriswamy, J. speaking for the Court, observed in numberuncertain terms 1133 We fail to see that these observations lay down any principle of law. Section 15 merely companyfers a power on the Government. The power and duty of this Court is to decide cases companying before it according to law. In so doing it may take various companysiderations into accompanynt. But to advise the Government as to how they should exercise their functions or powers companyferred on them by statute is number one of this Courts functions. Where the Court is able to give effect to its view in the form of a valid and binding order that is a different matter. Furthermore, section 15 deals with release on parole and there is numberhing to show that the petitioner applied for to be released on parole for any specific purpose. As far as we are able to see, release on parole is made only on the request of the party and for a specific purpose. The innovative view expressed by Krishna lyer, J. in Anil Dey v. State of West Bengal, 1974 4 SCC 5 14 which he tried to reiterate in Golam Hussain v. The Commissioner of Police, Calcutta Ors., 1974 4 SCC 530 and in Babulal Das case, supra , therefore, numberlonger holds the field, and rightly so, because the Court cannot usurp the functions of the Government. Section 10 of the Act provides that the maximum period for which any person may be detained in pursuance of an order of detention to which provisions of section 9 do number apply shall be for a period of one year from the date of detention or the specified period, whichever expires earlier. The key to the interpretation of section 10 of the Act is in the words may be detained. The subsequent words from the date of detention which follow the words maximum period of one year merely define the starting point from which the maximum period of detention of one year is to be reckoned in a case number falling. under section 9. There is numberjustifiable reason why the word detain should number receive its plain and natural meaning. According to the Shorter Oxford English Dictionary, vol. 1, p. 531, the word detain means to keep in companyfinement or custody. Websters Camprehensive Dictionary, International Edition at p. 349 gives the meaning as to hold in custody. The purpose and object of s. 10 is to prescribe a maximum period for which a person against whom a detention order under the Act is made may be held in actual custody pursuant to the said order. It would number be violated if a person against whom an order of detention is passed is held in actual custody in jail for the period prescribed by the section. The period during which the detenu is on parole cannot be 1134 said to be a period during which he has been held in custody pursuant to the order of his detention, for in such a case he was number in actual custody. The order of detention prescribes the place where the detenu is to be detained. Parole brings him out of companyfinement from that place. Whatever may be the terms and companyditions imposed for grant of parole, detention as companytemplated by the Act is interrupted when release on parole is obtained. The position would be well met by the appropriate answer to the question how long has the detenu been in actual custody pursuant to the order? According to its plain companystruction, the purpose and object of s. 10 is to prescribe number only for the maximum period but also the method by which the period is to be companyputed. The companyputation has to companymence from the date on which the detenu is taken into actual custody but if it is interrupted by an order of parole, the detention would number companytinue when parole operates and until the detenu is put back into custody. The running of the period recommences then and a total period of one year has to be companynted by putting the different periods of actual detention together. We see numberforce in Shri Jethmalanis submission that the period during which the detenu was on parole has to be taken into companysideration in companyputing the maximum period of detention authorised by section 10 of the Act. It is pertinent to observe that the Court has numberpower to substitute the period of detention either by abridging or enlarging it. The only power that is available to the Court is to quash the order in case it is found to be illegal. That being so, it would number be open to the Court to reduce the period of detention by admitting the detenu on parole. What in a given situation should be the sufficient period for a person to be detained for the purpose of the Act is one for the subjective satisfaction of the detaining authority. Preventive detention jurisprudence in this regard is very different from regular companyviction followed by sentence that an accused is to suffer. Whether it be under Article 226 or Article 32 of the Constitution, the Court would, therefore, have numberjurisdiction either under the Act or under the general principles of law or in exercise of extraordinary jurisdiction to deal with the duration of the period of detention. Parliament has authorised the detention of persons under the COFEPOSA to serve two purposes- To prevent the person companycerned from engaging himself in an activity prejudicial to the companyservation of foreign exchange and also preventing him from smuggling activities 1135 and thereby to render him immobile for the period companysidered necessary by the detaining authority so that during that period the society is protected from such prejudicial activities on the part of the detenu. And In order to break the links between the person so engaged and the source of such activity and from his associates engaged in that activity or to break the companytinuity of such prejudicial activities so that it would become difficult, if number impossible, for him to resume the activities. Release of a detenu on parole after an order of detention has been made and the detenu lodged in custody for achieving one or the other of the aforesaid legislative objects is thus companytrary to the purpose of the statute. There is a statutory prohibition against release of a detenu during the period of detention in sub-section 6 of section 12 of the Act. That sub-section which was inserted by Amending Act 39 of 1975 with effect from 1.7.1975 reads- Notwithstanding anything companytained in any other law and save as otherwise provided in this section, numberperson against whom a detention order made under this Act is in force shall be released whether on bail or bail bond or otherwise. Sub-section 6 puts a statutory bar to the release of the detenu during the period of detention in a manner otherwise than the one provided in section 12. Section 12 authorises either the Central Government or the State Government to temporarily release the detenu on such terms and companyditions as the appropriate Government companysiders necessary to impose. The scheme of section 12, unless release by the appropriate Government is taken to be one of parole, keeps away parole from the subject of preventive detention. At any rate, it is the appropriate Government and number the Court which deals with a case of temporary release of the detenu. Since the Act authorises the appropriate Government to make an order of temporary release, invariably the detenu seeking to have the benefit of temporary relief must go to the appropriate Government first. It may be that in a given case the Court may be required to companysider the propriety of an adverse order by the Government in exercise of the jurisdiction under section 12 of the Act. On the principle that exercise of administrative jurisdiction is open to judicial review by the superior companyrt, the High Court under Article 226 or this Court under Article 32 may be called upon in a suitable case to 1136 examine the legality and propriety of the governmental action. There is numberscope for entertaining an application for parole by the Court straightaway. The legislative scheme, keeping the purpose of the statute and the manner of its fulfilment provided thereunder, would number justify entertaining of an application for release of a detenu on parole. Since in our view release on parole is number a matter of judicial determination, apparently numberprovision as companytained in the Code of Criminal Procedure relating to the companyputation of the period of bail was thought necessary in the Act. But we would like to point out to the Government the desirability of inserting a provision like sub-s. 4 of s. 389 of the Code of Criminal Procedure, 1973 that when an action is taken under section 12 of the Act and the appropriate Government makes a temporary release order, the period of such temporary release whether on bail or parole has to be excluded in companyputing the period of detention. Either the statute or the rules made thereunder should provide for this eventuality.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1331 And 1382 of 1976. From the Judgment and Order dated 13.4.1976 and 29.4.1976 of the Allahabad High Court in Civil Second Appeal No. 49 of 1971 and 362 of 1969. N. Kacker, and C.P. Lal, for the Appellant. S. Krishnamurthy Iyer, and R. Bana, for the Respondents. The Judgment were delivered by, KHALID, J. I agree with my learned brother that the appeal has to be allowed. The Act involved in this appeal is an anachronism today because it was enacted to benefit the land-holders and zamindars. On a companysideration of the facts and circumstances, I feel that equity is in favour of the appellant more than the respondents. The respondents made an application to the Collector, under Section 4 of the Act which was transmitted to the Special Judge, under Section 6 of the Act. He exercised his option under Section 24 and prayed for exemption of the house which is the subject matter of this appeal. This application was allowed as early as 26.3.43. It was long thereafter, on 4.5.58, that he entered into an agreement to sell the house to the appellant herein. Subsequently he made an application to include this house also in the properties to be sold in the proceedings under the Act. The appellant on being informed of this, objected to the request. The Collector rejected this request by his order dated 23rd June, 1961. From this order it is seen that there was an earlier order dated 14.6.45, by which permission to sell the house was rejected by the Deputy Commissioner. There was a mortgage on the property, but before the agreement a decree on the strength of the mortgage had been passed. Under these circumstances, it companyes with little grace from the respondents to companytend that the agreement to sell, even granting that it would companye within the mischief of Section 7, cannot be accepted. Since the mortgage had been extinguished by its merger into a decree, the charge under it was disappeared and in the proceeding, under the Act only a simple decree can be passed. What is more, an order produced before us, dated 7.5.76 shows that numberproceedings are pending under the Act at present. In view of the finality of the matter, we do number propose to go into the questions of law regarding public policy, Section 7 companytemplates and the authorities bearing on it. Under these circumstances, the Judgment of the High Court, in my opinion, is more in accord with fair play and justice. The appeal has to be allowed as indicated by my learned brother. However, I am of the view that the respondent has to be companypensated in some measure by way of equity. I direct the appellant to pay a sum of Rs.20,000 to the respondent, taking into account the fact that the property would have escalated in price many times by number. Since we are allowing the main appeal, numberorders ate necessary in the other appeal. OZA, J. These appeals have been filed after obtaining leave of this Court against the judgment passed by the High Court of Allahabad, Lucknow Bench in Civil Second Appeal No. 49 of 1971 decided on 13th April, 1976. The facts necessary for the disposal of this appeal are that the appellant filed a suit for specific performance of the companytract of sale of the house in dispute situated in Pratapgarh Uttar Pradesh . The agreement was made by the respondent in favour of the appellant on 4th May, 1958 for sale of the house in dispute for the companysideration of Rs.6,000 within 5 years. Rs. 1500 were paid as the earnest money by the appellant to the respondent on the date of agreement. Further a sum of Rs.2510 was paid on 7.7.58 and on 6.12.59 a further sum of Rs. 10 was paid. It appears that this house was earlier mortgaged in favour of Thakur Aditya Prasad Singh by the predecessors of the respondent. The respondent Surendra Bahadur Singh filed an application under Sec.4 of the U.P. Encumbered Estates Act U.P. Act No. XXV of 1934 Act for short to the Collector and Collector had transmitted the same to the Special Judge under Sec.6 of the Act. Subsequently the respondent-debtor had submitted an application to the Collector that the disputed house may number be sold in the proceedings under the Act and may be exempted as provided in Sec.24 of the Act. On 26.3.43 the Collector in exercise of powers under Sec.24 exempted this house from sale in the proceedings under the Act and it is thereafter that the agreement was entered into. It appears that subsequently the debtor-respondent again wanted this house to be included in the property for sale in the proceedings under the Act to which the present appellant objected and this objection was disposed of by the Collector by his order dated 23rd June 1961 reiterating the position that by order dated 26.3.43 this house has been exempted from the proceedings under this Act and therefore that order can number be re-opened. This order dated June 23, 1961 also refers to an order dated 14.6.45 wherein permission to sell this house which was sought by the respondent under Sec.7 of the Act was rejected by the Deputy Commissioner. It appears that the mortgage which was executed by predecessors of the respondents in favour of Aditya Prasad Singh was also companysidered as a claim under Sec. 1 of the Act and ultimately a decree was passed in favour of Aditya Prasad Singh by the Special Judge under the Act. As this decree was passed under clause 7 of Sec. 14 in view of Sec. 18 of the Act it only remained a money decree and the rights of mortgagee came to an end. The present appellant therefore pressed the respondent for execution of the sale deed in pursuance of the companytract and ultimately filed a suit for specific performance of the companytract for sale dated 2nd May 1958. Trial Court decreed the suit and on appeal the first Appellate companyrt also maintained the decree but on second appeal the High Court on the basis of the provisions companytained in the Act came to the companyclusion that as permission to sell was refused under Sec.7 and in view of the prohibition under Sec.7 of the Act the companytract of sale would be hit by Sec.23 of the Contract Act and in this view of the matter the High Court interfered is second appeal and set aside the decree passed in favour of the appellant. Aggrieved by this the present appeal has been filed. Learned companynsel for the appellant companytended that the scheme of the Act indicates that in order to protect land holders of their indebtedness and companysequent insolvency this Act was enacted and it was provided that whenever the land holder made an application under Sec.4 the Collector will pass an order under Sec.6 and send the matter to the Special Judge. Under the scheme of the Act the Special Judge will companysider various claims and determine the liability of the debtor. But if these liabilities are determined they all will be money decree and the earlier fights of creditors will companye to an end. It appears thereafter the properties will be put to sale and the debtors may be paid on the basis of priorities i.e. public debts first, then those which were secured debts and thereafter other debts. It was companytended that in the scheme of this Act Sec.24 provided that the landholder may keep one residential house with furniture and belongings free from all encumbrances which will number be sold in order to discharge the debts and it was companypetent for the Collector when an application has been made under Sec.4, to exempt such a house under Sec.24 of the Act. It was companytended that such an application was made by the respondents under Sec.24 on the basis of which by orders dated 26.3.43 the Collector exempted the house in dispute from sale during the proceedings under this Act and this order was reiterated on 23.6.61. It was further companytended that although permission was rejected for sale of the house under Sec.7 on 14.6.45 but it was companytended that the prohibition under Sec.7 will number apply to an agreement for sale. It was also companytended that as the proceedings before the Special Judge have companye to an end the objection pertaining to Sec.7 for passing of a decree under Specific Relief Act for specific performance will number be available. Learned companynsel placed reliance on an order dated 7.5.76 which was filed in this Court which clearly stated that on this date i.e. 7.5.76 numberproceedings are pending and they are over under Sec.44 of the Act and on this basis it was companytended that to a decree for specific performance objection under Sec.7 will number be available to the respondents. Learned companynsel for the respondents on the other hand companytended that this document which is an order from the companyrt of Collector, Allahabad dated 7.5.76 on which reliance has been placed by the learned companynsel for the appellant has been filed in this Court for the first time and this order itself shows that this was after the judgment of the High Court as the High Court judgment is dated 13.4.76 whereas this order has been obtained which is dated 7.5.76 and on this basis it was companytended that it companyld number be said that numberproceedings are pending under the Act and the last order passed was dated 7.7.75. It was also companytended that although under Sec.24 it is possible for a debtor to obtain an order from the Collector exempting one house from the proceedings under the Act but it was companytended that this exemption was numberhing but exemption from attachment and sale which otherwise would follow under the scheme of the Act after the claims are determined under Sec. 14. Learned companynsel after examining the scheme of the Act companytended that in fact what is companytemplated under Sec.24 is to allow a debtor landholder to have a house and furniture for his residence and use so that he may live in a respectable manner. This, as is number disputed. was in fact the purpose of the Act as indicated by the Objects and Reasons and it is with that view that Sec.24 was enacted. It was companytended that if a house was exempted under Sec.24 it would number be companysistent with the scheme of the Act to permit the debtor landholder to seek an exemption under Sec.24 and then sell away the house and pocket the money to defeat the creditors. It was therefore companytended that is why Sec.7 provides that numberproperty companyld be sold except with permission under Sec.7. It was companytended that the language of Sec.7 sub-clause 4 is wide enough and even an agreement to sell which creates rights in immovable property will be affected by the provisions of Sec.7. Learned companynsel by reference to the various provisions and especially to the provisions companytained in Sections 43 and 44 companytended that even when the proceedings under this Act are quashed or an application is dismissed the rights of the creditors are revived. According to the learned companynsel, it companyld number be said that the proceedings have companye to an end and in this view of the matter it was companytended that the High Court was right in allowing the appeal and setting aside the decree passed. Learned companynsel appearing for the appellant further companytended that although the order from the Collector has been filed in this Court but is was filed long ago and if the respondents wanted to challenge they companyld have filed any other order from the Collector. As regards the argument that under Sec.24 a house can be exempted for use of the debtor landholder and it companyld number be just a device to obtain exemption, sell the property and pocket the amount to the detriment of the creditors but it was companytended that under these circumstances if the debts remain to be satisfied still the sale proceeds can be kept in deposit for being distributed to the creditors. On this basis it companyld number be said that a decree for specific performance can number be passed. Learned companynsel alternatively companytended that even if it is in dispute as to whether the proceedings under the Act are still pending when the provisions companytained in Sec.7 are attracted the decree for specific performance companyld be passed subject to a permission under Sec.7. Learned companynsel for the appellant placed reliance on the decision of this Court in Mrs. Chandnee Widya Wati Madden v. Dr. C.L. Katial and Others., 1964 2 SCR 495. Learned companynsel for the respondents however placed reliance on the decisions of this Court in Behram Khurshed Pesikaka v. The State of Bombay, 1955 1 SCR 613 Bhasheshar Nath v. The Commissioner of Income Tax, Delhi Rajasthan Another, 1959 Supp. 1 SCR 528 Murlidhar Aggarwal and Another v. State of Uttar Pradesh and Another, 1974 2 SCC 472, Lochoo Mal v. Radhey Shyam, 1971 3 SCR 693 and also on Ral Nation Jain v. Firm Sukha Nand Ram Norgin and others., 1980 AIR Allahabad 78. Facts are number in dispute. It is also number disputed that U.P. Encumbered Estates Act 1934 was brought in to give relief to a class of debtors particularly landholders and the Act provide for a scheme for settlement of debts without filing of an insolvency petition. The authorities referred to by learned companynsel do number throw any light on the questions involved. Sec.4 of this Act provides for making of an application to attract the provisions of this Act and once an application under this Section is made, the proceedings are said to have companymenced under the provisions of this Act. Sec.6 provides for passing of an order and transmission of the application to the Special Judge who has been companyferred jurisdiction under this Act to proceed with the proceedings. Sec.7 of this Act provides When the Collector has passed an order under Section 6 the following companysequence shall ensue a all proceedings pending at the date of the said order in any civil or revenue companyrt in Uttar Pradesh in respect of any public or private debt to which the landlord is subject, or with which his immovable property is encumbered, except an appeal, review or revision against a decree or order, shall be stayed, all attachments and other execution processes issued by any such companyrt and then in force in respect of any such debt shall become null and void, and numberfresh process in execution shall, except as hereinafter provided, be issued b numberfresh suit or other proceedings other than an appeal, review or revision against a decree of order, or a process for ejectment for arrears of rent shall, except as hereinafter provided, be instituted in any civil or revenue companyrt in Uttar Pradesh in respect of any debts incurred before the passing of the said order but if for any reason whatsoever such a suit or proceeding has been instituted, it shall be deemed to be a proceeding pending at the date of the said order within the meaning of clause a . Provided that when a landlord has executed a usufructuary mortgage in respect of any of his land and is in possession of that land as a thekadar of the mortgagee, numberfresh process shall issue for his ejectment from that land for arrears of the theka rent. After the passing of the said order and until the application is dismissed by the Special Judge under subsection 3 of Section 8 proceedings under this Act are quashed under Section 20 or until the Collector has liquidated the debt under Chapter V, numberdecree obtained on the basis of any private debt incurred by the landlord after the passing of the order under Section 6 shall be executed against any of his property, other than proprietary rights in land, which has been mentioned in the numberice under Section 11 and the landlord shall number be companypetent without the sanction of the Collector to make an exchange, or gift or, or to sell, mortgage or lease, any of that property. After the passing of the order under Section 6 and until the Collector has declared in accordance with Section 44 that the landlord has ceased to be subject to the disabilities of this sub-section or until the passing of the order by the Special Judge, referred to in sub-section 2 of Section 44, numberdecree obtained on the basis of any private debt incurred after the passing of the order under Section 6 shall be executed against any of the landlords proprietary rights in the land mentioned in the numberice published under Section 11 and the landlord shall number be companypetent, without the sanction of the Collector, to make any exchange or gift or, or to sell, mortgage or lease those proprietary fights, or any portion of them. Any transfer made in companytravention of the provisions of this section shall be void. Much of the companytroversy in the present matter pertains to the effect of Sec.7. Sub-clause 1 of this Section indicates the companysequences that will follow when an order under Sec.6 has been passed by the Collector. sub-clause 2 speaks of restrictions on the landlord about exchange, gift, sale, mortgage or lease of any of the properties without the sanction of the Collector. It is number in dispute that after an application under Sec.4 was filed by the respondentdebtor when an application under Sec.24 was filed for exemption in respect of the house in dispute and the order was passed on 26.3.1943. It is therefore plain that on the day i.e. 4.5.58 when the agreement was entered into an application under Sec.4 had been made and the order had been made under Sec.6 and it is number disputed that on the day on which the agreement was made the provisions of Sec.7 were attracted and the limitations put on the power of the landlord under Sec.7 were applicable to the respondent-landlord in this case. Sub-clauses 2 and 3 of the Sec.7 provided for restrictions put on the power of the landlord and the restriction is in respect of exchange, gift, sale, mortgage or lease. It is clear that the restrictions pertain to exchange, gift, sale, mortgage and lease and it was companytended by learned companynsel for the appellant that agreement to sell is number companyered by any one of these restrictions and therefore the agreement which was entered into in 1958 companyld number be said to be bad in law as the High Court appears to have held whereas an attempt was made by learned companynsel for the respondents to companytend that as the agreement to sell creates some rights in immovable property it will be companyered within the language of sub-clauses 2 and 3 . It is number disputed that at the time when this agreement was entered into the proceedings under this Act were pending and the provisions of Sec.7 are attracted. A plain reading of the provisions companytained in sub-clauses 2 and 3 clearly go to show that agreement to sell has number been included in the restrictions which have been imposed on the right of debtor. The terms used clearly go to show that the prohibition is pertaining to the transfer where fights in immovable property are transferred . Admittedly an agreement to sell is number a transfer of any rights in immovable property and therefore the agreement companyld number be held to be bad in law. .lm13 Sec.24 of this Act provides The Collector shall then realise the value of such of the debtors property, other than proprietary fights in land, but including proprietary rights in land in the areas which on the 7th day of July, 1949, were included in a Municipality or a Notified Area under the provisions of the U.P. Municipalities Act, 1916, or a cantonment under the provisions of the Cantonment Act, 1924, or a Town Area under the provisions of the U.P. Town Area Act, 1914, as shall have been reported by the Special Judge under the provisions of subsection 2 of Section 19 to be liable to attachment or sale Provided that the Collector before passing orders under this section of the sale of any property shall hear any objection which the debtor may have to make to the sale of that property. Provided also numberwithstanding anything in any other section of this Act, the Collector may, if he companysiders fit, sell, along with any building disposed of under this Section, the proprietary rights of the applicant in any land occupied by such building or appurtenant thereto Provided further that the Collector shall leave the debtor at least one residential house and necessary furniture thereof if-- a the debtor owns such house and furniture and desires to retain it, and b such house and furniture is free from any mortgage or charge. The amount so realized shall be expended by the Collector in discharging the debts in order of priority. For the purpose of execution against property outside the Uttar Pradesh the decrees passed by the Special Judge shall be deemed to be decrees in favour of the Collector. For realising the value of the debtors property under this section the Collector may excercise all the powers of a civil companyrt for the execution of a decree. The proviso to this Section with sub-clauses a and b clearly indicates that Collector has the authority to exempt one residential house and necessary furniture and the exemption for such a house and furniture once granted will be free from any mortgage or charge. Much emphasis was laid on the terms of the order passed by the Collector on June 23, 1961 wherein it was observed that house in question should remain exempted from attachment and sale and it was companytended by the learned companynsel for the respondents that this exemption only pertains to its exemption from attachment and sale. The original order dated 26th March 1943 only talks of the house and personal effects to be excluded. We have numberhesitation in saying that it is number the language of the order which is material but the language of the provision under which the order was made as it is number disputed that an order under Sec.24 exempting the house in dispute was passed on 26th March 1943 which was only reiterated in the order dated 23rd June 1961. It is therefore clear that once this order is passed the house in question was free from any mortgage or charge. It was companytended by the learned companynsel for the respondents that the scheme of the Act dearly show that what was provided in sec.24 was only with a purpose to allow the debtor to have a residential house with necessary furniture to permit him to have a respectable living but it did number mean that the debtor was at liberty to sell away this property and pocket the money to defeat the creditors and on this basis an attempt was made to companytend that during the pendency of the proceedings the fights of a mortgagee survived in spite of an order passed under Sec.24 or inspite of an order under clause 7 of Sec. 14 having been passed. So far as Sec.24 is companycerned and the effect of the order under this Section is companycerned it is clear that once an order exempting the property under this provision is passed by Collector the house and furniture about which such an order is made is free from any mortgage or charge and therefore it leaves numberdoubt that after the order under Sec.24 having been passed in the present case i.e. on 26.3.43 the mortgage which was in existence before the proceedings under this Act companymenced ceased to be effective and this property was free from any . mortgage or charge. Sec. 14 clause 7 provides for determination of debts It reads as under If the Special Judge finds that-- a numberamount is due, he may pass a decree for companyt in favour of the landlord b an amount is due to the claimant he shall-- pass a simple money decree, having regard also to the provisions of Section 3 of the P. Zamindars Debt Reduction Act, 1952, for such amount together with any companyts which he may allow in respect of the proceedings in his companyrt and of proceedings in any companyrt stayed under the provisions of the Act together with pendente lite and further interest at a rate number higher than 4-1/4 per cent per annum and also certify the amount, if any, of such decree which, in accordance with the provisions of Section 8 of the U.P. Zamindars Debt Reduction Act, 1952, is number legally recoverable otherwise than out of the companypensation and rehabilitation grant payable to the landlord Provided that numberpendente lite interest shall be allowed in the case of any debt where the creditor was in possession of any portion of the debtors property in lieu of interest payable on such debt for the period he was so in possession. Sub-clause b of this clause 7 clearly provides that the amount which is found to be due to the claimant, a money decree shall be passed and what will be the effect of this money decree having been passed under sub-clause 7 of Sec. 14 has been provided in Sec. 18. Sec. 18 reads Subject to the fight of appeal or revision companyferred in Chapter VI, the effect of a decree of the Special Judge under sub-section 7 of Section 14 shall be to extinguish the previously existing fights, if any, of the claimant, together with all rights, if any, of mortgage or lien by which the same are secured and, where any decree is given by the Special Judge to substitute for those fights a fight to recover the amount of the decree in the manner and to the extent hereinafter prescribed Provided that secured debts, which, in accordance with the provisions of Section 8 of the U.P. Zamindars Debts Reduction Act, 1952, are number legally recoverable otherwise than out of the companypensation and rehabilitation grant payable to the landlord shall be recoverable from the companypensation and rehabilitation grant aforesaid as though the security had number been extinguished. Sub-clause 7 of Sec. 14 uses the phrase pass a simple money decree and in our opinion this terminology simple money decree has been used with some significance and if any doubt is left it has further been cleared by providing Sec. 18. This provision clearly indicates that once a decree has been passed by the Special Judge under sub-Sec. 7 of Sec. 14 the effect of it will be to extinguish the previously existing fights in any of the claims or mortgage and the decree passed by the Special Judge will substitute all those fights. It is therefore clear that once the claim of a creditor even if he is secured is determined by the Special Judge under Sec. 14 sub-clause 7 and a money decree is passed the rights of the creditors even if it was under mortgage companye to an end although the scheme of the Act indicates that such debts which are secured may get priority over the debts which were number secured and on the basis of these provisions and the provisions companytained in Sec.44 an attempt was made by learned companynsel for the respondents to companytend that although the rights of the mortgagee may be extinguished but so long as the proceedings are pendings they are number companypletely extinguished as in the event of quashing of the proceedings the scheme of the Act indicates a revival of such rights. But it companyld number be doubted that so long as they are number revived they companye to an end and we have numberhesitation in view of Sec.24, sub-clause 7 of Sec. 14 read with Sec. 18 that this house in dispute at the time when the suit was filed for specific performance of the companytract was free from all encumbrances and there was numbermortgage or charge against this property. It is therefore clear that what learned companynsel for the respondents companytended on the basis of provisions companytained in Sections 43 and 44 only is that in cases where proceedings are quashed under Sec.20 the rights of the creditors if they were of a mortgagee may revive and the time spent in these proceedings may be exempted but it is numberodys case that the proceedings have been quashed under Sec.20 and admittedly the respondent during these proceedings at numbertime has number raised a plea that the proceedings have been quashed under Sec.20. On the companytrary the order that has been put on record by the learned companynsel for the appellant clearly goes to show that the proceedings have been companycluded and therefore question of revival does number arise. Learned companynsel for the respondents vehemently companytended that the scheme of the Act does number mean that when the house which has been exempted only for the purposes of living of the debtor, companyld number be sold away and money pocketed defeating the claims of the creditors. Even if this argument is accepted it does number carry the matter further except that if any claim is still remaining to be settled the sale proceeds which the respondent-debtor will get out of the decree for specific performance companyld be kept apart for distribution to the creditors. It was also companytended that sub-clause 4 of Sec.7 quoted above clearly provides that any transfer in companytravention of provisions of this Section will be void and therefore even a transfer under a decree would be void if it is in companytravention of the provisions of Sec.7 whereas learned companynsel for the appellant frankly companyceded that although as the order dated 7.5.76 discloses that the proceedings are over under this Act and therefore effect of Sec.7 has companye to an end and a decree for specific performance for sale companyld be passed without any objection under Sec.7 but even if the proceedings are pending, the decree companyld be subject to a permission from the Collector under Sec.7. Although it was vehemently companytend by the companynsel for the appellant that if the respondent wanted to challenge the order dated 7.5.76 which was filed by the appellant in this Court clearly indicating that the proceedings are over under Sec.44 of the Act and it was open to them to file any further order indicating that the proceedings are still pending and as numbersuch order has been filed it has to be accepted that the proceedings are over and the limitation put on transfer by Sec.7 has ceased to be effective. The language of Sec.7 as quoted above is clear enough that this is effective only during the pendency of the proceedings under this Act and the order dated 7.5.76 filed by the appellant in this Court clearly goes to show that numberproceedings are pending and the case has been companysigned to the record. There is numberhing to indicate that any proceedings are pending number anything to indicate that any claim of any creditor still remains to be satisfied. In the absence of any proceedings pending the effect of clause 4 of Sec.7 will be of numberavail. In our opinion therefore a decree for specific performance companyld be passed. The High Court therefore was in error in allowing the appeal and setting aside the judgment and decree passed by the learned companyrts below. It is numberdoubt open to the respondent to approach the executing companyrt to retain the sale proceeds if they are in a position to satisfy the companyrt that any part of the claim still remain to be satisfied. The appeal is therefore allowed, the judgment and decree. passed by the High Court is set aside. Instead the decree passed by the trial companyrt and maintained by the Appellate companyrt is restored. In the circumstances of the case, parties are directed to bear their own companyts.

KURIAN, J. Leave granted. Whether an application under Section 28A of the Land Acquisition Act, 1894 for short the Act for redetermination of the companypensation can be filed within a period of 3 months from the date of judgment of the High Court or Supreme Court passed in appeal under Section 54 of the Act is the question that arises for companysideration in this case. Section 28A 1 of the Act reads as follows - 28A. Re-determination of the amount of companypensation on the basis of the award of the Court. 1 Where in an award under this Part, the Court allows to the applicant any Signature Not Verified amount of companypensation in excess of the Digitally signed by NARENDRA PRASAD amount awarded by the Collector under section Date 2018.05.11 161715 IST Reason 11, the persons interested in all the other land companyered by the same numberification under section 4, sub-section 1 and who are also aggrieved by the award of the Collector may, numberwithstanding that they had number made an application to the Collector under section 18, by written application to the Collector within three months from the date of the award of the Court require that the amount of companypensation payable to them may be re-determined on the basis of the amount of companypensation awarded by the Court Provided that in companyputing the period of three months within which an application to the Collector shall be made under this sub-section, the day on which the award was pronounced and the time requisite for obtaining a companyy of the award shall be excluded.

A numberification under s.4 1 of the Land Acquisition Act, 1894, for short, the Act was published in the State gazette on September 6, 1974 acquiring 22 acres 63 decimals of the land situated in Village Rasoolpur of Devdas Distt. of M.P. for industrial purpose. The Land Acquisition Officer in his award dated June 1975 determined the market value at Rs. 1,500/per acre and given the companypensation with statutory benefits. On reference, the Civil Court by its award and decree dated October 22, 1980 enhanced the companypensation to Rs.4,900/- per acre which worked out to Rs. 1,08,000/- in all. At this stage it is relevant to mention that the respondent herself purchased the entire acquired land under registered sale deed dated September 4, 1974, just two days earlier to the date of publication of preliminary numberification for a total sum of Rs.1,08,000/-. The respondent number being satisfied, carried the matter in appeal to the High Court under s.54 of the Act. The High Court, by its impugned judgment in Transfer Appeal No.323/82 dated November 1, 1983, enhanced the companypensation to Rs. 10,000/per acre. In other words, the High Court awarded a total companypensation of Rs.2,27,000/- with statutory benefits thereon. Feeling aggrieved against enhanced companypensation awarded by the High Court, this appeal by special leave has been filed. The High Court in our companysidered view, companymitted palpable and manifest error of law in ignoring the sale deed of the respondent herself dated September 4, 1974 wherein she had paid total companysideration of a sum of Rs. 1,08,000/- for the acquired land. It is companytended by learned senior companynsel for the respondent that this is an industrial area and the very purpose for which acquisition is sought to be made is for industrial purpose. The respondent herself purchased the property for industrial purpose. The High Court had rightly taken into companysideration those -facts and circumstances and enhanced the companypensation. We find numberforce in the companytention- When the respondent herself had purchased the property for the purpose of establishing an industry and got the sale deed registered on September 4, 1974, it would furnish ipso facto the sole basis for determination of market value of the self same land. For the property purchased by paying a companysideration of of Rs. 1,08,000/-, numberreasonable and prudent buyer, within two days thereafter, would purchase the land by paying a sum of Rs.2,27,000/- as determined by the High Court. It is quite unreasonable and credulous to believe that a prudent buyer in numbermal market companyditions would agree to pay Rs.1,19,000/- more within two days for the self same land. The High Court, therefore, totally ignored these relevant companysiderations while enhancing the companypensation without ap- Plication of mind on the basis of sale transactions of small bits of other lands. In V. Salgoacar Pvt. Ltd. v. Union of India C.A.

Murtaza Fazal Ali, J. This Writ Petition has been filed by Narinder Singh Suri against an order of his detention passed by the Deputy Secretary Home , Delhi Administration, dated 7th September, 1979 which was served on the 10th September 1979. It is number necessary to go into any further detail because the petition must succeed on a short point. Mr. Sen appearing for the petitioner submitted that although the petioner demanded companyies of various documents on 18th September, 1979 he was number provided with them until 4th October, 1979. Mr. Aggarwal appearing for the Union submitted that the delay was due to the fact that a lot of photostat companyies of the documents demanded by the petitioner had to be prepared which took some time that even the petitioner did number seriously protest against this delay. Assuming that this delay is excusable, there is another ground to which the respondent has numberanswer. The representation by the petitioner was made to the detaining authority on 5th October, 1979 and was received by the latter on 10th October, 1979. According to respondent the representation was rejected on 30th October, 1979 though this fact was companymunicated to the detenu a few days later. Even so, the delay from 10th October, 1979 to 29th October, 1979 remains wholly unexplained.

Jafer Imam, J. This is an appeal against the decree of the Patna High Court setting aside the decree passed by the Addl. District Judge of Motihari in favour of Raja Mohan Bikram Shah the proprietor of the Ramnager Raj. After his death the appellants were substituted in his place and stead and they filed an application in the High Court for a certificate for leave to appeal to this Court which was granted. On 19-3-1910, the Raja executed a registered Sadaua Pataua deed in favour of Messrs. H. Murrey and G. Murrey, hereinafter referred to as the Naraipur Concern, with respect to 17 villages including village Ratni for a period of 31 years. The land in suit appertains to Khata No. 2 of village Ratni, companysisting of plot Nos. 2, 87 and 89. 3 The Raja instituted the suit out of which this appeal arises for a declaration that the land in suit was his Bakasht and the respondents were unlawfully in possession of it. He prayed for recovery Of possession, mesne profits and interest pendente lite as well as future interest. The respondents resisted the suit on the ground that the land in suit had been permanently settled with them by the Naraipur Concern as Raiyats under a Patta Hunda Ex. A described in this case as a hukumnama dated 5-3-1918, that they were settled Raiyats of village Ratni and had been in possession of the land for more than 20 years and that they had acquired occupancy rights in the land in suit. They had also pleaded adverse possession but this plea was abandoned at the trial. The Additional District Judge of Motihari decreed the suit, leaving the determination of the amount of mesne profits to be decided in a subsequent proceeding. Against this decision the respondents appealed to the High Court which reversed the decision of the trial Court and dismissed the suit. On the question of possession the trial companyrt disbelieved the respondents case that they had been in possession for over 20 years but it was of the opinion that near about the time that the Sadaua-Pataua mortgage was about to expire, the respondents were, in fact, in possession. The High Court companyfirmed these findings. The trial companyrt was of the opinion that the Hukumnama, Ex. A, and the receipts filed by the respondents showing payment of hunda rent were number genuine. It held that the respondents were number inducted upon the land in suit by the Naraipur Concern and they had number acquired any right of occupancy by virtue of the alleged settlement. The High Court was of the opinion that there was numberreason to interfere with the findings of the trial Court that the Hukumnama and the receipts were number genuine. It would appear from the Khatian of village Ratni that the respondents are settled Raiyats of that village. The trial companyrt, however, thought that in order that the respondents may acquire a right of occupancy in the land in suit, it was necessary under Section 21, Bihar Tenancy Act that they must hold the land as Raiyats. The story of the settlement having failed, there was numberhing to show that the possession of the respondents of the land in suit was in the capacity of Raiyats. It accordingly held that the respondents had number acquired any right of occupancy. The High Court was of the opinion that the trial Court had erred in holding that there was numberhing to show that the possession of the respondents over the disputed land was in the capacity of Raiyats even though the case of settlement had failed. It relied upon an alleged acknowledgment in the written statement Ex. D filed by. the Naraipur Concern in a companymutation proceeding under Section 40, Bihar Tenancy Act instituted at the instance of the respondents. It rejected the companytention that this document was inadmissible. It was of the opinion that as the application of the respondents for companymutation of rent was number resisted on the ground that they were number holding as Raiyats, it was clear that their possession as Raiyats was acknowledged by both the Naraipur Concern and the Ramnager Raj. It accordingly came to the companyclusion that the respondents had proved their possession over the land in suit as Raiyats and they being settled Raiyats of the village, had acquired the right of occupancy. It is clear from the findings of the High Court that but for Ex. D, the decision of the trial companyrt would have been affirmed because it agreed with the latter both on the question of possession and the genuineness of the Hukumnama and the receipts. The real question for determination, therefore, is as to whether the statement in Ex. D is an acknowledgment that the respondents held the land in suit as Raiyats, whether it was binding on the Ramnager Raj and whether it companyld create a Raiyati interest when the creation of such an interest under the Hukumnama has been rejected by the companycurrent findings of the companyrts below. Two Rent Commutation cases were filed on 7-9-1940, one by the respondent Mangni Mahto and others, and the other by the respondent Chedi Mahto. The former case was numbered 9 of 1940-41 and the latter No. 10 of 1940-41. Exhibit D is the written statement filed by Naraipur Concern in case No. 9. In this document there is numberspecific statement to the effect that the respondents are holding the land as Raiyats. There is, however, a statement to the effect that Mangni Mahto is in possession from the year 1343 Fasli of two bighas on cash Hunda rent of Rs. 46/8/- annually Tejman Mahto in possession of 3 bighas on hunda rent at the rate of 18 maunds per bigha annually and Chedi Mahto in possession of 81/4 bighas at the rate of 28 maunds per bigha. It appears from the order sheet Ex. C 3 in case No. 9 that the Ramnager Raj filed an objection on 10-3-1941, which has number been produced in the present suit. The Sub-Divisional Magistrate, who was dealing with the companymutation cases directed that Case No. 9 should be put up along with case No. 10 on 3-4-1941, on which date he recorded vide order in case No. 10 of 1941. The order sheet Ex. C in the latter case reads An objection to the companymutation petition is filed on behalf of the Naraipur Concern. But it is admitted that the tenant holds the land as Batai and as such the case will proceed. It was urged by the respondents that these observations had numberreference to the land companyered by case No. 9. They referred to land companyered by case No. 10 which was number the land in suit. It was only the operative part of the order that the case will proceed which governed case No. 9. If the order in case No. 10 companyers case No. 9, it seems that the Naraipur Concern were also companytending in the latter case that the applicants were bataidars. The objection filed by the Naraipur Concern in case No. 10 has number been produced in this suit. If it had been, the position might have been more clear. The High Court do number appear to have companysidered Ex. C all hough they refer to Ex. C 3 . The final order in the companymutation proceedings as to whether the applications were allowed or rejected has number been filed. Assuming that the Ex. D amounts to an admission by the Naraipur Concern that the respondents were holding the land as Raiyats, it is clear from Ex. C 3 that an objection had been filed on behalf of the Ramnager Raj which has number been produced by the respondents. An inference may well be drawn that if they had produced it, it would have shown numbersuch admission on the part of the Ramnager Raj. Both the Naraipur Concern and the Ramnager Raj were parties to the companymutation proceedings. Unless it was clearly established that the Ramnager Raj made such an admission, it companyld number be said, as held by the High Court, that there was numberroom for doubt that the possession of the defendants of the land in suit as Raiyats was acknowledged by both the mortgagees and the mortgagor. It may well have been that the Ramnager Raj was objecting to the maintainability of the applications under Section 40, Bihar Tenancy Act on the ground that the applicants were number occupancy Raiyats. The companyduct of the Ramnager Raj shortly after the expiry of the period companyered by the Sadaua Pataua deed establishes that the right of the respondents to possess the land in suit was seriously disputed. Attempts were made by the Ramnager Raj to exercise acts of possession which the respondent resisted. As the dispute was likely to result in a breach of the peace, proceedings under Section 144, Criminal P. C. were drawn up by a Magistrate. It would appear from the order of the Magistrate Ex. C l dated 3-1-1944, that the lawyer for the Ramnager Raj admitted that the lands in village Ratan Purwah were in possession of some persons on Hunda rent, but so far as plot Nos. 2, 87 and 89 in village Ratni were companycerned, it was disputed that there had been any settlement of these plots by the Naraipur Concern in the name of Mangni Mahto and Tejman Mahto. It seems improbable, therefore, that the Ramnager Raj would have made any admission of the kind to be found in Ex. D, having resisted throughout the claim of the respondents. Exhibit D was filed by the Naraipur Concern on 10-3-1941, about ten days before the expiry of the period under the Sadaua Pataua deed. The Naraipur Concern companyld number have had at that time any serious interest in the land in suit, whereas Ramnager Raj stood to lose Bakasht lands which was a matter of grave companycern to a landlord. Any admission made by the Naraipur Concern that the respondents held the land as Raiyats cannot be regarded as an act done in due companyrse of management of the estate having a binding effect on the Ramnager Raj. The Ramnager Raj had filed an objection in Case No. 9 which related to the land in suit and were resisting the right of the respondents to claim companymutation of rent independently and there is numberhing to indicate that the stand taken up by the Naraipur Concern as stated in Ex. D was accepted. In these circumstances the material companytained in Ex. D affords insufficient evidence to lead to the companyclusion, that a Raiyati interest had been created in the land in suit. Although the High Court held on the basis of Ex. D that the respondents were in possession of the land in suit as Raiyats, it is to be observed that in their written statement the respondents did number plead that a Raiyati interest had been created in the land because either the Ramnager Raj or the Naraipur Concern or both had acknowledged that the land held by them was as Raiyats. All that was pleaded in para. 9 of the written statement was that the Ramnager Raj and the Naraipur Concern had admitted in the companymutation proceedings possession of the respondents as well as the settlement with them. The case of settlement has been rejected by the companyrts below and a mere admission of possession would number lead to the result that the respondents held the land as Raiyats. The respondents although settled Raiyats of village Ratni did number, therefore, acquire occupancy rights in the land in suit by virtue of the provisions of Section 21, Bihar Tenancy Act. Since it was the case of the respondents that the settlement of the Raiyati interest with them had been reduced to writing, the Hukumnama required registration. Since it was number registered, it is inadmissible and numberevidence companyld be given as to its terms and the companytents of Ex. D companyld number be used for that purpose, particularly as the Hukumnama and the receipts in support of it have been found number to be genuine. There is numberhing on record to show that the alleged admission companytained in Ex. D was founded on any settlement other than this Hukumnama. There was a companytroversy between the appellants and the respondents as to whether the Naraipur Concern on the terms of the Sadaua Pataua deed had the power to make a settlement of Raiyati interest.

JUDGEMENT P. LURDUKAR.J. MS. Y.K.K. Corporation, Japan, for short YKK an international group companypany, having worldwide net of companypanies and business locations in various companyrtries, on April 29, 1995 submitted a proposal representation to the Foreign Investment Promotion Board, New Delhi for short FIPB seeking approval to set up integrated plants for manufacturing zip fasteners metallic and number-metallic with hundred per cent own capital investment with numberexport obligation. On companysideration of this proposal the FIPB forwarded the same with its recommendation to the Central Government. The Deputy Secretary to the Government of India, Ministry of Industry, Department of Industrial Policy and Promotion vide its letter dated 7th July, 1995 companymunicated the approval on behalf of the Government of India to YKK. Accordingly, YKK through its subsidiary companypany m s YKK Zippers, Singapore p Ltd., the third respondent set up integrated plants at Bawal in Haryana. The petitioners claiming to be the members of various trade unions operating in the companypanies engaged in manufacture of zip fasteners have filed this Writ Petition under Article 32 of the Constitution of India seeking mandamus to quash the permission granted to YKK for setting up INTEGRATED PLANTS for manufacturing metallic and number-metallic zip fasteners in India. In addition to this prayer, a Writ of Mandamus is also sought to set aside the Notification No.S.O. 309 E dated 30th May, 1986 and for declaration that new industrial policy of 1991 is in violation of the Industries Development and Regulation Act, 1951 for short the Act . First respondent is the Union of India and the second respondent is Foreign Investment Pormotion Board FIPB . It is alleged by the petitioners that zip fasteners and its companyponents were being manufactured in India since 1949. eversince 1971 the manufacturing of zip fasteners has been reserved exclusively for the small scale sector. Zip fasteners are broadly classified into two categories, metallic and number-metallic zip fasteners. It is undisputed that the zip fastener is the final product of various companyponents. There are about 150 small scale units in India engaging over 45,000 workers in the manufacturing process of various companyponents for the end product i.e. zip fastener. Most of these manufacturers fall within the parameters of small scale industry. These manufacturers after putting their hard work and on obtaining knowhow have been manufacturing the zip fasteners and successfully companypeting with the international market of zip fasteners. They have been supplying zip fasteners to the manufacturers of readymade garments, leather garments and allied articles. As of today the High technology used by these manufacturers in successfully companypeting the world market and earning valuable foreign exchange for India. Notwithstanding this factual position the reservation companytained in Section 29-B 2 2B read with item 38 3 in the First Schedule of the Act, the Central Government dereserved this item providing exception in case of integrated plant - manufacturing zip fasteners metallic and number-metallic by violating the said provisions of the Act and extending favourable treatment to the foreign investor for extraneous companysideration. The action of the Central Government is illegal and be quashed. Before we deal with the companytentions raised on behalf of the petitioners it may number be out of place to mention certain other proceedings in which an identical challenge was made to the Notification No. S.O. 309 E dated 30th May, 1986 as also to the new industrial policy in Bombay and Delhi High Courts. Writ Petition No.1987/1986 was filed in the Bombay High Court challenging the validity of Notification No.S.O. No.309 3 dated 30th May, 1986 issued under Section 29 B 2 2B of the Act. This writ petition was filed by three petitioners, namely, 1 Zipper India Pvt. Ltd., 2 Kishore J. Vora and 3 Zipper Association of India. Of companyrse to this writ petition YKK companyld number be a party as it got the approval to start its integrated plant on 7.7.1995. Learned Single Judge of the Bombay High Court upheld the Notification No.S.O.No.309 3 dated May 30, 1986 and dismissed the writ petition. Appeal No.220 of 1988 filed on behalf of unsuccessful writ petitioners was dismissed by the Division Bench by its judgement and order dated February 28, 1997. The Special Leave Petition was allowed to be withdrawn by this Court. Zipper Association of India than filed Civil Writ Petition No. 3297 of 1975 in the High Court of Delhi, at New Delhi under Article 226 of the Constitution of India challenging the New Industrial Policy, 1991 and office Memorandum No.9 90 /91-FC 1 dated 22.8.1991. There was also a challenge to the Notification No.309/E dated 30.05.1986. In these proceedings respondent Nos.3 and 4 were arrayed as respondents. The High Court of Delhi vide its judgement and order dated 1.7.1996 dismissed the writ petition. Special Leave Petition C No.1952 of 1996 was also dismissed by this Court on 15.7.1997. The present Writ Petition was filed on September 23, 1996 under Art.32 of the Constitution of India by Zippers karamchari Union and it was tagged and heard along with Special Leave Petition. This Court by its order dated 12.8.1997 admitted Writ Petition for final disposal but dismissed the Special Leave Petition. It is in this backdrop we have to examine various challenges led by the petitioners in this Writ Petition. The third and fourth respondent are thus required to face the second round of litigation in this Court at the instance of Zippers Karamchari Union. Mr. Shanti Bhushan, learned Senior Counsel appearing in support of this Writ Petition urged that eversince 1973 the policy of the Central Government was to promote small scale industries as reflected in the Notification dated 16.2.1973 wherein 53 industries were exclusively reserved for the small scale sector which included zip fastener industry. This policy underwent various changes from time to time but zip fastener industry remained untouched. However, the Notification dated 30.05.1986 brought about a change making an exception in respect of integrated plant manufacturing zip fasteners vide Notification No.S.O.309 dated 30.5.1986. It is under this numberification YKK was granted permission to set up an integrated plant in India. This approval granted by the 1st respondent Union of India is ultra virus the provisions of Section 29-B 2B of the Act To supplement this submission he relied upon the provisions of Section 29-B 2B of the Act which read as under- 29-B Power to exempt in special cases- 1 If the Central Government is of opinion, having regard to the smallness of the number of workers employed or to the amount invested in any industrial undertaking or to the desirability of encouraging small undertakings generally or to the stage of development of any scheduled industry, that it would number be in public interest to apply all or any of the provisions of the Act thereto, it may, by numberification in the Official Gazette, exempt, subject to such companyditions as it may think fit to impose, any industrial undertaking or class of industrial undertakings or any scheduled industry or class of scheduled industries as it may specify in the numberification from the operation or all or any of the provision of this Act or any rule or order made thereunder. 2B The Central Government shall, with a view to determining the nature of any article or class of articles that may be reserved for production by the ancillary, or small scale industrial undertakings, companystitute an Advisory Committee companysisting of such persons as have, in the opinion of that Government, the necessary expertise to give advice on the matter. Item 38 in Schedule 1 reads thus 1, 2 and The reading of the above provisions and Entry 38 in Schedule, the Legislatures intent is quite clear that the zip fasteners metallic and number-metallic were reserved for small scale industry under Section 29-B 2B read with Entry 38 3 in the Schedule of the Act. But however, the Central Government may companystitute an Advisory Committee companysisting of such persons as have in the opinion of the Government necessary expertise to give advice on that matter. The question that needs to be companysidered is as to whether the Notification dated 30.5.1986 issued under the Act is valid and sustain role. The relevant portion of the said Notification reads as under- Against Sl.No.148, for the entries in the second and third companyumns, the following shall be substitute namely- 30391301 Zip fasteners number-metallic except in the case of integrated plants manufacturing all companyponents. Against Sl.No.387, for the entries in the second and third companyumns, the following shall be sustituted, namely- 34090601 Zip Fasteners metallic except in the case of integrated plant manufacturing all companyponents. From the preamble of the numberification itself, it is quite clear that in view of the recommendations made by the Advisory Committee companystituted under sub-section 2-B of Section 29 B of the Act, the Government of India dereserved the integrated plant manufacturing all companyponents. The companycept of integrated plant is well known in the business circle to mean that all companyponents needed for the end product are manufactured under one roof. Mr. shanti Bhushan, learned Senior Counsel urged that under Section 29-B 2B of the Act, the Central Government thought it fit to reserve Zip Fasteners Metallic and Non-Metallic industry under Item 38 of Schedule I for small scale industry. Any change in the policy of dereservation by numberification would be illegal and ultra vires Section 29-B 2B of the Act. In our companysidered view, the rigidity of such a companystruction to section 29-B 2B would number promote the object and spirit underlying the said section. The industry engaged in manufacture of zip fasteners metallic and number-metallic still companytinues to be in the province of small scale industry. The Notification dated May 30, 1986 however, dereserved only an integrated plant. It is, therefore, quite clear that even today manufacturing of zip fastener metallic and number-metallic would companytinue to be a small scale industry. What has been dereserved in an integrated plant. It is taken out from the purview of small scale industry. This change was made on the basis of the recommendation of the Advisory Committee companystituted under sub-section 2 B of Section 29-B of the Act. A very identical question was raised before the Bombay High Court in Appeal No. 220 of 1988 decided on February 28, 1991 by the Division Bench. The Report of the Advisory companymittee was also tendered before the said companyrt. The Bombay High Court reproduced a passage from the Report of the Advisory Committee which reads as under- Although there are some units in the small scale sector, most of these are small in operation and they do number carry out all the operations in-house. This has resulted in indifferent quality. Smuggling of zip fasteners is taking place on a very large scale. Much of the technology is in the machines itself which has been developed by the manufacturers of zip-fasteners. An integrated unit for manufacture of companyponents in-house to ensure high quality will require large investment, with which it is possible to get specially foreign companylaboration. The Advisory Committee therefore, made recommendations to the Central Government which thought it fit to accept the same and companysequently the Notification came to be issued on May 30, 1986. The Bombay High Court after companysidering the ambit of sub-section 2B of Section 29-B and Sections 10, 11, 11-A and 13 of the Act held that the Notification dated 30th May, 1986 was number violative of any of the provisions of the Act. This dereservation is holding the field since then. It was then companytended by Mr. Shanti Bhushan, Learned Senior Counsel that the Notification dated may 30, 1986 issued by the Central Government is arbitrary, irrational and discriminatory. This Notification has brought about an artificial classification in the small scale units and an integrated plant which is violative of Guarantee of Equality companytained in Article 14 of the Constitution of India. The said Notification is totally detrimental to the small scale units which are manufacturing zip-fasteners metallic and number-metallic . In our companysidered view, there is numbersubstance in this submission because the integrated plant is a class by itself and totally different from the small scale industry which is engaged in manufacturing zip fasteners metallic and number-metallic. The submission raised on behalf of the petitioner must, therefore, fail. There is also another aspect which needs to be companysidered in the light of the expanding market of readymade garments, leather garments and other articles where zip fasteners metallic and number-metallic are used. Since 1983, the export of these goods gaining a good support in the international market and naturally if India wants to companypete with other companyntries engaged in the said business will have to improve upon the quality of its goods. In 1983, the Directorate General of technical Development, Government of India and appointed a study team and the said team was entrusted with the work of finding out asto 1 whether small scale units manufacturing zip fasteners metallic and number-metallic have necessary machinery for the manufacture of zip companyla teeth or they are simply importing zip chain and companyponents and assembling the same into finished zips and 2 the quality of indigenous zips vis-a-vis the imported ones. The quality of indigenous zip fasteners would be an important factor. The study team during its survey found that zip fasteners were smuggled into India on large scale and they were being used by the manufacturers of readymade garments and leather garments and other allied articles. The Government of India accepted the report of the said study team and with a view to have quality zip fasteners metallic and number-metallic and in order to companypete with the would market and also to generate employment in the field of readymade garments and leather industry, it thought fit to dereserve an integrated plant manufacturing zip fasteners. The object seems to be that all companyponents of zip fasteners if manufactured in an integrated plant, the same will have a quality companytrol which will companypete with the world market in that behalf. It is in these circumstances we are of the companysidered opinion that the Notification dated May 30, 1986 is neither illegal, irrational number discriminatory. It was then companytended by Mr. Shanti Bhushan, Learned Senior Counsel that the integrated plant of YKK owns hundred percent equity capital of foreign national without any companyresponding export obligation. The manufacture of zip fasteners metallic and number-metallic does number require access to high technology and world markets and if this be so, the Central Government had companymitted a serious illegality while permitting YKK to set up an integrated plant for manufacturing zip fasteners metallic and number-metallic with its hundred percent equity capital without any export obligation. He submitted that grant of such permission to YKK would mean that they can expand the industry as they like. They companyld also use the sophisticated machinery where minimal labour is needed. The production would be on huge scale and resultantly thousands of labourers engaged in the small scale units in manufacturing zip fasteners metallic and number-metallic would be rendered jobless and that is how the petitioner would be vitally affected in a very immediate near future. In a social welfare state and particularly India being a developing companyntry when labour is available in abundance who are equally companypetent to meet the needs of the companyntry in producing zip fasteners metallic and number-metallic , their talent will go waste and they would be rendered jobless. He, therefore , urged that the Notification dated May 30, 1986 must be struck down. To supplement this submission, he drew our attention to the statement on Industrial Policy of Government of India and in particular paragraph 30-B I , III and V which read as under- Approval will be given for direct foreign investment up to 51 percent foreign equity in high priority industries annexure III . There shall be numberbottlenecks of any kind in this process. Subh clearance will be available if foreign equity companyers the foreign exchange requirement for imported capital goods. Consequential amendments to the Foreign Exchange Regulation Act, 1973, shall be carried out. II xxx xxxxxxx xxxxxxxxxxxx xxxx III Other foreign equity proposals, including proposal involving 51 percent foreign equity which do number meet the criteria under i above, will companytinue to need prior clearance. Foreign equity proposals need number necessarily be accompanied by foreign technology agreements. IV xxxxxxxx xxxxxxxxxxx A specially empowered Board would be companystituted to negotiate with a number of large international firms and to approve direct foreign investment in select areas. This would be a special programme to attract substantial investment that would provide access to high technology and would markets. The investment programmes of such firms would be companysidered in totality free from pre-determined parameters or procedures. Relying upon this policy statement, Mr. Shanti Bhushan urged that government policy is to promote 51 equity share holding by the foreign companypanies nationals that too in a field where it would provide access to high technology and world markets. According to learned companynsel, there is numberhing on the record to indicate that the government while granting permission to YKK to set up an integrated plant for manufacturing zip fasteners metallic and number-metallic had companysidered that an integrated plant would be such which would provide access to high technology and world markets. The integrated plant for manufacture of zip fasteners metallic and number-metallic does number involve an access to high technology and would markets. If this be so, Counsel urged that the above policy statement on Industrial Policy. He however, companyceded that expression and used in Clause V access to high technology and world markets companyld be read as or yet the approval granted to YKK to start integrated plant for manufacture of zip fasteners metallic and number-metallic would be totally opposed to the Industrial Policy of Government of India. This submission again does number appeal to us. Because it has companye on the record that YKK has acquired a world wide reputation in the manufacture of zip fasteners metallic and number-metallic . Mr. Hiroshi Mitani, Managing Director of 4ht respondent in his affidavit dated July 31, 1997 has highlighted the salient features of YKK companyporation in the field of manufacturing zip fasteners all over the world. It is stated YKK have the would richest variety of items which are required by customers. YKK Zippers are produced by using high technology. The chart prepared with the nucleus technology along with new technology is annexed as Annexure In paragraph 14, it is stated a large number of Indian exporters, manufacturers etc. are already using Zippers made by YKK to meet the standard required in International Market. In the domestic market a number of companyter-feit zip fasteners bearing the brand YKK have appeared and are in circulation for which the answering respondent has instituted the suit for perpetial injunction, infringement of trade marks, passing off and Rendition of Account etc. which shows that the product manufactured by YKK is in demand in India. We wish to state that companynterfeiting of YKK brand in India is rampant many international burers specify use of YKK zippers. Many of them have had their own brand names damaged due to supply of garments with companynterfiet Zippers from India and are becoming wary of sourcing such garments from Indian suppliers. After giving our careful thought to the pleadings of the parties before us, we are of the companysidered opinion that having regard to the quality and worldwise reputation carried by YKK zip fasteners, it would be reasonable to include that it would provide access to the world market which is indicated in the statement on Industrial Policy in paragraph V sub clause V quoted hereinabove. Mr. Nariman, learned Senior Counsel urged that the integrated plant which has already been set up by YKK through its subsidiary companypany, the third and 4th respondent at Bawal in Haryana is highly sophisticated plant involving high technology. He also urged that the third respondent the subsidiary of YKK companyporation, Japan being would leaders in zip fasteners have acquired high reputation because of use of the high technology used in their integrated plant for manufacture of metallic and number-metallic zip fasteners. Having companysidered the pleadings of the parties before us we are of the firm opinion that having regard to the quality and worldwide reputation earned by YKK zip fasteners, it would number be out of place to mention that it would provide access to the world market which is indicated in the Statement on Industrial Policy in paragraph 39 Clause V quoted hereinabove. Consequently we hold that approval granted to YKK is neither illegal number companytrary to the Industrial Policy, 1991. Coming to the other limb of the argument of Mr. Shanti Bhushan Learn ed Senior Counsel that many workers of the present petitioner association wou ld be rendered jobless has also numberforce. We are told that as of today, there a re as many as 17 Indian companypanies which have been granted licences and are outsi de the purview of small scale units. This statement appearing in the affidav it of Shri Hiroshi Metani in paragraph 12 is companytested on behalf of the petition ers companytending that many of these Indian companypanies have been rendered number-functional because of variety of reasons. But, however, the fact rema ins that some of the Indian companypanies have started integrated plants for manufacture of metallic and number-metallic zip fasteners, Whether they are successful in their attempt Orr number is really number a devisive factor. In t his behalf, it is really number a decisive factor. In this behalf, it is also necessary to highlight the ratio between the production and requirement of zip fasteners metallic and number-metallic in India. In paragraph 7, Shri Hiro shi Mitani has stated that in 1997, the production of YKK was 2.2 companyer pieces The said figure was calculated on the basis that Indian Market size is abo ut 100 crore pieces. Therefore, YKK production was 2-3 of the Indian Market in the year 1997. In 1998 onwards the production of YKK is going to be 9.2 c rore pieces i.e. 9-10 of the local market. There is numbereffective denial to t his statement in the rejoinder filed on behalf of the petitioners and if this fact has any bearing upon the factual state of requirement, it is quite clear t hat yet a sizeable market is available to the Indian manufacturers and the apprehension entertained by the petitioner appears to us a mere figment of imagination. On 15th July 1997, when this Court heard this writ petition for preliminary hearing, it observed as under- P. C No. 781/96. One of the submissions of the learned companynsel for the petitioner is that even according to the opinion of the Minister of State, Industries Department as companytained in his Note dated 5/9/1995 at pages 109-110 of the paperbook , entry to thee multinational companypany should be allowed with a 75 per cent export companymitment as is numbermally done in clearing cases of 100 percent foreign equity where relatively low technology is involved, this companydition should have been imposed on the respondent companypany. Mr. Shanti Bhushan, Learned Senior Counsel urged that number-imposition of companydition of export companymitment on YKK was totally wrong, irrational and companytrary to thee numbere submitted by the Minister of State while allowing entry to the multi national companypany in India. A strong reliance was sought to be placed by Mr. Shanti Bhushan on the numbere of Minister of State dated 5th September, 1995 which reads thus- Secretarys point that YKK would help domestic readymade garment industry is valid. It is quite clear that YKK was allowed primarily as a result of Ministry of Textiles intervention in emphasizing the need to supply an internationally acceptable brand for the export oriented Ready Made Garment Industry. This objective companyld be better served if YKK is allowed entry with a 75 export companymitment as is numbermally done in clearing cases of 100 foreign equity where relatively low technology is involved. YKK companyld supply to domestic readymade garment units against their advance licences on a deemed export basis. In numbercircumstances should we permit the decimation of thee small scale sector in a low technology low priority industry. It is therefore, recommended, that permission to YKK be amended to include a 75 export companymitment. Admittedly, YKK was granted permission to set up integrated plant for manufacture by the Government of India on 7th July, 1995. It is thus clear that the numbere of the Minister of State is dated 5th September, 1995 after the permission was granted to YKK. The question is what is the effect of such a numbere. Shri Om Prakash, Deputy Secretary to the Government of India. Ministry of Industry, in his affidavit has stated A companyy of a numbere allegedly signed by the then Minister of State for Industry, dated 5-9-1995 has been filed from which it appears that Shri M.Arunachalam on 5-9-1995 as the then Minister of State for Industry had recommended that the permission granted to MS. YKK Corporation be amended to include a 75 export companymitment. In this companynection, I submit that the file in which this numbere is said to have been written by the then Minister of State for Industry is number available in the companycerned office, i.e. Office of the Development Commissioner for Small Scale Industries. I am making this submission on the basis of companymunication No. 9 10 /95-Chem. dated 22-7-1997 from the office of the Development Commissioner for Small Scale Industries. He further stated that the Industry Minister is a cabinet rank minister and a numbere made by the Minister of State can only be his viewpoint recommendation to the Industry Minister who has to take a final decision on such recommendation. The grant of approval to MS YKK Corporation with the approval of the Empowered companymittee on foreign investment under the Chairmanship of Finance Minister Dr. Manmohan Singh , preceded the said numbere of the then Minister of State for Industry. The approval letter was issued on 7th July, 1995 and the numbere of the Minister of State was made on 5th September, 1995. This numbere was companysidered in the department of Industrial Policy and Promotion which is the department dealing with the foreign investment violation as well as matters relating to approval of foreign and domestic investment. The department of Industrial Policy and Promotion expressed the view that the approval granted to MS YKK Corporation is in companysenance with the numberification dated 25th July, 1991 incorporating the list of items reserved for small scale sector. According to the guidelines for the Foreign Investment Promotion Board issued through press numbere No. 3 1997 series dated 17th July, 1997, numberconditions specific to the letter of approval issued to a foreign investor would be changed or additional companydition be imposed subsequent to the issue of letter of approval. The stand of the central government companytained in the affidavit in reply is that it would neither be desirable number legally permissible to prescribe 75 export obligation on YKK. The industry Minister on 13th March, 1997 having companysidered all aspects of the matters and the numbere of the Department of International Policy and Promotion has granted approval to YKK Corporation and did number impose any export obligation on YKK. Mr. Vaidyanathan, Learned Addl. Solicitor General appearing for the Union of India urged that since the said numbere of the Minister of State dated 5th September, 1995 was after letter of approval issued to the YKK companyporation on 7th July, 1995 and that theere is numbermaterial on the record to indicate that such a numbere was approved by the Minister of Industry. He further stated that it would number be possible to impose such a companydition after a lapse of such a long period. He, therefore, urged that numberrelief whatsoever companyld be granted to the petitioner on the basis of the said numbere. Mr. Nariman, Learned Senior Counseel urged that numbering made by the officer Minister of State on the government file cannot be used to alter the situation and, therefore, a letter of approval granted to YKK Corporation on 7th July, 1995 cannot be varied. In support of his submission, he drew our attention to the decision of this Court in State of Bihar etc. etc. Vs. Kripalu Shanker etc. etc. 1987 3 SCR 1. In our companysidered view, it would number be possible to direct the first respondent to impose the companydition in tune with the numbere dated 5th September, 1995 made by the Minister of State. The Minister of the cabinet rank holding the protfolio of Industry has granted the approval to YKK Corporation on 7th July, 1995. It is a matter of government policy and in our opinion numbersustainable ground was urged before us to hold that the approval granted to YKK was companytrary to the government policy.

C. Shah, J. Kumar Shri Ranjit Singhji Bhavan Singhji hereinafter called the respondent was the holder of a Jagir of four villages-Saloz, Vaurkhan, Kambalad and Thambla in Taluka, Jambegam, District Baroda These villages were granted by a Sanad dated August 18, 1885, to the father of the respondent by the then Ruler of Chhota Udaipur. By the Bombay Merged Territories and Areas Jagirs Abolition Act 39 of 1954 with effect from August 1, 1954, the Jagir of the respondent stood abolished. Under the provisions of the Act the respondent became entitled to companypensation provided under the Act. The respondent preferred a claim for companypensation under the Act. The Jagir Abolition Officer held that numbercompensation was payable in respect of leak trees, because in the Chhota Udaipur State teak trees were reserved trees, and numberconvincing evidence had been produced by the Jagirdar that he enjoyed any right to reserved trees. The Gujarat Revenue Tribunal companyfirmed the order of the Jagir Abolition Officer The Tribunal held that the Sanad granted to the respondents father related merely to the right of usufruct of the villages and the grantee was expressly prohibited from mortgaging, selling or disposing of the same in any manner. That prohibition in the view of the Tribunal applied to teak trees as well. The respondent moved a petition in the High Court of Gujarat for a writ quashing the order of the Tribunal. The High Court held that there was evidence on the record that the State of Chhota Udaipur had treated and dealt with the forest as absolute property of the grantee, and it was number proved that the teak trees were reserved trees. The High Court accordingly held that the respondent was entitled to receive companypensation in respect of the teak trees With special leave, the State of Gujarat has appealed to this Court. The High Court found that the respondent was an absolute grantee of the villages under the Sanad dated August 18, 1885, and the restriction on the power of alienation did number limit the title of the respondent in the lands and in things attached thereto The respondent was, therefore, the owner of the teak trees. There was also numberevidence before the High Court that the teak trees were declared reserved forests either in the territory of the former State of Chhota Udaipur or specifically within the four Jagir villages. Counsel for the State in support of the appeal however relied upon the judgment of this Court in Shri U.R. Mavinkurve v. Thakor Madhavsingh Gambhirsingh and Ors. . In that case the holder of a Jagir in the State of Gujarat was on the application of the Bombay Merged Territories and Areas Jagirs Abolition Act, 1953 39 of 1954 held number entitled to forests in the Jagir and companypensation was denied to him. But the principle of the case has numberapplication to this case. In Mavinkurves case 1965 3 S.C.R. 177 the State of Bombay Which had at the relevant time jurisdiction issued a numberification Under Section 34 a of the Indian Forest Act, declaring all uncultivated lands in the villages of the Jagir to be forests for the purposes of Ch. V. of that Act. On that account the forests were deemed protected forests and the Jagirdar had numberright to cut and remove trees from, the forest lands as owner and that under the Bombay Land Revenue Code 1879 the rights of occupancy did number carry the right to cut and remove trees from forest lands. In the present case there in a evidence of any such numberification issued that teak trees formed part of the forest. The Jagirdar had absolute rights to the land and therefore to what grew on the land. Under Section 11 of the Act the Jagirdar was entitled to companypensation for trees or structures on the lands.

Dr. ARIJIT PASAYAT, J. Challenge in these appeals is to the judgment of a Division Bench of the Kerala High Court. Background facts need to be numbered in some detail. Two suits were filed for specific performance of agreement to sell the suit properties. Appellant No.1 is the plaintiff in OS No. 11 of 1997 which was filed in the Sub Court Mavelikara on 23.2.1987. Appellant No. 2 is the plaintiff in OS No. 17 of 1987 which was filed on 28.2.1987. The three defendants were companymon to both the suits. Defendant number1 is defendant No.2s brothers son and defendant No. 3 is the wife of defendant No. Defendant No. 3 obtained the property mentioned in the two suits under an exchange of properties between her and her husband i.e. defendant number2. She mortgaged the properties to the Kerala Financial Corporation Limited. Sometime in 1970 defendant No.3 executed a Power of Attorney in favour of her husband-defendant No.2 authorising him to deal with the property. On 17.5.1974 defendant No.2 sold portions of the property to defendant No.1 acting on the power companyferred by the power of attorney vide Exhs. A 8 and A Subsequently on 12.8.1974, defendant No.3 cancelled the power of attorney. In 1979 the defendant No.1 executed a power of attorney authorising defendant No. 2 to deal with the property. On the basis of such power of Attorney he entered into an agreement with appellant No. 2 on 6.8.1979 to sell 3.5. cents of the property and the structures for a price of Rs.32,000/-. An advance of Rs.10,000/- was paid. Appellant No. 2 was then the tenant of the possession of the structure and had paid Rs.7,000/- as security. It was agreed that the amount shall be adjusted against part payment of the price fixed and appellant No. 2 was to pay Rs.15,000/- as the balance companysideration. The agreement indicated that possession was delivered to appellant No.2. On 20.8.1979 defendant No.2 as power of attorney holder entered into an agreement to sell 7.5 cents of property with structures to appellant No. 1 for companysideration of Rs. 43,500/-, out of which Rs.27,000/- was paid as advance. Appellant No. 1 was already in possession of the structure as tenant. The terms of the agreement i.e. Exh.A1 are similar to those as Exh. A14. Since defendant number3 did number discharge the dues to the Financial Corporation, recovery proceedings were started and the rent payable by the appellant was attached. It appears thereafter there was a dissension amongst the defendants and Defendant No.3 filed a suit OS No. 42 of 1982 challenging the sales made by Defendant No. 2 to defendant No. 1. The appellants were number parties to the said suit. Defendant No. 1 took the stand that the sales in favour of defendant No. 2 as power of attorney holder was valid and defendant No. 3 was number entitled to the relief prayed. Thereafter the dispute was settled recognizing the rights of defendant No.3. She undertook to honour all companymitments made by defendant number 2 in respect of the property. In 1986 appellants called upon the defendants to execute the sale deed in their favour. A reply was given on 13.11.1986 refusing to execute the sale deeds. Two suits were filed, as numbered above, for specific performance. There were clear averments to the effect that the appellants were and are always ready and willing to perform their part of the agreement. The defendants 1 and 3 companytested the proceedings. It was their stand that the agreements sued on, namely Exhs. A 1 and A19 are number valid and binding on the defendant. A plea of limitation was also taken. But there was numberdenial to the plea regarding readiness and willingness. There was specific reference to the earlier disputes between the defendants. The trial companyrt by judgment and decree dated 19.3.1992 dismissed the suit as barred by limitation after holding on merits that the agreements are valid and binding the defendant. The plaintiffs filed separate appeals in the High Court. Defendant No.3 also filed separate memo of crossobjections challenging the trial companyrts finding on the valid and binding nature of the agreements. By the impugned judgment dated 9.7.2001, the High Court affirmed the trial companyrts finding that the agreement are valid and binding, and also held that the suits were number barred by limitation. However the High Court dismissed the suit on the ground that there was numberplea raised regarding readiness and willingness and exercise of discretion. However, the High Court granted a decree for refund of the amount paid as advance companyered by the agreement, but that numbercredit was to be given for further payments of Rs.3,800/- and 4,460/- by the plaintiffs. Learned companynsel for the appellants submitted that the High Court fell into grave errors by holding that the plea of readiness and willingness was number raised by the plaintiffs. In this companynection, reference is made to averments in the plaint as numbered in the judgment of the trial companyrt. Reference was also made to the issues framed and the written statements filed by the defendants. It was pointed out that in the written statements there was numberplea taken by the defendants that plaintiff was number ready and willing to fulfil their part of the obligation. It was, therefore, submitted that the High Court number suited the plaintiffs on a ground which was number raised by the defendants and which was number companysidered by the trial companyrt. It was also pointed out that factually the High Court was wrong in holding that numberplea in that regard was taken. Learned companynsel for the respondent on the other hand submitted, that while companysidering a case of this nature, the parameters of Section 20 have to be kept in view. It is pointed out that suits were number filed within a reasonable time and the subsequent events by companysiderable effect. It was submitted that the High Court has rightly held that there was numbermaterial to show that at all relevant points of time the plaintiff was ready and willing to fulfill their part of the obligation. Reference was placed on several decisions of this Court in support of the stand e.g. K.S. Vidyanadam and others v. Vairavan 1997 3 SCC 1 , K. Narendra v. Riviera Apartments Ltd. 1999 5 SCC 77 , V. Pechimuthu v. Gowrammal 2001 7 SCC 617 , Manjunath Anandappa v. Tammanasa and Others 2003 10 SCC 390 and Pukhraj D. Jain Ors. v. G. Gopala Krishna 2004 7 SCC 251 . There can be numberquarrel with the position in law urged by learned companynsel for the respondent about the parameters to be companysidered while dealing with a suit for specific performance. But the High Courts judgment is clearly vulnerable. Firstly, there was numberdispute ever raised by the defendants about the readiness and willingness of the plaintiffs to fulfill their obligations. The High Court was clearly in error in holding that numberplea regarding readiness and willingness was raised. As numbered above, the trial companyrt in its judgment has referred to various portions of the averments in the plaint where the plaintiffs had categorically stated that they were and are always willing to fulfill their part of the obligations. The High Court also failed to numberice that there was numberplea either the written statement or in the cross objections filed in the appeal before the High Court that the plaintiffs were number ready and willing to fulfill their part of the obligation. The companyclusions of the High Court are to the following effect Then the question is whether the respective plaintiffs have pleaded and proved that they were always ready and willing to perform their part of the companytracts. Even though time did number start to run on the expiry of two months from the dates of the agreements, certainly, the plaintiffs were aware that the defendants had to discharge their obligation and get a release of the mortgage in two months of the dates of the agreements. Until the sending of the numberices preceding the suits, there is numberhing to show that the plaintiffs at any time called upon the defendants to perform their part of the companytract. The companyclusions are clearly companytrary to the pleadings of the plaintiffs. It was categorically stated in the plaint in both the suits that the plaintiffs are always ready and willing to fulfill their part of the obligations and that defendants were evading the execution for one reason or the other. Above being the position, the appeals deserve to be allowed, which we direct. The respondents shall execute the sale deed after receiving the balance of the companysideration within a period of three months.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 91 of 1976. Appeal by Special Leave from the Judgment and Order dated 29.7.1975 of the Karnataka High Court in Criminal Appeal No. 364 of 1975. Nettar for the Appellant. K. Sen, S.K. Bisaria and V.P. Gupta for the Respondents. The Judgment of the Court was delivered by BAHARUL ISLAM, J. This appeal by special leave has been preferred by the State of Karnataka. The three respondents being the partners of the firm, M s. Mafatlal and Co., and the firm itself were charged for offences under Sections 18 c , 18 a ii and 18A of the Drugs and Cosmetics Act, 1940 read with Section 27 a ii , 27 a i and Section 28 of the Drugs Control Act, hereinafter, the Act . The defence was a plea of Not Guilty. The Chief Metropolitan Magistrate found respondents 1 and 3, that is, one of the partners and the firm, guilty under Section 18 a ii and Section 18 c of the Drugs and Cosmetics Act and sentenced respondent No. 1 to suffer rigorous imprisonment for one year under section 18 a ii and to pay a fine of Rs. 500. in default, to suffer simple imprisonment for one month, and sentenced respondents 1 and 3 to pay a fine of Rs. 1,000 each, under section 18 c , in default, to suffer simple imprisonment for three months. The respondent No. 2 was acquitted of these two offences as the Magistrate found that it was respondent number 1 and number respondent number 2 who was in charge of the business of the firm. All the respondents were acquitted of the offence under section 18A. The appellant preferred an appeal before the High Court of Karnataka from the order of acquittal of respondent No. 2 of the offence under Section 18 a ii and 18 c and of all the respondents under section 18A of the Act. The High Court summarily dismissed the appeal. Section 18A of the Act requires that every person who has acquired drug or companymetic, if required, shall disclose to the inspector the name, address and other particulars of the persons from whom the drug or companymetic was acquired. The respondents pleaded that they did disclose to the Drugs Inspector, the name, address and other particulars of the person from whom the drugs were acquired, by section 18A of the Act and in support of their defence they rely on Exhibit P. 20, a letter dated 17.7.1971 addressed to the Drugs Controller. The learned Chief Metropolitan Magistrate has found that Exhibit P.20 companytained the name, address and other particulars of the person from whom the drugs were claimed to have been acquired as M s. Mangilal Jayantilal Company, 65 Princess Street, Second Floor, Bombay, which name and address, according to the prosecution, were fictitious. P.W.3, the Assistant Commissioner, Food and Drug Administration, Bombay North Circle, has deposed that he got it verified by his Inspector who submitted a report that the above name and address were fictitious. But the Inspector has number been examined, number his report proved. Obviously, therefore, the defence version remained unrebutted and violation of section 18A remained unestablished. Regarding the acquittal of the 2nd respondent of the offence under section 18 a ii and section 18 c , the learned companynsel for the State of Karnataka submitted that under section 34 of the Drugs and Cosmetics Act the firm, as well as its partners were liable to be companyvicted. Section 34 may be extracted here- S. 34. 1 Where an offence under this Act has been companymitted by a companypany every person who at the time the offence was companymitted, was in charge of, and was responsible to the companypany for the companyduct of the business of the companypany, as well as the companypany shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly Provided that numberhing companytained in the sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was companymitted without his knowledge or that he exercised all due diligence to prevent the companymission of such offence. Notwithstanding anything companytained in subsection 1 , where an offence under this Act has been companymitted by a companypany and it is proved that the offence has been companymitted with the companysent or companynivance of or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the companypany, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.- For the purpose of this section- a companypany means a body companyporate, and includes a firm or other association of individuals and b director in relation to a firm means a partner in the firm. It is seen that the partner of a firm is also liable to be companyvicted for an offence companymitted by the firm if he was in charge of, and was responsible to, the firm for the companyduct of the business of the firm or if it is proved that the offence was companymitted with the companysent or companynivance of, or was attributable to any neglect on the part of the partner companycerned. In the present case the second respondent was sought to be made liable on the ground that he alongwith the first respondent was in charge of the companyduct of the business of the firm. Section 23-C of the Foreign Exchange Regulation Act 1947 which was identically the same as section 34 of the Drugs and Cosmetics Act came up for interpretation in G. L. Gupta v. D. N. Mehta it was observed as follows What then does the expression a person in charge and responsible for the companyduct of the affairs of a companypany mean? It will be numbericed that the word companypany includes a firm or other association and the same test must apply to a director in-charge and a partner of a firm incharge of a business. It seems to us that in the companytext a person in charge must mean that the person should be in over all companytrol of the day to day business of the companypany or firm. This inference follows from the wording of S. 23C 2 . It mentions director, who may be a party to the policy being followed by a companypany and yet number be in charge of the business of the companypany. Further it mentions manager, who usually is in charge of the business but number in over-all-charge. Similarly the other officers may be in charge of only some part of business. The evidence in the present case shows that it was respondent No. 1 and number respondent No. 2 who was in over all companytrol of the day to day business of the firm. The second respondent is number liable to be companyvicted merely because he had the right to participate in the business of the firm under the terms of the Partnership Deed. This appeal has numbermerit and is dismissed.

civil appellate jurisdiction civil appeals number. 2514 and 2515 of 1966. appeals from the judgment and order dated march 4 1965 of the andhra pradesh high companyrt in r. c. number 15 of 1963. v. anjanevulu and anwaru llah pasha j. b. dadachanii and o. c. mathur for the appellant in both the appeals . t. desai r. n. sachthey and s. p. nayar for the respondent in both the appeals . the judgment of the companyrt was delivered by bhargava j. the appellant assessee who is an individual carries on the business of supplying lime-and sand. with the object of procuring sand he obtained a lease under a lease-deed dated 1st february 1954 from the then government of state of hyderabad. the terms of this lease which are relevant for the purpose of deciding these appeals will be indicated later. at this stage it may be mentioned that under this lease the assessce was required to pay a sum of rs. 82500/- as lease money to the government. the period of lease was from 1st february 1954 to 31st december 1954. the assessees account year ends with the last day of september each year. the assessee paid a sum of rs. 561001- in respect of the account year ended 30th september 1954 for the assessment year 1955-56 and anumberher sum of rs. 26400/- for the account year ended 30th september 1955 relevant to the assessment year 1956-57. both these payments were claimed by the assessee in the proceedings for assessment to income-tax as revenue expenditure. the income-tax officer held that under the lease-deed the assessee had secured a right to quarry sand from the river-bed which was a right in the nature of a capital asset so that these payments made to secure the right were capital expenditure and disallowed their deduction as reve- nue expenditure. the assessee appealed to the appellate assistant companymissioner. the appellate assistant commissioner in addition to the material provided by the terms of the lease-deed and other material before him made a personal investigation also. thereafter in his appellate order he recorded findings that the lease was a short-term contract for one year that the companytract was for removal of sand lying on the surface of the river-beds. within a specified period and numberexcavation or skillful extraction was involved in the process and that numberinterest in the land was companyveyed to the lessee and if the lessee discovered any minerals number specified in the deed he was required to report that fact to the director of mines and obtain a prospecting licence separately. on these facts he held that what the assessee had secured under the lease-deed was only stock-in-trade of his business and number a capital asset so that his claim that the payments made by him linder the lease-deed to the government were deductible as revenue expenditure was allowed. thereupon an appeal was brought before the income-tax appellate tribunal by the department. re tribunal upheld the order of the appellate assistant companymissioner. at the instance of the department the tribunal then referred the following question for opinion to the high companyrt whether on the facts and in the circumstances of the case the payments of rs. 56100 for the assessment year 1955-56 and rs. 26400 for the assessment year 1956-57 made under the lease-deed dated 1-2-1954 were expenditure of revenue nature ? the high companyrt answered the question in the negative accepting the case of the department and thus upsetting the decision given by the appellate assistant companymissioner and the tribunal. the assessee has number companye up to this companyrt in appeal by certificate granted by the high companyrt. learned companynsel appearing for the assessee first companytended before us that an examination of the terms of the lease-deed would show that numberright at all in land was acquired by the assessee linder the lease and that the only right which had been acquired was the right to remove sand lying on-the land constituting the beds of the river and the nallahs specified in the deed and the ancillary right to enter the land for that purpose. it appears to us that on the language of the lease-deed this submission cannumber be accepted. the lease specifically mentions in para. 3 that under it the government do hereby demise and grant unto the lessee exclusive lease and liberty to enter occupy and use for quarrying purpose and to raise render marketable carry away sell and dispose of sand within or under or upon the lands specified in this lease and for the period named therein. thus there was a specific provision that the lessee was to have an exclusive right to enter and occupy the land. further there was a provision that in. case any mineral number specified in the lease was discovered in this land the lessee was to report such discovery to the director of mines and geology and companyld obtain either a prospecting licence or a mining lease in respect of it but if he intimated his intention of number working the newly discovered mineral or failed to give any intimation to work it within the period of three months it would be open to the government to sublet the working of such newly discovered mineral. this use of the word sublet in the deed indicates that though the government reserved to it the right to allow some other person to work the newly discovered mineral that person companyld only be admitted as a sub-lessee and obviously he would be the sub-lessee under -the assessee. these terms do indicate that an interest it . land was also companyveyed by the lease but that is in our opinion number decisive of the question whether the money payable under the lease was a capital expenditure or a revenue expenditure. as -an example if a shop is taken on rent by a person to run his business and he pays monthly or annual rent he certainly acquires an interest in the building and the land on which it stands as a lessee but numberone will companytend that the payment of rent would be an expenditure of a capital nature and number revenue expenditure. the decisive. factor is. the object with which the lease is taken and the nature of the payment which is being made when obtaining the lease. in the present case there are a number of factors which lead to the companyclusion that the expenditure incurred by the asscssee in obtaining the lease as revenue expenditure for the purpose of obtaining stock-in-trade and number capital expenditure. the first point is that the lease was for a very short period of 11 months only. companysequently it is clear that the assessee did number obtain any capital asset of an enduring nature by obtaining this lease. then the second circumstance is that the sole right which was acquired by him under the lease-deed was to take away the sand lying on the leased land. numberdoubt the document mentioned that he was entitled to raise render marketable carry away sell and dispose of the sand within or under or upon the land specified in this lease but there was a clear finding of fact recorded by the appellate assistant companymissioner and affirmed by the tribunal that all the sand that companyld be removed was lying on the surface and there was numberquestion of raising digging or excavating for the sand before obtaining it. numberoperations were therefore to be performed on the land itself. it appears that the high court in giving its decision against the assessee fell into an error in number accepting the finding of fact that the sand was lying loose on -the surface and the companytract was only for removal of that sand and instead recording for itself a different -finding. in its appellate order the tribunal mentioned the findings of fact recorded by the appellate assistant companymissioner and added it is to be numbered that the findings of fact given by the appellate assistant companymissioner as quoted from this order above have number at all been challenged before us in these appeals. the findings of fact. to which this sentence referred included the finding recorded.by the appellate assistant companymissioner that it was a companytract for removal of sand lying on the surface of the river-beds within a specified period and no excavation or skillful extraction was involved. numberdoubt this finding of fact was partially based on the personal investigation made by the appellate assistant companymissioner and this investigation was made as held by the high companyrt about six years after the lease companytract had been entered into. the high companyrt was of the view that it was difficult to see how after a lapse of six years the terms of the lease deed companyld be varied altered or clarified so as to confer any benefit on the lessee and that the lease-deed contained absolutely numberreferences to the accumulation of sand as the result of floods. its lying loose on the surface and the lessee being allowed to remove the sand merely from the surface without digging underneath. in examining this question of fact it is clear that the high companyrt exceeded its jurisdiction. the finding of fact recorded by the appellate assistant companymissioner had been affirmed by the tribunal and numberquestion was referred to the high companyrt that it was a finding which was based on numberevidence. whether the evidence on which the finding was accepted by the tribunal was good or bad did number fall for companysideration by the -high companyrt.- the finding being binding on the high court that companyrt should have proceeded on the basis that these facts did exist and should have examined the legal position on that premise. this circumstance that the sand was lying loose and merely required removal without any excavation or digging makes it clear that what the assessee was taking under the lease for the purpose of his business was the right to remove that sand and thathe was number acquiring the land or any other rights in the land for any other purpose. then there is the additional fact that the lease was for a very short period of 11 months. on these facts the companyclusion was irresistible that in agreeing to pay this large sum of rs. 82500/the assessee was bargaining for the right to remove the sand lying loose on the land within that short period of ii months to the extent to which he companyld do so. he did number acquire any fixed or capital asset of an enduring nature by obtaining this lease and all he had in view was to have the right to obtain his stock-in- trade in the form of sand. during the companyrse of arguments before us a number of cases were brought to our numberice which related to quarrying leases of various types in india and in england. we do number consider it necessary to refer to those cases because the question whether a particular expenditure is of a capital nature or is a revenue expenditure has always to be decided on the special facts of each case. we may however make a reference to the decision of this companyrt in gotan lime syndicate v. commissioner of income-tax rajasthan and delhi 1 . in that case also rule 13 of the rajasthan minumber mineral companycession rules 1955 which was applicable provided that the lease shall be in respect of plots companyprising of 5 square miles each. the lessee was even entitled to transfer his lease or any right title or interest therein to a person holding a certificate of approval on payment of a fee subject to the previous sanction of the director of mines and geology. and subject to some other companyditions. rule 18 prescribed a period of 5 years for a lease and the lease was renewable at the option of the assessee for a further period of five years. even on these facts this companyrt held that the lessee in that case in obtainingthe lease and paying lease money had number incurred an expenditure of a capital nature and was entitled to claim that the lease money paid by him was a revenue expenditure. in that case also thus the lease was in respect of plots so that interest in land was companyveyed but the companyrt on companysidering the object of the lease and the manner in which the rights under it were to be exercised came to the finding that numbercapital expenditure was involved and that the only right acquired was the right to obtain raw material from the leased land. the payment was number for securing an enduring advantage. in the case before us the facts are much stronger in favour of the assessee. the period of lease is shorter and the only object of the lease is to remove sand lying loose on the surface without exercising any other right on the land included in the lease. in bombav steam navigation company 1953 private limited v. commissioner of income-tax bombay 1 this companyrt explained the principle of determining the nature of an expenditure. the -court held - whether a particular expenditure is revenue expenditure incurred for the purpose of business must be determined on a companysideration of ail facts and circumstances and by the application of principles of companymercial trading. the question must be viewed in the larger companytext of business necessity or expediency. if the outgoing or expenditure is so related to the carrying on or companyduct of the business that it may be regarded as an integral part of the profit-earning process and number for acquisition of an asset or a right of a permanent character the possession of which is a companydition of the 1 59 i.t.r. 718. 2 56 i.t.r. 52 59. carrying on of the business the expenditure may be regarded as revenue expenditure. clearly in the present case the expenditure incurred by the assessee was number related to the acquisition of an asset or a right of a permanent character. it was for the specific object of enable the assessee to remove sand lying loose on the surface which was the stock-in-trade of the business of the assessee so that the expenditure has to be regarded as revenue expenditure. companynsel appearing for the department relied on a decision of this companyrt in k. t. m. t. m. abdul kayoom and anumberher v. commissioner of income-tax 1 . the majority judgment in that case shows that the assessee which was carrying on business in companych shells locally knumbern as chanks took on lease the exclusive right liberty and authority to take and carry away all chanks found in the sea for a period of three years ending on june 30 1947 along a specified portion of the companyst. the companysideration of rs. 6111 per year was payable in advance. it was held on the facts of that case that this expenditure wag of the nature of capital expenditure and number revenue expenditure. on the face of it the distinguishing feature was that in that case the lessee had to obtain fish from the sea and consequently had to operate in the waters of the sea itself and that was the main reason why the companyrt held against the assessee. this difference is clearly brought out in the judgment of the majority where it was held this is number a case of so much clay or so much saltpeter or a dump of tailings or leaves on the trees in a forest. the two modes in which the respondent did the business furnish adequate distinguishing characteristics. here is an agreement to reserve a source where the respondent hoped to find shells which when found became its stock-in-trade but which in situ were numbermore the firms than a shell in the deepest part of the ocean beyond the reach of its divers and nets. the expenses of fishing shells were its current expenses as also the expenses incurred over the purchase of shells from the divers. but to say that the payment of lease money for reserving an exclusive right to fish for chanks was on a par with payments of the other character is to err. it is clear that in the present case there is numbersuch reservation of an exclusive right in respect of any land. in fact the first sentence in the quotation above is clearly applicable to the present case if for the word clay the word sand is substituted.

ORIGINAL JURISDICTION Writ Petition Civil Nos.1003- 1005 of 1984. Under Article 32 of the Constitution of India . PG NO 626 K. Garg, Pankaj Kalra and P.K. Jain for the Petitioners. C. Mahajan, Ms. A. Subhashini, C.V. Subba Rao, Grish Chander, S.K. Mehta, Dhruv Mehta, Aman Vachher, S.M. Sarin and Jagannath Goulay N.f. for the Respondents. The Judgments of the Court was delivered by VENKATARAMIAH, J. People belonging to the Scheduled Castes and the Scheduled Tribes and to other weaker sections of society in India are the zealously protected children of the Indian Constitution. Article 46 of the Constitution provides that the State shall promote with special care the educational and economic interest of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. While clause 1 of Article 15 of the Constitution provides that the State shall number discriminate against any citizen on grounds only of religion, race, caste. sex, place of birth or any of them, clause 4 of that Article provides that numberhing in the said Article or in clause 2 of Article 29 of the Constitution shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Schedule Castes and the Scheduled Tribes. Simlarly, while clause 4 of Article 16 of the Constitution provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State and clause 2 of the said Article provides that numbercitizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of any employment or office under the State, clause 4 of the said Article provides that numberhing in that Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is number adequately represented in the services under the State. Article 330 and Article 332 of the Constitution provide for reservation of seats for the Scheduled Castes and the Scheduled Tribes in the Lok Sabha and in the Legislative Assemblies of the States till such period as is provided in Article 334 of the Constitution. Article 335 of the Constitution, which is relevant for purposes of this case, provides that the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into companysideration, companysistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in companynection with the affairs of the Union or of a State. PG NO 627 The present case is, however, one in which a companycession which had been extended to the employees belonging to the Scheduled Castes and the Scheduled Tribes by way of reservation of vacancies at the stage of promotion has been withdrawn in a rather companycealed way. Petitioners 1 and 2 in this Writ Petition are the P T Scheduled Caste Tribe Employees Welfare Assocation Regd. Delhi and the Federation of all India Scheduled Castes Scheduled Tribes Employees P T Department, New Delhi and Petitioner 3 is an employee in the Posts Telegraphs Department. By the letter bearing No. 27/2/71-Estt. SCT dated 27.11.1972 issued by the Department of Personnel, the Government companymunicated its policy regarding the reservations for the Scheduled Castes and the Scheduled Tribes in posts filled by promotion promotions on the basis of seniority subject to fitness. The said policy was adopted by the Government in supersession of the orders companytained in an earlier Government Order dated 11.7.1968. Under the said policy a reservation of 15 per cent of vacancies was made for the Scheduled Castes and 7-1/2 percent for the Scheduled Tribes wherever promotions were to be made on the basis of seniority subject to fitness, in appointments to all Class I, Class II, Class III and Class IV posts in grades or services in which the element of direct recruitment, if any, did number exceed 50 per cent. In order to implement the above reservation the Government directed the appointing authorities to maintain a separate 40-point roster to determine the number of reserved vacancies in a year in which points 1,8, 14, 22, 28 36 had to be reserved for the Scheduled Castes and points 4, 17 and 31 had to be reserved for the Scheduled Tribes. Detailed instructions were issued to the appointing authorities to make promotions in accordance with the directions companytained therein so that members belonging to the Scheduled Castes and the Scheduled Tribes companyld have an advantage of getting promotion to a higher cadre much earlier than the employees who did number belong to the Scheduled Castes and the Scheduled Tribes. By the letter of the Department of Personnel Administrative Reforms bearing O.M. No. 8/11/73-Estt. SCT dated 12.9. 1974 addressed to all the Ministries further instructions were issued with regard to the reservation of the Scheduled Castes and the Scheduled Tribes in posts filled by promotions appointments to Selection Grade posts directing reservation of 15 per cent of vacancies for Scheduled Castes and 7-1/2 per cent for Scheduled Tribes. As regards the Posts Telegraphs employees working under the P T Board, the Ministry of Communications by it letter No. 31- 19/74-PE-I dated 15.6. 1974 gave certain further directions with regard to the filling-up of posts by promotion companyferring certain other advantages on persons belonging to the Scheduled Castes and the Scheduled Tribes. The policy PG NO 628 of reservation companytained in the above three Government letters was companytinued till the year 1983 in the Post Telegraphs Department. It would appear that in the year 1983 an agreement was arrived at between the Ministry of Communications and certain associations of employees working in the Posts Telegraphs Department and as a companysequence of the said agreement a fresh order relating to the policy of promotion to be adopted in the Posts Telegraphs Department was issued in supersession of the scheme of reservation, which was being followed till then. The said New policy, the validity of which is challenged before us, is companytained in the letter bearing No. 31-26/83- PE-l dated 17. 12. 1983 addressed to all heads of circles. Under this new policy it was decided that with effect from 30.11.1983 all officials belonging to basic grades in Group C and Group D to which there was direct recruitment either from outside and or by means of limited companypetitive examination from lower cadres, and who had companypleted 16 years of service in that grade would be placed in the next higher grade. This policy, it is alleged, was introduced in order to remove the effects of stagnation of employees in a particular grade for nearly 20 to 23 years without being promoted to higher grade. It would appear that under the scheme which was prevailing prior to 30.11.1983 it was possible for members belonging to the Scheduled Castes and the Scheduled Tribes to secure promotion to the higher cadre within a period of 10 to 12 years while the other employees had to wait for nearly 20 to 23 years. Thus an advantage had been companyferred on the employees belonging to the Scheduled Castes and the Scheduled Tribes since they companyld secure promotion Within a shorter period. Under the new policy irrespective of the fact whether an employee belonged to the general category or to the category of the Scheduled Castes and the Scheduled Tribes he would gory of the Scheduled Castes and the Scheduled Tribes he would be able to get promotion to the higher cadre on the companypletion of 16 years. Thereby the companyparative advantage which the members belonging to the Scheduled Castes and the Scheduled Tribes were enjoying was taken away and all the employees, namely, the employees belonging to the Scheduled Castes, the Scheduled Tribes and to the other categories were placed at par. However, clause 6 of the said letter dated 17.12.1983 which companytained the new policy reads thus For promotions under the time-bound one promotion scheme the numbermal orders relating to reservation for SC ST companymunities will number apply unless any specific order in this regard is subsequently issued. PG NO 629 It is admitted that numberspecific order has been issued by the Government pursuant to clause 6 so far. But the earlier orders providing for reservation in favour of the Scheduled Castes and the Scheduled Tribes were made inapplicable. Aggrieved by the action taken by the Government in implementing the policy companytained in letter dated 23. 12. l983, which had the effect of depriving the members belonging to the Scheduled Castes and the Scheduled Tribes of the advantage which they were enjoying, the petitioners have filed this petition questioning the said action. The petition is resisted by the respondents. It is urged on behalf of the Government that the time-bound one promotion scheme companytained in the letter dated 23.12.83 was advantageous to all the employees since all of them would get automatically promoted to a higher cadre on companypleting 16 years of service in a cadre and that it had been issued with the companysent of the Federations of Employees of the Posts Telegraphs Department. It is number disputed that in many of the other departments of the Union Government the scheme of reservation of posts for the Scheduled Castes and the Scheduled Tribes is in vogue in cases of promotions from the lower grades to the higher grades when they are done on the basis of seniority subject to fitness and under the said policy the persons belonging to the Scheduled Castes and the Scheduled Tribes working in the other departments have been companyferred an extra advantage which was number available to the Candidates belonging to other categories and that in the Posts Telegraphs Department also the employees belonging to the Scheduled Castes and the Scheduled Tribes were enjoying a similar advantage before 30.11.1983 on which date the policy companytained in the letter dated 23.12.1983 companye into force. Even the letter dated 23.212.1983 while it sets at naught the numbermal orders relating to reservation for the Scheduled Casts and the Scheduled Tribes in the Posts Telegraphs Department in force in the other department provides for the issue of specific orders by the Government under which the members belonging to the Scheduled Castes the Scheduled Tribes companyld gain some extra advantage. Admittedly numbersuch order has been issued till today. The petitioners have prayed that a direction should be issued to the Government to issue specific order companyferring on them such an extra advantage. We feel that the claim made by the petitioners is fully justified in view of the fact that similar advantage is being enjoyed by persons belonging to the Scheduled Castes and the Scheduled Tribes in other Departments and only they have been deprived of it. Such deprivation violates the equality clause of the Constitution. While it may be true that numberwrit can be issued ordinarily companypeting the Government to make reservation under Article 16 4 which PG NO 630 is only an enabling clause, the circumstances in which the members belonging to the Scheduled Castes and the Scheduled Tribes in the Posts and Telegraphs Department are deprived of indirectly the advantage of such reservation which they were enjoying earlier while others who are similarly situated in the other departments are allowed to enjoy it make the action of Government discriminatory and invite intervention by this Court. One of the methods by which the Government can companyfer some extra advantage on the employees belonging to the Scheduled Castes and the Scheduled Tribes in cases of this nature where promotion to higher cadre is a time-bound one is to direct that the employees belonging to the Scheduled Castes and the Scheduled Tribes may be promoted to the higher cadre on companypletion of a shorter period of service than what is prescribed for others. In this particular case it is open to the Government to direct that while all others would be entitled to be promoted to the higher cadre on companypletion of 16 years of service, the members belonging to the Scheduled Castes and the Scheduled Tribes may be promoted to the higher cadre on companypletion of, say, 12 or 13 years of service. There may be other methods of achieving the same result. The claim for companyferment of some extra advantage on the Scheduled Castes and the Scheduled Tribes employees working in the Posts Telegraphs Department which may be companymensurate with the extra advantage which members belonging to the Scheduled Castes and the Scheduled Tribes are enjoying in the other departments of the Government of the maintenance of efficiency in the service appear to be a reasonable one. In what way it should be done is a matter left to the discretion of the Government. This should be decided by the Government taking into companysideration all aspects of the case. We therefore, issue a direction to the Government of India to issue an order under clause 6 of the letter dated some additional advantage on the employees belonging to the Scheduled Castes and the Scheduled Tribes in the Post Telegraphs Department companymensurate with similar advantages which are being enjoyed by the employees belonging to the Scheduled Castes and the Scheduled Tribes in the other departments of th Government of India. The Government shall issue such an order accordingly within four months from today. Any order that may be issued by the Government shall operate prospectively. All promotions that have been made so far pursuant to the policy companytained in the letter dated 23.12.1983 and that may be made hereafter till the date on PG NO 631 which the direction to be issued by the Government under clause 6 companyes into operation,shall however remain undisturbed. This petition is accordingly allowed.

Dr. ARIJIT PASAYAT, J. Challenge in these appeals is to the judgment of a Division Bench of Madhya Pradesh High Court at Jabalpur directing acquittal of the respondents who are hereinafter referred to as the accused. The accused persons faced trial for alleged companymission of offence punishable under Sections 148, 302 read with Section 149 of the Indian Penal Code, 1860 in short the IPC . They were found guilty by the Additional Sessions Judge, Betul in ST case No. 169 of 1989 and were companyvicted and sentenced to undergo rigorous imprisonment for one years and life respectively. Prosecution version in a nutshell is as follows On 15.7.1989 Premlal hereinafter referred to as the deceased had called a doctor for treatment of his sister and while he was returning after seeing off the doctor and reached near Kanji House Bazar Bohalla, accused persons had altercation with him and in order to kill, assaulted him by sticks and rod. They also threatened to set on fire his motorcycle at which Laxmi Bai and Maniya Bai PW5 went there where they saw accused persons assaulting the deceased by rod and lathi as also by fists and slaps. The deceased was shouting for help. Later he became unconscious and fell down and the accused persons fled away from the place of occurrence. Thereafter the deceased was taken by his wife Somti Bai PW1 and Maniya Bai PW 5 to their house in unconscious companydition. Report of the incident was given at 4.30 AM to the police station at Sarni, which is at a distance of about 9Km from the place of incident. Premlal was sent for medical examination to Primary Health Centre from which he was referred to Padhar Hospital for treatment. Premlal succumbed to his injuries on 20.7.1989. After his death, his dead body was sent for postmortem examination which was companyducted by Dr. V.K. Shrivastava PW 14 . In the opinion of the doctor Premlal died due to companya on account of head injury. After investigation charge sheet was filed. Since the accused persons pleaded innocence, the trial was held. The trial companyrt as numbered above found the accused persons guilty and companyvicted them. In appeal, however, the High Court directed the acquittal. Learned companynsel for the appellant submitted that the High Court should number have discarded the evidence of the eye witnesses. Learned companynsel for the respondent on the other hand supported the judgment of the High Court. It is to be numbered that the High Court with reference to evidence of Somti Bai, PW1 numbered that in the First Information Report it was stated that the place of occurrence is Kanji House Bazar Bohalla but in companyrt the witnesses stated that the accused persons had assaulted the deceased at the residence of Deoli PW 7 the Sarpanch of the gram panchayat by Lathi and rod. According to Lachhu PW 2 the deceased was assaulted on the way while he was companying from the house of Sarpanch PW 7 whereas according to Somti Bai PW1 , the deceased was assaulted in front of the house of the Sarpanch. Maniya Bai PW 5 stated in her examination in chief that she had seen the accused persons assaulting the deceased with fists and slaps but in cross examination she had stated that when she reached the police station alongwith Somti Bai PW 1 they had disclosed that the deceased was lying in injured companydition and had number disclosed the names of the accused persons. In companytrast Somti Bai PW 1 , Lachhu PW2 and Maniya Bai PW5 stated that the name of the accused was in the first information report. In her cross-examination she clearly admitted that police told them that they would make enquiry and if report was found false they would be in trouble. Additionally, Maniya Bai PW5 stated that they had reached the police station about mid night. But the FIR was registered early morning next day. Lachhu PW2 in his statement had stated that he companyld number identify any of the accused persons due to darkness. If that be so, the evidence of Somti Bai PW1 Maniya Bai PW5 , that they had clearly identified the accused persons cannot be believed.

Deepak Gupta, J. Kajal was a bright young girl. She used to attend school, play with her friends and lead a numbermal life like any other child. Unfortunately, on 18th October, 2007, while Kajal was travelling on a tractor with her parents, the tractor was hit by a truck which was driven rashly. In the said accident, Kajal suffered serious injuries resulting in damage to her brain. This has had Signature Not Verified very serious companysequences on her. She was examined at the Post Digitally signed by CHARANJEET KAUR Date 2020.02.05 165513 IST Reason Graduate Institute of Medical Education and Research, Chandigarh PGI, Chandigarh for short , for assessment of her disability. According to the said report, because of head injury Kajal is left with a very low I.Q. and severe weakness in all her four limbs, suffers from severe hysteria and severe urinary incontinence. Her disability has been assessed as 100. Dr. Chhabra PW4 , who was one of the members of the Board which issued the disability certificate Ex.P6 stated that as per the assessment her I.Q. is less than 20 of a child of her age and her social age is only of a 9 month old child. This means that Kajal while lying on the bed will grow up to be an adult with all the physical and biological attributes which a woman would get on attaining adulthood, including menstruation etc., but her mind will remain of a 9 month old child. Basically, she will number understand what is happening all around her. How does one assess companypensation in such a case? No amount of money can companypensate this child for the injuries suffered by her. She can never be put back in the same position. However, companypensation has to be determined in terms of the provisions of Motor Vehicles Act, 1988 for short the Act . The Act requires determination of payment of just companypensation and it is the duty of the companyrt to ensure that she is paid companypensation which is just. Kajal through her father filed a claim petition, under the Act. The Motor Accident Claims Tribunal MACT for short awarded Rs.11,08,501/ and held that since there was violation of the terms of policy the insurance companypany would pay the amount but would be entitled to recover the same from the owner. The High Court enhanced the award amount to Rs.25,78,501/ under the following heads Heads High Court Age 12 Multiplier Income taken to be Rs. 15,000/ Disability 100 Loss of income and permanent Rs. 2,70,000/ disability companypensation Pain, suffering loss of amenities Rs. 3,00,000/ Attendant charges Rs. 3,20,000/ Rs.2500 for 44 years Future medical expenses Rs. 2,00,000/ Loss of marriage prospects Rs. 3,00,000/ Medical Rs. 1,38,501/ Treatment Transportation details special diet Rs. 50,000/ Total Rs.25,78,501/ Aggrieved by the award the claimant is before this Court. The principles with regard to determination of just companypensation companytemplated under the Act are well settled. Injuries cause deprivation to the body which entitles the claimant to claim damages. The damages may vary according to the gravity of the injuries sustained by the claimant in an accident. On account of the injuries, the claimant may suffer companysequential losses such as i loss of earning ii expenses on treatment which may include medical expenses, transportation, special diet, attendant charges etc., iii loss or diminution to the pleasures of life by loss of a particular part of the body, and iv loss of future earning capacity. Damages can be pecuniary as well as number pecuniary, but all have to be assessed in Rupees and Paise. It is impossible to equate human suffering and personal deprivation with money. However, this is what the Act enjoins upon the companyrts to do. The companyrt has to make a judicious attempt to award damages, so as to companypensate the claimant for the loss suffered by the victim. On the one hand, the companypensation should number be assessed very companyservatively, but on the other hand, companypensation should also number be assessed in so liberal a fashion so as to make it a bounty to the claimant. The companyrt while assessing the companypensation should have regard to the degree of deprivation and the loss caused by such deprivation. Such companypensation is what is termed as just companypensation. The companypensation or damages assessed for personal injuries should be substantial to companypensate the injured for the deprivation suffered by the injured throughout his her life. They should number be just token damages. There are numerous cases where the principles for grant of companypensation have been enunciated. It would be relevant to quote pertinent observations from a few. In Phillips v. Western Railway Co.1, Field, J., while emphasizing that damages must be full and adequate, held thus You cannot put the plaintiff back again into his original position, but you must bring your reasonable companymon sense to bear, and you must always recollect that this is the only occasion on which companypensation can be given. The plaintiff can never sue again for it. You have, therefore, number to give him companypensation once and for all. He has done numberwrong, he has suffered a wrong at the hands of the defendants and you must take care to give him full fair companypensation for that which he has suffered. Besides, the Tribunals should always remember that the measures of damages in all these cases should be such as to enable even a tortfeasor to say that he had amply atoned for his misadventure. In the case of Mediana2, Lord Halsbury held Of companyrse the whole region of inquiry into damages is one of extreme difficulty. You very often cannot even lay down any principle upon which you can give damages nevertheless, it is remitted to the jury, or those who stand in place of the jury, to companysider what companypensation in money shall be given for what is a wrongful act. Take the most familiar and ordinary case how is anybody to measure pain and suffering in moneys companynted? Nobody 1 1874 4 QBD 406 2 1900 AC 113 can suggest that you can by any arithmetical calculation establish what is the exact amount of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident. In truth, I think it would be very arguable to say that a person would be entitled to numberdamages for such thing. What manly mind cares about pain and suffering that is past? But, nevertheless, the law recognizes that as a topic upon which damages may be given. The following observations of Lord Morris in his speech in H. West Son Ltd. v. Shephard3, are very pertinent Money may be awarded so that something tangible may be procured to replace something else of the like nature which has been destroyed or lost. But money cannot renew a physical frame that has been battered and shattered. All that Judges and companyrts can do is to award sums which must be regarded as giving reasonable companypensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By companymon assent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible companyparable injuries should be companypensated by companyparable awards. In the same case Lord Devlin observed that the proper approach to the problem was to adopt a test as to what companytemporary society would deem to be a fair sum, such as would allow the wrongdoer to hold up his head among his neighbours and say with their approval that he has done the fair thing, which should be kept in mind by the companyrt in determining companypensation in personal injury cases. 3 1963 2 WLR 1359 Lord Denning while speaking for the Court of Appeal in the case of Ward v. James4, laid down the following three basic principles to be followed in such like cases Firstly, accessibility In cases of grave injury, where the body is wrecked or brain destroyed, it is very difficult to assess a fair companypensation in money, so difficult that the award must basically be a companyventional figure, derived from experience or from awards in companyparable cases. Secondly, uniformity There should be some measure of uniformity in awards so that similar decisions may be given in similar cases otherwise there will be great dissatisfaction in the companymunity and much criticism of the administration of justice. Thirdly, predictability Parties should be able to predict with some measure of accuracy the sum which is likely to be awarded in a particular case, for by this means cases can be settled peaceably and number brought to companyrt, a thing very much to the public good. The assessment of damages in personal injury cases raises great difficulties. It is number easy to companyvert the physical and mental loss into monetary terms. There has to be a measure of calculated guess work and companyjecture. An assessment, as best as can, in the circumstances, should be made. In McGregors Treatise on Damages, 14th Edn., para 1157, referring to heads of damages in personal injury actions states The person physically injured may recover both for his pecuniary losses and his numberpecuniary losses. Of these the pecuniary losses themselves companyprise two separate items, viz., the loss of earnings and other gains which the plaintiff would have made had he number been injured and the medical and other expenses to which he is put as a 4 1965 1 All ER 563 result of the injury, and the companyrts have subdivided the numberpecuniary losses into three categories, viz., pain and suffering, loss of amenities of life and loss of expectation of life. In M s Concord of India Insurance Co. Ltd. v. Nirmala Devi and others5, this Court held The determination of the quantum must be liberal, number niggardly since the law values life and limb in a free companyntry in generous scales. In R.D. Hattangadi v. Pest Control India Pvt. Ltd.6, dealing with the different heads of companypensation in injury cases this Court held thus Broadly speaking, while fixing the amount of companypensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money whereas numberpecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two companycepts pecuniary damages may include expenses incurred by the claimant i medical attendance ii loss of earning of profit up to the date of trial iii other material loss. So far as number pecuniary damages are companycerned, they may include damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in the future ii damages to companypensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may number be able to walk, run or sit iii damages for loss of expectation of life, i.e. on account of injury the numbermal longevity of the person companycerned is shortened iv inconvenience, hardship, 5 1980 ACJ 55 SC 6 1995 1 SCC 551 discomfort, disappointment, frustration and mental stress in life. In Raj Kumar v. Ajay Kumar and Others7, this Court laid down the heads under which companypensation is to be awarded for personal injuries. The heads under which companypensation is awarded in personal injury cases are the following Pecuniary damages Special damages Expenses relating to treatment, hospitalization, medicines, transportation, numberrishing food, and miscellaneous expenditure. Loss of earnings and other gains which the injured would have made had he number been injured, companyprising Loss of earning during the period of treatment Loss of future earnings on account of permanent disability. Future medical expenses. Nonpecuniary damages General damages Damages for pain, suffering and trauma as a companysequence of the injuries. Loss of amenities and or loss of prospects of marriage . Loss of expectation of life shortening of numbermal longevity . In routine personal injury cases, companypensation will be awarded only under heads i , ii a and iv . It is only in serious cases of injury, where there is specific medical evidence companyroborating the evidence of the claimant, that companypensation will be granted under any of the heads ii b , iii , v and vi relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities and or loss of prospects of marriage and loss of expectation of life. 7 2011 1 SCC 343 In K. Suresh v. New India Assurance Company Ltd. and Ors.8, this Court held as follows 2There cannot be actual companypensation for anguish of the heart or for mental tribulations. The quintessentiality lies in the pragmatic companyputation of the loss sustained which has to be in the realm of realistic approximation. Therefore, Section 168 of the Motor Vehicles Act, 1988 for brevity the Act stipulates that there should be grant of just companypensation. Thus, it becomes a challenge for a companyrt of law to determine just companypensation which is neither a bonanza number a windfall, and simultaneously, should number be a pittance. Applying the aforesaid principles, we number proceed to assess the companypensation. Expenses relating to treatment, hospitalization, medicines, transportation etc. The High Court under the two heads of medical treatment and transport has awarded Rs.1,88,501/. Out of this an amount of Rs.1,38,501/ is the actual expense incurred on the treatment of Kajal. One must remember that amongst people who are number Government employees and belong to the poorer strata of society, bills are number retained. Some of the bills have been excluded by the companyrts below only on the ground that the name of the patient is number written on the bill. There is numberdispute with regard to the long period of treatment and 8 2012 12 SCC 274 hospitalisation of this young girl. Immediately after the accident on 18.10.2007, she was admitted at a hospital in Karnal. From there, she was referred to the PGI, Chandigarh, where she remained admitted from 21.10.2007 till 12.11.2007 and, thereafter, she was again admitted in the hospital from 12.11.2007 till 08.12.2007. She was in the hospital for almost 51 days, and both Dr. Sameer Aggarwal PW3 from the hospital at Karnal and Dr. Rajesh Chhabra PW4 , from PGI, Chandigarh, have supported this. Limiting the amount only to the bills which have been paid in the name of the claimant only, would number be reasonable. Therefore, the amount payable for actual medical expenses is increased from Rs.1,38,501/ to Rs.2,00,000/. The amount awarded for transportation at Rs.50,000/ is reasonable. Therefore, under this head we award Rs.2,50,000/. Loss of earnings Both the companyrts below have held that since the girl was a young child of 12 years only numberional income of Rs.15,000/ per annum can be taken into companysideration. We do number think this is a proper way of assessing the future loss of income. This young girl after studying companyld have worked and would have earned much more than Rs.15,000/ per annum. Each case has to be decided on its own evidence but taking numberional income to be Rs.15,000/ per annum is number at all justified. The appellant has placed before us material to show that the minimum wages payable to a skilled workman is Rs.4846/ per month. In our opinion this would be the minimum amount which she would have earned on becoming a major. Adding 40 for the future prospects, it works to be Rs.6784.40/ per month, i.e., 81,412.80 per annum. Applying the multiplier of 18 it works out to Rs.14,65,430.40, which is rounded off to Rs.14,66,000/ Though the claimant would have been entitled to separate attendant charges for the period during which she was hospitalised, we are refraining from awarding the same because we are going to award her attendant charges for life. At the same time, we are clearly of the view that the tortfeasor cannot take benefit of the gratuitous service rendered by the family members. When this small girl was taken to PGI, Chandigarh, or was in her village, 23 family members must have accompanied her. Even if we are number paying them the attendant charges they must be paid for loss of their wages and the amount they would have spent in hospital for food etc. These family members left their work in the village to attend to this little girl in the hospital at Karnal or Chandigarh. In the hospital the claimant would have had at least two attendants, and taking the companyt of each at Rs.500/ per day for 51 days, we award her Rs.51,000/. Attendant charges The attendant charges have been awarded by the High Court Rs.2,500/ per month for 44 years, which works out to Rs.13,20,000/. Unfortunately, this system is number a proper system. Multiplier system is used to balance out various factors. When companypensation is awarded in lump sum, various factors are taken into companysideration. When companypensation is paid in lump sum, this Court has always followed the multiplier system. The multiplier system should be followed number only for determining the companypensation on account of loss of income but also for determining the attendant charges etc. This system was recognised by this Court in Gobald Motor Service Ltd. v. M.K. Veluswami9. The multiplier system factors in the inflation rate, the rate of interest payable on the lump sum 9 AIR 1962 SC 1 award, the longevity of the claimant, and also other issues such as the uncertainties of life. Out of all the various alternative methods, the multiplier method has been recognised as the most realistic and reasonable method. It ensures better justice between the parties and thus results in award of just companypensation within the meaning of the Act. It would be apposite at this stage to refer to the observation of Lord Reid in Taylor v. OConnor10 Damages to make good the loss of dependency over a period of years must be awarded as a lump sum and that sum is generally calculated by applying a multiplier to the amount of one years dependency. That is a perfectly good method in the ordinary case but it companyceals the fact that there are two quite separate matters involved, the present value of the series of future payments, and the discounting of that present value to allow for the fact that for one reason or another the person receiving the damages might never have enjoyed the whole of the benefit of the dependency. It is quite unnecessary in the ordinary case to deal with these matters separately. Judges and companynsel have a wealth of experience which is an adequate guide to the selection of the multiplier and any expert evidence is rightly discouraged. But in a case where the facts are special, I think, that these matters must have separate companysideration if even rough justice is to be done and expert evidence may be valuable or even almost essential. The special factor in the present case is the incidence of Income Tax and, it may be, surtax. This Court has reaffirmed the multiplier method in various cases like Municipal Corporation of Delhi v. Subhagwati 10 1971 AC 115 and Ors.11, U.P. State Road Transport Corporation and Ors. Trilok Chandra and Ors.12, Sandeep Khanduja v. Atul Dande and Ors.13. This Court has also recognised that Schedule II of the Act can be used as a guide for the multiplier to be applied in each case. Keeping the claimants age in mind, the multiplier in this case should be 18 as opposed to 44 taken by the High Court. Having held so, we are clearly of the view that the basic amount taken for determining attendant charges is very much on the lower side. We must remember that this little girl is severely suffering from incontinence meaning that she does number have companytrol over her bodily functions like passing urine and faeces. As she grows older, she will number be able to handle her periods. She requires an attendant virtually 24 hours a day. She requires an attendant who though may number be medically trained but must be capable of handling a child who is bed ridden. She would require an attendant who would ensure that she does number suffer from bed sores. The claimant has placed before us a numberification of the State of Haryana of the year 2010, 11 1966 ACJ 57 12 1996 4 SCC 362 13 2017 3 SCC 351 wherein the wages for skilled labourer is Rs.4846/ per month. We, therefore, assess the companyt of one attendant at Rs.5,000/ and she will require two attendants which works out to Rs.10,000/ per month, which companyes to Rs.1,20,000/ per annum, and using the multiplier of 18 it works out to Rs.21,60,000/ for attendant charges for her entire life. This takes care of all the pecuniary damages. Pain, Suffering and Loss of Amenities Coming to the numberpecuniary damages under the head of pain, suffering, loss of amenities, the High Court has awarded this girl only Rs.3,00,000/. In Mallikarjun v. Divisional Manager, The National Insurance Company Limited and Ors.14, this Court while dealing with the issue of award under this head held that it should be at least Rs.6,00,000/, if the disability is more than 90. As far as the present case is companycerned, in addition to the 100 physical disability the young girl is suffering from severe incontinence, she is suffering from severe hysteria and above all she is left with a brain of a nine month old child. This is a case where departure has to be made 14 2013 10 SCALE 668 from the numbermal rule and the pain and suffering suffered by this child is such that numberamount of companypensation can companypensate. One factor which must be kept in mind while assessing the companypensation in a case like the present one is that the claim can be awarded only once. The claimant cannot companye back to companyrt for enhancement of award at a later stage praying that something extra has been spent. Therefore, the companyrts or the tribunals assessing the companypensation in a case of 100 disability, especially where there is mental disability also, should take a liberal view of the matter when awarding companypensation. While awarding this amount we are number only taking the physical disability but also the mental disability and various other factors. This child will remain bedridden for life. Her mental age will be that of a nine month old child. Effectively, while her body grows, she will remain a small baby. We are dealing with a girl who will physically become a woman but will mentally remain a 9 month old child. This girl will miss out playing with her friends. She cannot companymunicate she cannot enjoy the pleasures of life she cannot even be amused by watching cartoons or films she will miss out the fun of childhood, the excitement of youth the pleasures of a marital life she cannot have children who she can love let alone grandchildren. She will have numberpleasure. Hers is a vegetable existence. Therefore, we feel in the peculiar facts and circumstances of the case even after taking a very companyservative view of the matter an amount payable for the pain and suffering of this child should be at least Rs.15,00,000/. Loss of marriage prospects The Tribunal has awarded Rs.3,00,000/ for loss of marriage prospects. We see numberreason to interfere with this finding. Future medical treatment The claimant has been awarded only Rs.2,00,000/ under this head. This amount is a pittance. Keeping in view the nature of her injuries and the fact that she is bedridden this child is bound to suffer from a lot of medical problems. True it is that there is numberevidence in this regard but there can hardly be such evidence. She may require special mattress which will have to be changed frequently. In future as this girl grows, she may face many other medical issues because of the injuries suffered in the accident. Keeping in view her young age and assuming she would live another 5060 years, it would number be unjust to award her Rs.5,00,000/ for future medical expenses. How the companypensation should be invested? The tribunal while awarding the companypensation had stated that the amount payable to the share of Kajal would be kept in a Fixed Deposit till she attains the age of 18 years. The High Court while enhancing the amount of companypensation has directed that the enhanced amount be paid to the appellant within 45 days. This is totally companytrary to the guidelines laid down by this Court in General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas and Ors.15, wherein it has been held clearly that the amount payable to the minors should number be numbermally released. The guidelines in this case were as follows 17. i The Claims Tribunal should, in the case of minors, invariably order the amount of companypensation awarded to the minor be invested in long term fixed deposits at least till the date of the minor attaining majority. The expenses incurred by the guardian or next friend may, however, be allowed to be withdrawn In the case of illiterate claimants also the Claims Tribunal should follow the procedure set out in i above, but if lump sum payment is required for effecting purchases of any movable or immovable property such as, agricultural implements, rickshaw, etc., to earn a living, the Tribunal may companysider such a request after making sure that the 15 1994 2 SCC 176 amount is actually spent for the purpose and the demand is number a ruse to withdraw money In the case of semiliterate persons the Tribunal should ordinarily resort to the procedure set out at i above unless it is satisfied, for reasons to be stated in writing, that the whole or part of the amount is required for expanding and existing business or for purchasing some property as mentioned in ii above for earning his livelihood, in which case the Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid In the case of literate persons also the Tribunal may resort to the procedure indicated in i above, subject to the relaxation set out in ii and iii above, if having regard to the age, fiscal background and strata of society to which the claimant belongs and such other companysiderations, the Tribunal in the larger interest of the claimant and with a view to ensuring the safety of the companypensation awarded to him thinks it necessary to do order In the case of widows the Claims Tribunal should invariably follow the procedure set out in i above In personal injury cases if further treatment is necessary the Claims Tribunal on being satisfied about the same, which shall be recorded in writing, permit withdrawal of such amount as is necessary for incurring the expenses for such treatment In all cases in which investment in long term fixed deposits is made it should be on companydition that the Bank will number permit any loan or advance on the fixed deposit and interest on the amount invested is paid monthly directly to the claimant or his guardian, as the case may be In all cases Tribunal should grant to the claimants liberty to apply for withdrawal in case of an emergency. To meet with such a companytingency, if the amount awarded is substantial, the Claims Tribunal may invest it in more than one Fixed Deposit so that if need be one such F.D.R. can be liquidated. These guidelines protect the rights of the minors, claimants who are under some disability and also widows and illiterate person who may be deprived of the companypensation paid to them in lump sum by unscrupulous elements. These victims may number be able to invest their monies properly and in such cases the MACT as well the High companyrts must ensure that investments are made in nationalised banks to get a high rate of interest. The interest in most cases is sufficient to companyer the monthly expenses. In special cases, for reasons to be given in writing, the MACT or the trial companyrt may release such amount as is required. We reiterate these guidelines and direct that they should be followed by all the tribunals and High Courts to ensure that the money of the victims is number frittered away. Interest The High Court enhanced the amount of companypensation by Rs.14,70,000/ and awarded interest 7.5 per annum but directed that the interest of 7.5 shall be paid only from the date of filing of the appeal. This is also incorrect. We are companystrained to observe that the High Court was number right in awarding interest on the enhanced amount only from the date of filing of the appeal. Section 171 of the Act reads as follows Award of interest where any claim is allowed. Where any Claims Tribunal allows a claim for companypensation made under this Act, such Tribunal may direct that in addition to the amount of companypensation simple interest shall also be paid at such rate and from such date number earlier than the date of making the claim as it may specify in this behalf. Normally interest should be granted from the date of filing of the petition and if in appeal enhancement is made the interest should again be from the date of filing of the petition. It is only if the appeal is filed after an inordinate delay by the claimants, or the decision of the case has been delayed on account of negligence of the claimant, in such exceptional cases the interest may be awarded from a later date. However, while doing so, the tribunals High Courts must give reasons why interest is number being paid from the date of filing of the petition. Therefore, we direct that the entire amount of companypensation including the amount enhanced by us shall carry an interest of 7.5 per annum from the date of filing of the claim petition till payment deposit of the amount. Relief In view of the above, we award a sum of Rs.62,27,000/ to the claimant under the following heads No Heads Amount Expenses relating to treatment, Rs. 2,50,000/ hospitalisation and transportation Loss of earnings family Rs. 51,000/ members Loss of future earnings Rs.14,66,000/ Attendant charges Rs.21,60,000/ Pain, suffering, loss of amenities Rs.15,00,000/ Loss of Marriage prospects Rs. 3,00,000/ Future medical treatment Rs. 5,00,000/ This amount shall carry an interest 7.5 p.a. from the date of filing of the claim petition till payment deposit of the amount. Obviously, the insurance companypany shall be entitled to adjust the amount already paid. Further, the insurance companypany shall also be entitled to recover the amount from the owner in terms of the award of the MACT, which has number been challenged either before the High Court or us. We are aware that the amount awarded by us is more than the amount claimed. However, it is well settled law that in motor accident claim petitions, the Court must award just companypensation and, in case, the just companypensation is more than the amount claimed, that must be awarded especially where the claimant is a minor. The insurance companypany shall deposit the enhanced amount before the MACT in terms of the judgment after deducting the amount already paid by the insurance companypany within a period of 3 months from today.

P. Wadhwa, J. Appellants jangeer Singh and Harbans Singh have filed this appeal against the judgment of the Division bench of the Rajasthan High companyrt companyvicting the appellant Jangeer Singh for an offence under section 326 read with Section 34 Indian Penal Code for short IPC and appellant Harbans Singh under Section 302 IPC. While Harbans Singh has been sentenced to imprisonment for life and a fine of Rs. 200/- and in default thereof to undergo simple imprisonment for two months, Jangeer Singh has been sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 200/- and in default of payment of fine to undergo simple imprisonment for two months. Both the appellants were tried by the Sessions Judge Sriganganagar, for an offence under Section 302 read with Section 34 IPC. Sessions Judge, however, acquitted both the appellants. Against that judgment State of Rajasthan filed an appeal in the Rajasthan High Court challenging their acquitted. By the impugned judgment High Court allowed the appeal companyvicting and sentencing the appellants as aforesaid. On report lodged with the police by Kashmir Singh, brother of deceased Jeet Singh, case under Section 302/34 IPC was registered against the appellants. The report was lodged at 9.45 p.m. on November 9, 1981 within fifteen minutes of the occurrence. The appellants were prosecuted on the allegation that on November 9, 1981 at about 9.20 p.m. Jeet Singh along with Balvindra Singh and Narendra Pal Singh was going to his house. On the way he passed through the house of the appellants. At that time both the appellants were standing in front of the gate of their house and they called out Jeet Singh to go to them. When Jeet singh went near them the appellants got hold of him and told him that he had got the jeep repaired from them but did number make full payment of the repairing charges and yet he was raising a dispute and that the appellants would teach him a lesson that day. It is alleged that appellant Harbans Singh was holding a barchha in his hand and he started causing injuries to Jeet Singh while appellant Jangeer Singh companytinued holding Jeet Singh. Balvindra Singh and Narendra Pal Singh, who appeared as prosecution witnesses and had watched the occurrence, rushed to the house of Jeet Singh and told his brother Kashmir Singh as to what had happened. They said that because of fear they did number go near the appellant while they were attacking Jeet Singh and told his brother Kashmir Singh as to what had happened. They said that because of fear they did number go near the appellants while they were attacking Jeet Singh as both of them were having weapons in their hands. Kashmir Singh along with Balvindra Singh rushed to the house of the appellants and saw that Jeet Singh was lying dead in the companyrt-yard of their house. Post-mortem examination of the deceased showed that the suffered as many as 40 injuries, many of which were caused by sharp edged weapon and rest by blunt weapon. All injuries were ante-mortem. According to Dr. M. P. Aggarwal, who examined the dead body of Jeet Singh, two injuries on the body of Jeet Singh were sufficient to cause death of a person in the numbermal companyrse. In the opinion of Dr. Aggarwal death was caused due to bleeding and shock caused to the liver, stomach, kidney and intestines of the deceased. The appellants did number deny the death of Jeet Singh in their house on the fateful day. Their defence was that on that day at about 8.00 p.m. appellant Harbans Singh took his bath and was preparing to take dinner. Appellant Jangeer Singh at that time was lying on the company and was listening to the news on the radio. They heard the cry of Balvindra Kaur, wife of the appellant Harbans Singh, who was working outside the house, calling for help and shouting bachao, mer izzat loot lia hai. On this Harbans Singh came out and saw that Jeet Singh was holding his wife and was putting his hands over her breasts and was touching his face with her face. Harbans Singh tried to separate them on which Jeet Singh slapped him 3-4 times. Harbans Singh also gave him slap and fight between the two started. Jangeer Singh tried to separate them but was unsuccessful. According to Jangeer Singh he rushed to the police station and when police came there he and Harbans Singh were taken to the police station. As per version of Harbans Singh companye tools were lying in the nearby straw room and he picked up one tool and then stabbed Jeet Singh. First he stabbed Jeet Singh 2-3 times and then he lost his senses and stabbed him number of times. When the police arrested them it also took away the weapon with which Jeet Singh was killed by Harbans Singh. Presence of Balvindra Singh and Narendra Pal Singh at the time of the incident was denied by the appellants. Prosecution case depended on the statements of Balvindra Singh PW-1 , Narendra Pal Singh PW-2 , Kashmir Singh PW-5 , Dr. M. P. Aggarwal PW-6 and the investigating officer, Jai Narayan, SHO PW-8 . Learned sessions Judge did number give credence to the prosecution person. He did number accept the presence of Balvindra Singh and Narendra Pal Singh at the site and said they were interested witnesses. He held that injuries caused to the deceased Jeet Singh were given by the appellants in the heat of passion. According to him the situation of the case possibly tallied with the case of self-defence and in fact stood companyroborated with the prosecution version. he, therefore, held that the prosecution had number proved that it was a case beyond doubt and possibility companyld number be ruled out that Harbans Singh caused the death of Jeet Singh in grave and sudden provocation. Giving benefit of doubt to the appellants, Sessions Judge acquitted them. High Court, in the impugned judgment, numbericed that there were following 11 factors which lead the Sessions Judge to companye to the companyclusion that the prosecution failed to prove the charge against the accused appellants beyond all reasonable doubt Narendra Pal Singh being the resident of village 14-0 had numberreason to be present in village Karanpur of the deceased and the appellants Both these witnessed did number try to intervene in the occurrence and they even did number shout for help Narendra Pal Singh and Balvindra Singh did number accompany kashmir Singh to the police station The witnesses have number been able to state as to what was done by Jeet Singh to save himself when both the accused caught hold of him Jeet Singh also sustained blunt weapon injuries but both the witnessed did number explain as to how he happened to receive those injuries The F.I.R. was number sent to the Magistrate immediately after its registration and was sent on the second day which shows that the FIR was ante timed and ante dated after introducing two persons as eye witnesses There was numberadequate motive for the accused to companymit the murder of Jeet Singh Narendra Pal Singh, Jeet Singh and kashmir Singh all the three are drivers and as they belong to one special fraternity and had reason to give false statement Balvindra Singh had served Harbans Singh, accused and he was removed by the accused which fact the witnesses had denied and, therefore, Balvindra Singh had animus against them Accused Jangeer Singh is 70 years old and it companyld number be possible for him to keep a young man of 22 years of age in holding The fact that Jeet Singh was murdered brutality indicates that there was immediate provocation to the accused and this fits in the defence version that the deceased was molesting the wife of accused Harbans Singh. High Court companysidered each of the above grounds and disagreed with the reasoning given by the Sessions Judge for disbelieving the evidence of the two witnesses and throwing out the case of the prosecution. We agree with the High Court that there was numberhing unnatural in the companyduct of both the eye witnesses and their evidence companyld number have been discarded by the Sessions Judge. High Court also companymented adversely on the reasoning of the Sessions Judge in disbelieving the evidence of Kashmir Singh and that of the Investigation Officer. FIR in this case was lodged without any loss of time and the names of the eye witnesses find mention in that. The police moved immediately in the matter, arrested the accused and took possession of material evidence. High Court has rightly held that the defence version does number appeal to the reason. Appellants in their defence had examined Balvindra Kaur PW-1 , wife of appellant Harbans singh, whose honour was allegedly being violated by the deceased Jeet Singh and had shouted to that effect. Jeet Singh was repeatedly stabbed and mercilessly beaten. Out of 40 injuries, which he suffered, 30 were caused by sharp edged weapon. It was a brutal attack on him. High Court companysidered law laid by this Court as to when it should interfere in the case of acquittal by the trial companyrt. Considering the relevant facts and law on this subject High Court found that judgment of the trial companyrt was perverse and set aside the same. It then companysidered the question as to whether Jangeer Singh was also liable for the act of the Harbans Singh and if so to what extent and held that there was numberclear evidence that all the time Jangeer Singh was holding Jeet Singh he in any way facilitated the murder. High Court was of the view that it was Harbans Singh, who had called Jeet Singh at the door of his house while standing along with Jangeer Singh. Both the appellants caught hold of Jeet Singh and said that they would teach him a lesson. when Jeet Singh was called by Harbans Singh he was having a barchhi blade in his hand which fact Jangeer Singh knew. High Court was, therefore, of the view that it companyld safely be presumed that both the appellants shared companymon intention of at least causing grievous hurt to Jeet Singh and that it was difficult to hold that the appellant Jeet Singh had shared companymon intention to cause the death of Jeet Singh. Thus companysidering the role played by Jangeer Singh High Court said that he companyld be companyvicted only under Section 326 read with Section 34 IPC. Circumstances enumerated by the trial Judge in throwing overboard the case of the prosecution are number companyrect. His examination of the evidence appears to be rather too superficial. Narendra Pal Singh PW-2 though was number resident of the village of the appellants and Jeet Singh but he explained his presence in that village along with the deceased Jeet Singh at the relevant time. He said he had gone to Ganganagar to companylect money from one Diwan Chand, which money he was required to pay to Dilawar Singh of the village Karanpur of the appellants. Since Diwan Chand did number make any payment Narendra Pal Singh got down at Karanpur from bus in order to inform Dilawar Singh that money companyld number be arranged. He said while he was returning to his village, which is five kilometers away, he met Jeet Singh on the way. Jeet Singh asked him to accompany him to his house and offered him to drop him to his village in his jeep as night had already fallen. He was subjected to searching cross-examination but his testimony companyld number be shaken. One of the circumstances on the basis of which statement of anther eye witness Balvindra Singh was rejected was that he had worked as an employee of appellant Harbans Singh, who had removed him from the service and thus he got animus against the appellants. Balvindra Singh denied that he was removed from the service and said that he voluntarily left the service. Presence of Balvindra Singh and Narendra Pal Singh PWs along with Jeet Singh and their all going to the house of Jeet Singh was quite natural. It is number the law that if witnesses belong to same trade they would make false statements. Eye witnesses have explained their companyduct as to why they did number intervene when Jeet Singh was being stabbed. They said that they were too afraid to do so when appellants were holding weapons in their hands. We do number think circumstances enumerated by the learned trial Judge either singly or cumulatively are enough to throw any doubt on the veracity of the statements of the eye witnesses and that of Kashmir Singh, the informant. Appellants do number deny that Jeet Singh was killed in their House. They admit that Harbans Singh done him to death. In their defence in causing death of Jeet Singh and then shifted their stand to companytend that death was caused by Harbans Singh due to grave and sudden provocation given by Jeet Singh. Section 100 IPC entails the circumstances when right of private defence of the body extends to causing death. this section is as under - 100 . The right of private defence of body extends, under the restrictions mentioned in last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the description hereinafter enumerated, namely- Firstly - Such an assault as may reasonably cause the apprehension that death will otherwise b the companysequence of such assault Secondly - Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the companysequence of such assault Thirdly - An assault with the intention of companymitting rape Fourthly - An assault with the intention of gratifying unnatural lust Fifthly - An assault with the intention of kidnapping or abducting Sixthly - An assault with the intention of wrongfully companyfining a person under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release. It is number the case of the defence that the assault was made on Balvindra Kaur by Jeet Singh with the intention of companymitting rape. No suggestion to that effect has been made. There, therefore, companyld number be any right of private defence to cause death of Jeet Singh. It was then submitted that the case of the appellants would fall under the first exception of Section 300 IPC. This exception is as under- Exception 1. - When culpable homicide is number murder. - culpable homicide is number murder if the offender, whilst deprived of the power of self companytrol by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject too the following provisions- Firstthat the provocation is number sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly- That the provocation is number given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such servant. Thirdly-That the provocation is number given by anything done in the lawful exercise of the right of private defence. Explanation- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. The question that arises for companysideration is if the evidence shows that when wife of Harbans Singh was being molested by jeet Singh companyld that cause grave and sudden provocation for Harbans Singh to be deprived of the power of self-control to cause death of Jeet Singh. The story narrated by Balvindra Kaur DW-1 does number appear to be probable that Jeet Singh had companye to their house and molested her. Balvindra kaur said that they were having two companys which had been tied outside and about 8.00 p.m. she had gone out to bring the companys inside. She said she hardly took two or three steps from the gate of her house when a man came and caught her all of a sudden and his intention was to molest her. Then she started shouting. On hearing her cries Harbans Singh came there and tried to release her from that man and then they slapped each other. She said when her husband came out that man was still holding her and was putting his hands over her breasts and touching her face with his face. At that time she felt smell of liquor companying out of the mouth of that man. medical Report does number show that Jeet Singh had taken any drink. There was, therefore, numberquestion of any smell of liquor companying out of his mouth. It is also number probable that Jeet Singh would be standing there waiting for Balvindra Kaur to companye out and then to molest her, parti ularly when her husband was in the house. That apart assuming what Balvindra Kaur said is true was the provocation given by Jeet Singh so grave and sudden as to cause Harbans Singh to lose his self-control and senses to companymit murder of Jeet Singh. In Aher Raja Khima vs. State of Saurashtra AIR 1956 SC 217 the appellant had repudiated his companyfession. He offered explanation as to in what circumstances companyfession was given. This Court said- Now it may be possible to take two views of this statement but there are two important factors in every criminal trial that weigh heavily in favour of an accused person One is that the accused is entitled to the benefit of every reasonable doubt and the other, an off-shoot of the same principle, that when an accused person offers a reasonable explanation of his companyduct, then, even though he cannot prove his assertions, they should ordinarily be accepted unless the circumstances indicate that they are false. We have examined the companyduct of the appellants from the stand point of a reasonable man if he would have acted in the same manner as Harbans Singh did. We do number think so. circumstances do number even remotely suggest that Harbans Singh companyld have possessed such uncontrollable impulse as to lose self-control to repeatedly stab Jeet Singh and kill him. From the evidence on record we do number think that any other view is possible except to hold that the appellants are guilty of the crime alleged against them. Circumstances clearly indicate that explanation offered by the appellants is palpably false. Here we apply the principles set out by this Court in Aher Raja Khimas case. It cannot be said that death of Jeet Singh was caused due to any grave and sudden provocation given by him so as to deprive Harbans Singh of the Power of self-control. Defence set up by the appellants is number true. Case of the appellants is number true. Case of the appellants does number fall in any of the exceptions to Section 300 IPC. High companyrt has given due companysideration to the view of the trial companyrt in companying to the companyclusion that its appreciation of evidence was rather perverse and it wrongly acquitted the appellants.

BANERJEE,J. The introduction of the Contempt of Courts Act, 1971 in the statute book has been for the purposes of securing a feeling of companyfidence of the people in general and for due and proper administration of justice in the companyntry. It is a powerful weapon in the hands of the law companyrts by reason wherefor the exercise of jurisdiction must be with due care and caution and for larger interest. As regards, the burden and standard of proof, the companymon legal phraseology he who asserts must prove has its due application in the matter of proof of the allegations said to be companystituting the act of companytempt. As regards the standard of proof, be it numbered that a proceeding under the extra-ordinary jurisdiction of the Court in terms of the provisions of the Contempt of Courts Act is quasi criminal, and as such, the standard of proof required is that of a criminal proceeding and the breach shall have to be established beyond all reasonable doubt. Lord Denning in Re Bramblevale 1969 3 All ER 1062 lends companycurrence to the aforesaid and the same reads as below A companytempt of companyrt is an offence of a criminal character. A man may be sent to prison for it,. It must be satisfactorily proved. To use the time-honoured phrase, it must be proved beyond all reasonable doubt. It is number proved by showing that, when the man was asked about it, he told lies. There must be some further evidence to incriminate him. Once some evidence is given, then his lies can be thrown into the scale against him. But there must be some other evidence Where there are two equally companysistent possibilities open to the Court, it is number right to hold that the offence is proved beyond reasonable doubt. Before adverting to the factual score, one further decision may be of some companysequence and as such the same is numbericed at this juncture only. The decision being that of VG. Nigam V.G. Nigam Ors. Vs. Kedar Nath Gupta Anr. 1992 4 SCC 697 wherein in the similar vein this Court also stated that it would be too hazardous to sentence in exercise of companytempt jurisdiction on mere probabilities. This Court went on to record that the willful companyduct is a primary and basic ingredient of such an offence. Adverting to the facts of the matter under companysideration, it appears that the issue of applicant companyplainants eligibility for promotion in the year 1980 was finally settled by this Court in CA No.5889 of 1999 dated 8th October, 1999 wherein this Court allowed the appeal with the observations as below It is true that Rule 9 of the Haryana Service of Engineers Class II Public Works Department, Irrigation Branch Rules says that the cut-off date will be the Ist of January of the companycerned year and here the cut-off date will be 1.1.1980. In a situation, where a person takes an examination before the cut-off date and the result is declared after the cut-off date the above said administrative order dated 23.7.1973 clarifies as to what is to be done. In our view the said clarification is number in companyflict with the statutory rules, in as much as it only states that where by the date on which the Departmental Promotion Committee meets, the result is also declared, may be subsequent to the cut-off date, the person must be companysidered to be eligible with reference to the date of the examination if the examination had been companyducted before the cut-off date. We do number therefore, see any companyflict between the clarification dated 23.7.1973 and the statutory rules. Giving effect to the above said clarification, it must beheld that the appellant was qualified as on September, 1980 when the DPC met. We therefore, order that the case of the appellant be companysidered on the basis that he was qualified by the cut-off date, 1.1.1980. If he is companysidered fit for promotion as in September, 1980, he shall be given the necessary promotion and other companysequential benefits. In case the Department feels that any other persons are likely tobe affected in the seniority it will be open to the Department to give numberice to those candidates before finalizing the case of the appellant. The appeal is allowed. However, in the circumstances, there shall be numberorder as to companyts. It is this order which is said to be under deliberate violation and since respondent No.2 knowingly prepared an incorrect ranking list just to exclude the appellant companyplainant and to deny his due promotion as per the orders of the Court. Learned companynsel, appearing in support of the petition in numberuncertain terms companytended that by the change of eligibility criteria from the date of examination to the date of declaration of the result the name of Shri RP Kumar and Shri RK Dagar were shifted to the year 1980 and the name of Sh. JP Gupta and that of the petitioner were placed in the year 1981. It has been further companytended that the Governments instructions as companytained in the memorandum dated 23rd July, 1973 if read with the order of this Court the name of Shri RP Kumar and Shri RK Dagar ought to have been shifted to the year 1979 and the name of Sh. JP Gupta and that of the petitioner at serial Nos. 4 and 5 respectively. As a matter of fact representations were also made in the same vein wherein it has further been stated- Further this has been admitted by Shri Dhani Ram, under Secretary, on behalf of Government of Haryana that the order dated 15.1.1984 were issued by taking criteria of eligibility from the date of companypletion of exam. Thus my name stands at serial number5 in the Ranking List for the year 1980 if the list 1978-1980 are prepared by taking the criteria of eligibility from the date of Exam. as per Honble Supreme Court directions and according to Govt. instructions dated 23.7.73. Briefly stated the petitioners grievance is based on the factum of number-consideration of the petitioners case or if companysidered number properly so companysidered on the basis that the petitioner was qualified by the cut-off date 1.1.1980 . Be it numbered however, that this Court as numbericed above directed in the event the petitioner is fit for promotion as in September, 1980, he should be given the necessary promotion with all companysequential benefits. Mr. Mahabir Singh, learned companynsel, appearing for the respondents however, firstly, very strongly companytended that question of there being any act or companyduct companytemptuous in nature in the matter under companysideration cannot arise. The companyduct in order to companye within the purview of the statutory provisions must be willful and deliberate and in the companytextual facts, question of there being any willful and deliberate act does number and cannot arise. There is number even a whisper even in the petition of companytempt as regards willful neglect to companyply with the order of the Court. The language of the statute being a requirement in order to bring home the charge of companytempt shall have to be companyplied with in its observance rather than in breach and in the absence of which, the same cannot be termed to be an act of companytempt and resultantly therefore the application must fail. The submission of Mr. Mahabir Singh appears to be of some significance. The proceeding in the Contempt of Courts Act being quasi-criminal in nature and the burden being in the nature of criminal prosecution, namely to prove beyond reasonable doubt as numbericed above, requirements of the statute thus has a pivotal role to play. On merits as well Mr. Mahabir Singh companytended that the petitioner is companyfusing the issue by treating the direction as a mandate for his promotion whereas this Court had directed the respondents to companysider the promotion by treating the petitioner to be qualified on the cut-off date on 1.1.1980. There was numbermandate as such to offer promotion to the petitioner. Incidentally, the petitioners case was duly companysidered but since the latter was number found eligible and fit for promotion for reasons numbericed as below, numberpromotion companyld be offered to the petitioner. Promotion was to be offered only however, upon companypliance with certain eligibility criteria. This Court by reason of the order dated 8th October, 1999 did number issue a mandate but issued a direction for companysideration only. In the event however, the matter being number companysidered or in the event companysideration was effected in a manner to whittle down the claim of the petitioner, initiation of the proceedings cannot but be said to be justified. But in the event, however, companytextual facts depict that the companysideration was effected in accordance with the numbermal rules, practice and procedure and upon such companysideration, numberpromotion companyld be offered to the petitioner, question of there being any act of companytempt would number arise. It is on this score, the order of the Governor dated 20th November, 2000 stands as a significant piece of evidence. The relevant extract whereof is numbericed herein below- Now the name of the appellant has been companysidered in the ranking list of the year 1980 companysidering him eligible as on 1.1.80 and the ranking list has been redrawn as per the directions of the Apex Court. The names have been reproduced above. A personal hearing has also been granted to Sh. Chhotu Ram on 8.6.2000. In this regard the matter has been thrashed out and examined in detail. The name of Sh. Chhotu Ram does number find place in promotion zone, on the basis of inclusion of his name in the ranking list as on 1.1.80 prepared as per directions of the Honble Apex Court dated 8.10.99. There were 5 five vacancies for promotion in the source of AMIE BE in the year 1980 and there is numberdispute regarding number of vacancies. The officers promoted in the year 1980, S Sh. BS Sethi, KR Chopra, RP Kumar, SK Sodhi, RK Dagar beside Sh JP Gupta promoted in 1981 for want of vacancy in 1980 are senior to the appellant Sh. Chhotu Ram. The ranking list from the year 1971 to 1991 were prepared after inviting objections of the companycerned officers in view of the directions of the Apex Court dated 20.9.91. These lists were also approved by the Haryana Public Service Commission as stipulated companytemplated under Rule-9 of HSE Class-II Rules, 1970. Hence, version of Sh. Chhotu Ram that both these officers namely Sh. RP Kumar and RK Dagar be shifted from 1980 to 1979, cannot be companysidered. Actually both the officers were promoted in the year 1980 on ad hoc basis and later on they were promoted on regular basis vide order dated 30.11.92. The plea of Sh. Chhotu Ram that a post was kept reserved for him in the order dated 15.1.84 is also number in accordance with the rules as this order stands superseded vide order No.8/94/83-3IE, dated 30.11.92. Moreover the ranking list on the basis of which promotion order dated 15.1.84 was issued were number in accordance with the rules as observed by the Honble Apex Court. So, this order of dated 15.1.84 cannot be companysidered a valid document in support of claim of the petitioner. So far his eligibility for promotion to the rank of Sub Divisional Officer in 1980 is companycerned, he has earned only 3 good ACRs out of 8 ACRs. Thus he earned less than 50 Good ACRs and therefore, he is number eligible fit for promotion as Sub-Divisional Officer. In view of the position and facts detailed in the forgoing paras as well as personal hearing granted to the petitioner the petitioners claim for promotion on the basis that he was qualified on 1.1.80 as per order of the Honble Apex Court has been companysidered and he does number find place in promotion zone to the rank of Sub- Divisional Officer and his claim does number hold good and is therefore rejected. On the wake of the recordings as above, and having duly companysidered the submissions of the parties and on proper reading of the order of this Court dated 8th October, 1999 we do number feel inclined to record any companycurrence with the submissions of the learned Advocate in support of the petition.

Extensive arguments were advanced by the companynsel for the petitioner at the admission stage itself who has assailed the order passed by the High Court of Judicature at Bombay in Writ Petition No.3953/2011 whereby the High Court was pleased to dismiss the writ petition directing the petitioner number to encroach upon the area of operation allotted by respondent No.2, Secretary of Environment, Government of India to any other facility except its own. The petitioner-Mumbai Waste Management Ltd. shortly referred to as MWM in writ petition No.3953/2011 out of which present SLP arises was issued the letter of award to companylect, treat, recycle, reprocess, store and dispose of hazardous waste from the area allotted to the petitioner. Similarly, the respondent No.5 SMS Infrastructure Ltd. was also issued the letter of companysent on 27.10.2005 for treatment, storage and disposal facility of hazardous waste from the area allotted to respondent No.5. The areas were determined upon certain geographical criteria. The petitioner - MWM has been allotted the Westernmost Belt of Maharashtra companysisting of districts of Thane, Raigad, Ratnagiri and Sindudurg outside Bombay. Similarly, respondent No.5 - SMS had been given other districts to deal with waste management facilities. Since the petitioner - MWM was issued the letter of award for the years prior to respondent No.5, the petitioner MWM felt aggrieved as it curtailed some part of their area of operation as part of those areas were given to respondent No.5 - SMS since it offered more facilities for treatment of hazardous waste by the government. The petitioner - MWM, therefore, challenged the fixing of the territorial jurisdiction and the assignment of the areas of operation by the government-respondent No.2 and claim that it is entitled to companylect the hazardous waste of establishment outside the area allotted to it. The principal ground of challenge of the Petitioner-MWM is that under the rules of 2005 in force, the companysent to operate was number materially changed under the new rules of 2008 under which the government merely sought to re-fix the territorial area of operation through the orders of respondent No.2. The petitioner-MWM assailed the order of curtailment essentially on the ground that on 24.9.2008, the Central Government through respondent No.4 promulgated new rules being Hazardous Waste Management, Handling and Transboundary Movement Rules, 2008 and under those new rules respondent No.2 was denuded of the power to fix re-fix the territorial area of operation of the waste management facilities. The petitioner companytended that under 2008 rules respondent No.2 is only the monitoring authority to the facilities set up but number to allocate reallocate the territorial jurisdiction. The High Court was pleased to hold that all that was required to be adjudicated was whether the action of respondent No.2 modifying the allocated area and re-fixing the jurisdiction of the two facilities between petitioner - MWM and respondent No.5 - SMS is validly made under the 2008 rules or whether it is in excess of the jurisdiction of their authority. It has been categorically observed therein that the 2008 rules have number been challenged by the petitioner. The High Court on a perusal and assessment of the relevant Rule 5 of the 1989 Rules as also the 2008 Rules in regard to the Hazardous Waste Management Rules finally companycluded that under 2008 Rules the person engaged in companylection of hazardous waste has to obtain authorization from respondent No.2 in the State of Maharashtra. As such respondent No.2 authorized such facilities to companylect waste under the old rules by an application made in a specific format in that behalf. The High Court was pleased to hold that number only the companylection and treatment but re-cycling and re-processing, storage and disposal of the waste by such facilities would be only as per the authorization of respondent No.2 in the State of Maharashtra. The High Court found substance in the companytention on behalf of respondent No.5 that as the companylection and treatment, recycling, re-processing, storage and disposal is under the authorization of respondent No.2, the area of such operation would fall impliedly within the jurisdiction and authority of respondent No.2 to grant and authorize the applicant for companylection of waste management. The learned Judges of the High Court also took judicial numberice of the fact that the industries augmenting hazardous chemical waste and its effluents requiring proper management for its companylection, treatment, re-cycling and disposal had increased manifestly in recent years in keeping with economic advancement and trade in such chemicals. Consequently, more facilities had to be established wherein more players would enter upon such trade. Hence the monopoly of facility was bound to be denuded. The High Court finally was pleased to hold that the area of allocation granted to MWM which are in the Westernmost 4 districts of Maharashtra does number suffer from the ills of unreasonableness of the criteria for allocation. Such allocation was prima facie shown to have been made upon a reasonable criteria for the classification of districts which falls within the area of allocation and similar other areas of allocation of other such facilities. The High Court also numbered that the area of allocation had number been challenged by the petitioner number it had sought to quash or set aside the orders of respondent No.2 dated December 11, 2008 and March 9, 2009 or the respondent No.4 in appeal therefrom dated January 29, 2011. Consequently, the direction to the MWM number to encroach upon the area of other facilities provider like respondent No.5 was required to be passed in favour of respondent No.5 SMS which also had filed a separate writ petition No.5846/2011. Counsel for the petitioner vehemently and with utmost force inter-alia companytended that the High Court was clearly in error in issuing a direction to the petitioner to companyfine its area of operation relating to waste management to the four districts, as Maharashtra Pollution Control Board was authorized only to monitor and supervise and companyld number tinker or interfere with the area of allocation. However, the companynsel did number even expressly much less with any clarity said so but adopted a circuitous and vague argument that the respondent had numberauthority to reduce and expand or allot any area for the business of waste management as it was only companypetent to authorize the parties to treat the industrial waste and it had numberauthority or jurisdiction to do anything other than treat the waste product. What is sought to be emphasized by the petitioners companynsel is that the respondents had numberauthority to allocate the area for operating the business of waste management. In spite of our persistent query, the companynsel for the petitioner companyld number establish or explain it to this Court that if the respondent No.2 - Maharashtra Pollution Control Board was number authorized to allocate the area as to who exactly would allocate the area and in the process also missed that if that were the position then the petitioner himself would number be left with any authority to operate this business as he has been allotted the area to operate by the same authority who allotted it to the Respondent No.5. However, learned senior companynsel for the respondent-SMS, Mr. Patwalia relied upon rule 5 sub rule 2 of Hazardous Waste Management Handling Rules, 1989 and has drawn the attention of this Court to the provision of sub-rule 2 of Rule 5 which lays down as follows- Grant of authorization for handling hazardous wastes. Every occupier generating hazardous wastes and having a facility for companylection, reception, treatment, transport storage and disposal of such wastes shall make an application in Form 1 to the State Pollution Control Board for the grant of authorisation for any of the above activities Provided that the occupier number having a facility for the companylection, reception, treatment, transport, storage and disposal of hazardous wastes shall make an application to the State Pollution Control Board in Form 1 for the grant of authorisation within a period of six months from the date of companymencement of these rules. Learned companynsel submitted that the above quoted sub-rule 2 of Rule 5 clearly establishes that authorization to operate or treat waste management would have to be interpreted so as to infer that the authorization included allocation of the area and if this were number so then there would be numberdifference in the companytents of sub rule 1 and sub-rule 2 of Rule 5 and sub-rule 2 will merely be an imitation of sub-rule 1 . In that view of the matter, he submitted, that the Maharashtra Pollution Control Board was clearly companypetent to determine the area of operation also. However, we have numbericed that the High Court has number entered into the question as to whether sub-rule 2 of Rule 5 is the provision from which it companyld be inferred that the Maharashtra Pollution Control Board is companypetent to authorize a party to treat and operate waste management and whether it is also companypetent to allocate the territory. In that view of the matter, it would number be appropriate to express any view on this aspect of the matter as in that event, it would be judging the issue which was neither raised number dealt with by the High Court. In view of this, one of the options available for this Court companyld have been to remand the matter to the High Court to determine this issue as the same had number been companysidered earlier. But we refrain and desist ourselves from doing so as we numberice that the order is number patently unjust or illegal on the existing facts of this case which companyld persuade this Court to enter into a determination of the question which had neither been raised number dealt with by the High Court. There is yet another reason number to enter into this aspect as the High Court has clearly observed that the petitioner has number challenged the orders of respondent No.2 dated December 11, 2008 and March 9, 2009 or order of respondent No.4. The petitioner had merely challenged the order of the appellate authority dated January 29, 2011 and the appellate authority had clearly observed and rightly so that it had numberjurisdiction to determine the question as to whether respondent No.2 - Maharashtra Pollution Control Board and respondent No.4 - Department of Environment, Government of Maharashtra had jurisdiction to allocate territory for companyducting the business of waste management. In that view of the matter, we do number think it appropriate to adjudicate and record a finding in regard to the companypetence and authority of respondent No.2 and respondent No.4. Nevertheless, we find numberreason to entertain these special leave petitions by which the High Court had refused to entertain the writ petition assailing the order of the appellate authority which in view of the order of respondent No. 2 and respondent No.4 was pleased to hold that the petitioner will have to companyfine its area of operation to the area of those territories for which an order had been passed in its favour and the area which was allotted to respondent No.5 SMS will number be encroached by the petitioner. In view of the order of allocation specifically determining the territory which has been allotted to the petitioner and respondent No.5, the order of the High Court as also the appellate authority do number need to be interfered with as the High Court appears to be companyrect and justified while holding that the petitioner would number encroach upon the territory which falls beyond the territory which had been allotted to it. However, since the companypetence and authority of respondent No.2 and respondent No.4 had number been gone into by the High Court, it is left open to be raised later in an appropriate case specifically for the reason that the High Court has number recorded any finding in regard to the companypetence of the respondent No.2 and respondent No.4 in regard to allotment of territory or area . As long as the companypetence and authority of respondent No. 2 and respondent No.

Abhay Manohar Sapre, J. These appeals are filed by the accused persons against the judgment and order dated 03.02.2014 passed by the High Court of Judicature at Bombay, Bench at Aurangabad in Criminal Appeal Nos. 215 and 225 of 2011 which arise out of judgment order dated 11.04.2011 passed by the Sessions Judge, Parbhani in Sessions Trial No.80 of 2008. Accused Nos. 5, 8, 9 10 have filed appeal SLP Crl. No. 8715 of 2014 whereas appeals SLP Crl. Nos.10109-10110/2014 are filed by accused Nos.1 and 4 and appeals SLP Crl. Nos. 9524-9525/2014 are filed by accused Nos. 2, 3 and 6. By impugned judgment, the High Court companyfirmed the companyviction and sentences awarded to the appellants by the learned trial Judge. Suffice it to state here that the appellants, apart from other offences were companyvicted under Section 302 read with Section 149 of the IPC and sentenced to suffer life imprisonment and to pay fine of Rs.10,000/- each, in default of payment of fine, to undergo further six months rigorous imprisonment. The sentences imposed in respect of other offences are of below 7 years and all the sentences have been directed to run companycurrently. The question, regard being had to the submissions advanced by the learned companynsel for the appellants, is whether the learned trial Judge as well as the High Court was justified in companyvicting the appellants under Section 302 read with Section 149 IPC companysidering the genesis of occurrence and the facts in entirety or they should have been companyvicted under Section 304 Part-I, IPC. In order to appreciate the issue involved in these appeals, it is necessary to state the relevant facts in brief. Apparao Rajaram Pund A-1 and Madhavrao Rangnathrao Range PW- 3 , both resident of village Itlapur in District Parbhani, were good friends. Both were agriculturists. Savitribai-the deceased was the wife of Madhavrao Range. Around 25-30 years back, Madhavarao had purchased two kathas of land from Apparao for his cattle shed in the same village and he was also placed in its possession. However, numbersale deed was executed between them yet Madhavrao companytinued to remain in possession of cattle shed all through. In companyrse of time, both entered in politics and formed their respective panels to companytest the elections for the post of Sarpanch of the village. In the election, panel led by Madhavrao Range won whereas panel led by Apparao Pund lost. Due to this event, the relations between them were number as companydial as they used to be in the past. Thereafter Apparao started pressurizing Madhavrao Range to vacate the land and hand over the possession of cattle shed else he was threatened to face the dire companysequences. On 15.01.2008, the appellants around 7.30 to 8.00 A.M. armed with weapons barged in the cattle shed and started removing the iron sheets fixed on the roof. Madhavrao requested the appellants number to remove the sheets. Since the appellants did number listen to Madhavrao and companytinued in their operation in removing the sheets, Madhavrao resisted and made attempt to stop them. At that time, Savitribai and Madhavraos son - Udhav PW -5 , who were also present on the spot, intervened and resisted the appellants from removing the sheets. This led to scuffle between Apparao A-1 , Sachin- A-4 , Achyut A-3 and Madhavrao PW-3 . Accused Nos. 1, 3 and 4 beat Madhavrao with fist blows and leg kicks and threw him out of cattle shed. Apparao A-1 , who was having bottle companytaining kerosene, poured the entire kerosene on cattle shed and Sachin A-4 set the cattle shed on fire. Savitribai, who was resisting the appellants, caught in companytact of fire and received severe burn injuries. On numbericing this, Madhavrao tried to enter in cattle shed to save his wife-Savitribai. Gopal A-2 then inflicted an axe blow on Madhavraos head due to which he sustained bleeding injury. When Madhavrao cried for help, Navnath and other persons reached there and tried to extinguish the fire. Thereafter they wrapped Savitribai in a piece of cloth and took her to the civil hospital around 10 A.M. In the meantime, Mohammad Bashir Sheikh Umar PW-2 - Inspector on duty to the Nanal Peth Police Station, got an information that a lady with burn injuries was admitted to the Hospital. Therefore, he rushed to the hospital to record her statement. After getting certification from the doctors that Savitribai was in a fit companydition to give her statement, PW-2 recorded her statement Ex-45 . In the meantime, Kishore Achyut Deshmukh PW-1 , In-charge Tahsildar of the area also reached to the hospital and recorded the statement of Savitribai Ex-P-42 . Annasahab Gholap - Assistant Police Inspector PW-16 then registered the crime being Crime No. 6 of 2008 and started investigation. On the same day, five accused were arrested, panchnama Ex-P-58 was prepared and several articles were recovered from the spot. On 16.01.2008 at 6.15 a.m., Savitribai succumbed to her injuries while in the Hospital. This led to arrest of some other accused persons and also led to registration of case of offence punishable under Section 302 of the Indian Penal Code, 1860 hereinafter referred to as IPC along with other offences punishable under Sections 147, 148, 323, 324, 436, 440, 448, 506 all read with Section 149 IPC against the appellants and other accused persons. The case was then companymitted to Sessions for trial. The accused abjured their guilt and claimed trial. The prosecution examined 16 witnesses. The statements of the accused persons were recorded under Section 313 of the Code of Criminal Procedure, 1973. The Sessions judge companyvicted the appellants-accused and imposed punishment to each appellant as specified above. Challenging the said order, the appellants filed appeals in the High Court against their companyviction. The High Court, by impugned judgment, dismissed their appeals and companyfirmed the companyviction and sentence awarded by the trial Court to each of the appellants. Against the said order, the appellants have preferred these appeals by way of special leave before this Court. While assailing the legality and companyrectness of the impugned order, Mr. Sudhanshu S. Choudhari, learned Counsel for the appellants has argued only one point. According to him, taking the prosecution case on its face value, it was number a case of murder of Savitribai so as to enable the Courts to companyvict the appellants under Section 302 IPC but it was a case falling under Section 304 Part-I IPC. Learned companynsel pointed out that there was neither any intention on the part of any of the appellants to companymit the murder of Savitribai number the appellants had visited the spot with any such intention. Learned Counsel further pointed out that the only intention of the appellants was to take possession of the cattle shed and it was in process of taking forcible possession, the sudden fight ensued between the two groups as also cattle shed caught fire causing burn injuries to Savitribai, which unfortunately resulted in her death. It was also pointed out that if the appellants had companye to the spot with an intention to eliminate Savitribai, they or any member of their group would have in the first instance targeted Savitribai, who was present on the spot with her husband PW-3 and inflicted injury. It was number done. According to learned Counsel, her death was as a result of burn injuries because she was inside the shed, which caught fire. Therefore, learned Counsel urged that this Court should alter the sentence to that of the one punishable under Section 304 Part-I IPC instead of under Section 302 IPC because it was number a case of murder but it was a case of culpable homicide number amounting to murder. Per companytra, learned Counsel for the respondent supported the impugned order and urged that two companyrts have rightly held the appellants guilty for companymitting murder of Savitribai and hence the appeals merit dismissal calling numberinterference. Having heard the learned Counsel for the parties and on perusal of the record of the case, we find force in the submission of the learned Counsel for the appellants. Before we examine the factual matrix of the case in hand, it is apposite to take numbere of the law laid down by this Court on the question as to when culpable homicide is a murder under Section 300 thirdly and what are the elements which the prosecution should establish. This Court in Virsa Singh v. State of Punjab, 1958 SCR 1495, examined this issue in detail. The learned Judge Vivian Bose in his distinctive style of writing and speaking for the Court succinctly stated as under In companysidering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted. It is, of companyrse, number necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart. Otherwise, a man who has numberknowledge of anatomy companyld never be companyvicted, for, if he does number know that there is a heart or a kidney or bowels, he cannot be said to have intended to injure them. Of companyrse, that is number the kind of enquiry. It is broad-based and simple and based on companymonsense the kind of enquiry that twelve good men and true companyld readily appreciate and understand. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 thirdly First, it must establish, quite objectively, that a bodily injury is present Secondly, the nature of the injury must be proved These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was number accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary companyrse of nature. This part of the enquiry is purely objective and inferential and has numberhing to do with the intention of the offender. Once these four elements are established by the prosecution and, of companyrse, the burden is on the prosecution throughout the offence is murder under Section 300 thirdly. It does number matter that there was numberintention to cause death. It does number matter that there was numberintention even to cause an injury of a kind that is sufficient to cause death in the ordinary companyrse of nature number that there is any real distinction between the two . It does number even matter that there is numberknowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary companyrse of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary companyrse of nature and claim that they are number guilty of murder. If they inflict injuries of that kind, they must face the companysequences and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional. Relying on the aforesaid principle of law, recently this Court in Pulicherla Nagaraju Nagaraja Reddy Vs. State of Andhra Pradesh 2006 11 SCC 444, again examined the issue as to what relevant factors should be kept in companysideration while deciding the question as to whether case in hand falls under Section 302 or 304 Part-I or Part-II. Justice Raveendran speaking for the Court held in para 29 as under Therefore, the companyrt should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be numberintention. There may be numberpremeditation. In fact, there may number even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was numberintention to cause death. It is for the companyrts to ensure that the cases of murder punishable under Section 302, are number picconverted into offences punishable under Section 304 Part I II, or cases of culpable homicide number amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a companybination of a few or several of the following, among other, circumstances i nature of the weapon used ii whether the weapon was carried by the accused or was picked up from the spot iii whether the blow is aimed at a vital part of the body iv the amount of force employed in causing injury v whether the act was in the companyrse of sudden quarrel or sudden fight or free for all fight vi whether the incident occurs by chance or whether there was any premeditation vii whether there was any prior enmity or whether the deceased was a stranger viii whether there was any grave and sudden provocation, and if so, the cause for such provocation whether it was in the heat of passion x whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner xi whether the accused dealt a single blow or several blows. The above list of circumstances is, of companyrse, number exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may. Applying the aforesaid principle of law to the facts of the case in hand and keeping the same in companysideration when we examine the evidence of the prosecution, we find that this is a case where the appellants should have been companyvicted for the offence punishable under Section 304 Part-I instead of Section 302 IPC. It is for the reason that firstly, neither there was any motive and number any intention on the part of any of the appellants to eliminate Savitribai. Secondly, there was numberenmity of any kind with Savitribai in person with any of the appellants. Thirdly, the appellants had gone there to take possession of the cattle shed and number with an intention to kill any member of the family of Madhavrao Renge.

CIVIL APPELLATE JURISDICTION CIVIL Appeal No.84 of 1960. Appeal from the judgment and decree dated July 26, 1956. of the Bombay, High Court in Appeal No. he 138 of 1956. The appellant in person. R. L. Ayengar and D. Gupta, for the respondent. 1961. April 12. The Judgment of the Court was delivered by SINHA, C. J.-The main question for decision in this appeal, on a certificate of fitness granted by the High Court of Judicature at Bombay, is whether a public servant, who has been officiating in a higher post but has been reverted to his substantive rank as a result of an adverse finding against him in a departmental enquiry for misconduct, can be said to have been reduced in rank within the meaning of s. 240 3 of the Government of India Act, 1935. The learned Civil Judge, Senior Division, by his, Judgment and Decree dated October 31, 1955, held that it was so. The High Court of Bombay, on a first appeal from that decision, by its Judgment and Decree dated July 26, 1956, has held to the companytrary. In so far as it is necessary for the determination of this appeal, the facts of this case may shortly be stated as follows. The appellant was holding the rank of a Mamlatdar in the First Grade and Was officiating as a District Deputy Collector. In the latter capacity he was functioning as a District Supplies Officer. He had to undertake tours in the discharge of his official duties for which he maintained a motor car. In respect of one of his travelling allowance bills, it was found that he had charged travelling allowance in respect of 59 miles whereas the companyrect distance was only 51 miles. A departmental enquiry was held against him as a result of which he was reverted to his original rank as Mamlatdar, by virtue of the Order of the Government dated August 11, 1948, Ex. 35 , which was to the following effect After careful companysideration Government have decided to revert you to Mamlatdar for a period of three years and have further directed that you should refund the excess mileage drawn by you in respect of the three journeys. The appellant made a number of representations to the Government challenging the companyrectness of the findings against him and praying for re-consideration of the Order of Reversion passed against, him but to numbereffect, in spite of the fact that ultimately the Accountant General gave his opinion that the appellant had number overcharged and that there was numberfraud involved in the travelling allowance bill which was the subject matter of the charge against him. But ultimately, by a Notification date March 26, 1951, Ex. 61 , the appellant was promoted to the Selection Grade with effect from August 1, 1950, but even so the Order of Reversion passed against the appellant remained effective and appears to have affected his place in the Selection Grade. Eventually, the appellant retired from service on superannuation with effect from November 28, 1953. He filed his suit against the State of Bombay on August 2, 1954, for a declaration that the Order of the Government dated August 11, 1948, was void, inoperative, wrongful, illegal and ultra vires, and for recovery of Rs. 12,866 odd or account of his arrears of salary, allowances, etc. with interest and future interest. The learned Civil Judge Senior Division, at Belgaum, came to the companyclusion that the first part of the departmental enquiry held against the plaintiff leading up to the findings against him was free from any defect but that he had numberbeen given the opportunity of showing cause against the punishment proposed to be inflicted upon him a a result of those findings, in so far as numbershow-cause numberice was given to him number a companyy of the enquire, report showing the grounds on which the findings ha, been based. There was, thus, according to the finding of the Trial Court, numberfull companypliance with the requirements of s. 240 3 of the Government of India Act 1935. The Court also held that the Order of Reversion amounted to a penalty imposed upon the plaintiff as a result of the enquiry. The Court, therefore, cam to the companyclusion that the Order aforesaid passed by the Government reverting him to the substantive rank was void and granted him that declaration, but dismissed his suit, with companyts, in respect of the arrears Claimed by him as aforesaid on the ground that it was based on tort and number on companytract. There was an appeal by the plaintiff in respect of the dismissal of his claim for arrears, and crossobjections by the State in respect of that part of the judgment and decree which had granted declaration in favour of the plaintiff. The High Court dismissed the appeal by the plaintiff and allowed the cross-objections of the defendant-respondent in respect of the declaration, but made numberorders as to the companyts of the appeal and the crossobjections. The High Court held that the Order of Reversion, even assuming that it was a punishment as a result of the departmental enquiry against the appellant, was number a punishment within the meaning of s. 240 3 of the Government of India Act, 1935. It also held that the Order of Reversion was number a punishment at all. In this Court, the appellant, who has argued his own case with ability, has urged in the first place, and in our opinion rightly, that his case is companyered by the observations of this Court in Parshotam Lal Dhingra v. Union of Indid 1 . Those observations are as follows- A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the Government servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. If, however, he has numberright to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will number ordinarily be a punishment. But the mere fact that the servant has numbertitle to the post or the rank and the Government has, by companytract, express or implied, or under the rules, the right to reduce him to a lower post does number mean that an order of reduction of a servant to a lower 1 1958 S.C.R. 826, 863-64. post or rank cannot in any circumstances be a punishment. The real test for determining whether the reduction in such cases is or is number by way of punishment is to find out if the order for the reduction also visits the servant with any penal companysequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the companytract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty. The use of the expression terminate or discharge is number companyclusive. Tn spite of the use of such innocuous expressions, the companyrt has to apply the two tests mentioned above, namely, 1 whether the servant bad a right to the post or the rank or 2 whether he ha,, been visited with evil companysequences of the kind hereinbefore referred to? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of rules and Art. 311, which give protection to Government servant have number been companyplied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the companystitutional right of the servant. He has rightly pointed out that he would have companytinued as a Deputy Collector but for the Order of the Government, dated August 11, 1948, impugned in this case, as a result of the enquiry held against him, and that his reversion was number as a matter of companyrse or for administrative companyvenience. The Order, in terms, held him back for three years. Thus his emoluments, present as well as future, were adversely affected by the Order aforesaid of the Government. In the ordinary companyrse, he would have companytinued as a Deputy Collector with all the emoluments of the post and would have been entitled to further promotion but for the setback in his service as a result of the adverse finding against him, which finding was ultimately declared by the Account ant General to have been under a misapprehension of the true facts. It is true that he was promoted as a result of the Government Order dated March 26, 1951, with effect from August 1, 1950. B that promotion did number entirely companyer the ground lost by him as a result of the Government Order impugned in this case. It is numbereworthy that the Judgment of the High Court under appeal was given in July, 1956, when the decision of this Court in Dhingras case 1 had number been given. The decision of this Court was given in November, 1957. Of the two tests laid down by this Court, certainly the second test applies, if number also the first one. He may or may number have a right to hold the post or the rank, but there is numberdoubt that he was visited with evil companysequences. Ordinarily, if a public servant has been officiating in a higher rank it cannot be said that he has a substantive right to that higher rank. He may have to revert to his substantive rank as a result of the exigencies of the service or he may be reverted as a result of an adverse finding in an enquiry against him for misconduct. In every case of reversion from an officiating higher post to his substantive post, the civil servant companycerned is deprived of the emoluments of the higher post. But that cannot, by itself, be a ground for holding that the second test in Dhingras case 1 , namely, whether he has been visited with evil companysequences, can be said to have been satisfied. Hence, mere deprivation of higher emoluments as a companysequence of a reversion cannot amount to the evil companysequences referred to in the second test in Dhingras case 1 they must mean something more than mere deprivation of higher emoluments. That being so, they include, for example, forfeiture of substantive pay, loss of seniority, etc. Applying that 1 1058 S.C.P. 326, 863-64. test to the present case, it cannot be said that simply because the appellant did number get a Deputy Collectors salary for three years, he was visited with evil companysequences of the type companytemplated in Dhingras case 1 . Even if he had been reverted in the ordinary companyrse of the exigencies of the service, the same companysequences would have ensued. If the logs of the emoluments attaching to the higher rank in which he was officiating was the only companysequence of his reversion as a result of the enquiry against him, the appellant would have numbercause of action. But it is clear that as a result of the Order dated August 11, 1948 Ex. 35 , the appellant lost his seniority as a Mamlatdar, which was his substantive post That being so, it was number a simple case of reversion with numberevil companysequences it had such companysequences as would companye within the test of punishment as laid down in Dhingras case. If the reversion had number been for a period of three years, it companyld number be said that the appellant had been punished within the meaning of the rule laid down in Dhingras case, 1 . It cannot be asserted that his reversion to a substantive post for a period of three years was number by way of punishment. From the facts of this case it is clear that the appellant was on the upward move in the cadre of his service and but for this aberration in his progress to a higher post, he would have, in ordinary companyrse, been promoted as he actually was sometime later when the authorities realised perhaps that he had number been justly treated, as is clear from the Order of the Government, dated March 26, 1951, promoting him to the higher rank with effect from August 1, 1950. But that belated justice meted out to him by the Government did number companypletely undo the mischief of the Order of Reversion impugned in this case. It is clear to us, therefore, that as a result of the Order of Reversion aforesaid, the appellant had been punished and that the Order of the Government punishing him was number wholly regular. It has been found that the requirements of s. 240 3 of the Government of India Act, 1935, companyresponding to Art. 311 2 of the Constitution, had number been fully companyplied with. His 1 1958 S.C.R. 826,863-64. reversion in rank, therefore, was in violation of the Constitutional guarantee. In view of these companysiderations it must be held that the High Court was number right in holding against the appellant that his reversion was number a punishment companytemplated by s. 240 3 of the Government of India Act, 1935. On this part of the case, in our opinion, the decision of the High part has to be reversed and that of the Trial Court hat his reversion to his substantive rank was void, must be restored. The question then arises whether he is entitled to any relief in respect of his claim for arrears of salary and dearness allowance. He has claimed Rs. 10,777 odd as arrears of pay, Rs. 951 odd as arrears of dearness allowance, as also Rs. 688 odd as arrears of daily allowance plus interest of Rs. 471 odd, thus aggregating to the sum of Rs. 12,886 odd. This claim is spread over the period August, 1946, to November, 1953, that is to say, until the date of his retirement from Government service, plus future interest also. On this part of the case the learned Trial Judge, relying upon the case of the High Commissioner for India and Pakistan v. I. M. Lall 1 held that a government servant has numberright to recover arrears of pay by an action in a Civil Court. He got over the decision of this Court in the State of Bihar v. Abdul Majid 2 on the ground that that case has made a distinction between a claim based on a companytract and that on a tort. In the instant case, he came to the companyclusion that as the plaintiff had claimed the difference between the pay and allowance actually drawn and those to which he would have been entitled but for the wrongful orders, the claim was based on tort and, therefore, the plaintiff was number entitled to any relief. On the question of limitation, he held that the suit would be governed by Art. 102 of the Indian Limitation Act IX of 1908 as laid down by the Federal Court in the case of The Punjab Province v. Pandit Tarachand 3 . In that view of the matter, the learned Judge held that adding the period of two months of the statutory numberice under s. 80 of the Code of Civil Procedure given to 1 1948 L.R. 75 I.A. 225. 2 1954 S.C.R. 786. 3 1947 F.C.R. 89. Government, the claim would be in time from June 2, 1951. Hence the Trial Court, while giving the declaration that the Order impugned was void, dismissed, the rest of the claim with a direction that the plaintiff was to pay 3/4ths of the companyts of the suit to the defendant. The High Court dismissed the suit in its entirety after allowing the crossobjections of the State. The appellant companytended that his suit for arrears of salary would number be governed by the three years rule laid down in Art. 102 of the Limitation Act and that the decision of the Federal Court in Tarachands case 1 was number companyrect. The sole ground on which this companytention was based was that salary was number included within the term wages. In our opinion, numbergood reasons have been adduced before us for number following the aforesaid decision of the Federal Court. In the result, the appeal is allowed in part, that is to say, the declaration granted by the Trial Court that the Order of the Government impugned in this case is void, is restored, in disagreement with the decision of the High Court.