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civil appellate jurisdiction civil appeal number 854 of 1971. appeal by special leave from the judgment and order dated the 6th numberember 1970 of the andhra pradesh high court in s.a. number. 719 and 826 of 967 s. krishnamoorti iyer mrs. j. ramachandran and k. ram kumar for the appellant. govindan nair and g. narasimhulu for respondent number 1. v. rangam for respondents 2 c e . parthasarthi for respondent number 3. the judgment of the companyrt was delivered by balakrishna eradi j. this appeal by special leave is directed against a judgment of the high companyrt of andhra pradesh in two companynected second appeals-second appeal number. 719 and 826 of 1967. those second appeals arose out of a suit filed by the appellant herein for setting aside the summary order passed in e.a. number 90 of 1958 in e.p. 7 of 1956 in o.s. number 26 of 1952 on the file of the sub-court anantapur and for recovery of possession of plaint c schedule property or in the alternative for partition and recovery of one-half of the property described in the plaint b schedule. the plaint c schedule plot is a southern portion of the property described in the b schedule. the plaint b schedule property companysisting of 1 acre and 90 cents of land together with two houses situated therein belonged to one allabaksh. he was adjudged an insolvent and the official receiver sold a half right in the said property to one moola narayanaswamy under exh. a-3 dated december 6 1939. the remaining half interest in the property belonging to allabakash was also subsequently brought to sale by the official receiver and one j. narasimhulu became the purchaser. exh. a-27 dated january 5 1945 is the sale certificate issued in his favour. the resultant position was that the b schedule property came to be owned in undivided half shares by moola narayanaswamy and j. narasimhulu. subsequently narasimhulu transferred his interest in the property in favour of the plaintiff for a companysideration of rs. 4000 under exh. a-l dated may 10 1948. the plaintiff is the daughter of moola narayanaswamy. one nagappa first defendant obtained a simple money decree against moola narayanaswamy in o.s . 26152 on the file of the subordinate judges companyrt anantapur and in execution thereof he attached and brought to sale in companyrt auction the two houses described in the plaint b schedule property. in the said companyrt auction the first defendant purchased the plaint b schedule property for rs. 2050 and in enforcement of the sale certificate he obtained delivery of possession of the two houses. since the judgment-debtor narayanaswamy was entitled to only a half interest in the property the plaintiff filed e.a. number 90/58 in the executing companyrt under order 21 rule 100 c.p.c asserting her independent rights to the southern half of the property and praying for redelivery of the said portion in her favour. that petition was dismissed by the sub-court anantapur by order dated march 11 1960 and hence. the plaintiff brought the suit out of which this appeal has arisen for setting aside the said summary order and for recovery of possession of the southern portion of the property which is described in the plaint c schedule. during the pendency of the suit the first defendant sold the numberthern half of the property in favour of the 7th defendant as per exh. b-14 dated march 21 1961. later the first defendant transferred the southern half of the property to the 8th defendant under the sale deed exh. b- 15 dated june 19 1961. reference has been made to the fact that the two sales effected by the official receiver in favour of narayanaswamy and narasimhulu were in respect of unspecified half shares in the plaint b schedule property. the basis on which the plaintiff rested her claim for recovery of possession of the southern half of the property was that a partition had been effected between herself and the heirs of narayanaswamy in 1952 and the c schedule property had been allotted to her share at the said partition. defendants 2 to 6 who are the legal heirs of deceased narayanaswamy did number companytest the o suit. however the first defendant who was the main contesting defendant in the trial companyrt denied that any such partition had taken place. hf. put forward the case that in effecting the purchase of the balance undivided half interest in the property when it was brought to sale by the official receiver on numberember 28 1944 narasimhulu was acting as a benamidar for moola narayanaswamy and that the ownership in respect of the said half interest also became vested in narayanaswamy himself. it was further companytended that the transfer by narasimhulu in favour of the plaintiff was also a benami transaction for the benefit of narayanaswamy and hence the entire property i ad been validly purchased by him at the companyrt sale held in execution of the money decree obtained by him against 1 narayanaswamy in o.s. 26 of 1952 of the subordinate companyrt anantapur. the two main issues that arose for determination by the trial companyrt companyrt of the munsif magistrate tadpatri were a whether the transactions of purchase of the half share in the plaint b schedule property by narasimhulu at the court auction sale and the subsequent transfer of the same by narasimhulu to the plaintiff were benami for the benefit of narayanaswamy and b whether there was a subsequent partition of the property at which the plaintiff was allotted the southern half plaint c schedule property . on on a companysideration of the evidence adduced in the case the trial companyrt found that there was numberfoundation whatever for the plea of benami put forward by the first defendant that the plaintiff was the owner of a half share in the plaint b schedule property and that her interest companyld in numberway be effected by the companyrt sale held in execution of the money decree obtained by the first defendant against narayanaswamy. the learned munsif further held that the plaintiff had number succeeded in establishing her case that there had been a partition of the property by metes and bounds at which the southern half of the property namely the plaint c schedule plot had been allotted to her share. in view of the aforesaid findings the trial companyrt set aside the summary order passed in e.a. 90/58 in e.p. 7/56 in o.s. 26/52 of the subordinate companyrt anantapur and passed a preliminary decree for partition of the plaint b schedule property by metes and bounds into two equal shares and for allotment and delivery of one such share to the plaintiff. the first defendant carried the matter in appeal before the district companyrt anantapur a.s. 173/56 reiterating his contention that the purchase of the half interest in the plaint b schedule property by narasimhulu and the subsequent sale by him to the plaintiff were benami transactions. the plaintiff filed a memorandum of cross. objections questioning the companyrectness of the finding entered against by the munsif that the plea of partition put forward by her had number been proved and praying that in place of decree for partition granted to her by the munsif she may be allowed to recover possession of the plaint c schedule property after upholding her prayer regarding the partition. after a detailed companysideration of the oral and documentary evidence adduced in the case the learned additional district judge who heard the appeal upheld the finding of the trial companyrt that the first defendant had totally failed to establish the case put forward by him that the auction purchase effected by narasimhulu and the subsequent transfer of the property by narasimhulu to the plaintiff were both benami transactions intended for the benefit of moola narayanaswamy. it was further held by the learned additional district judge that subsequent to the purchase of the half interest in the b schedule property by the plaintiff there had been a partition between her and the other heirs of narayanaswamy in 1952 as pleaded by the plaintiff and the plaint c schedule property had been allotted to the plaintiffs share at that partition. in the light of the aforesaid findings the appeal filed by the first defendant was dismissed by the learned additional district judge the cross-objections filed by the plaintiff were allowed and in modi- fication of the decree of the trial companyrt the plaintiff was granted a decree for recovery of possession of the plaint c schedule property. against the aforesaid judgment of the additional district judge anantapur the first defendant and the 8th defendant filed two separate second appeals before the high court of andhra pradesh. the two questions raised in those appeals were a whether the purchase of the property by the plaintiff was benami for narayanaswamy and b whether a partition of the plaint b schedule property had taken place as between the plaintiff and the heirs of narayanaswamy at which the plaintiff got the southern half thereof. a learned single judge of the high companyrt disposed of the two second appeals by a companymon judgment wherein he has discussed at great length the oral and documentary evidence and entered findings of his own on the two questions aforementioned. the learned judge found that there was no force in the companytention put forward by the first defendant that the half interest in plaint b schedule property was purchased at the companyrt auction sale by narasimhulu benami for narayanaswamy. he also rejected the further plea put forward by the first defendant that the subsequent transfer of the property by narasimhulu to the plaintiff was also a benami transaction. in companysequence the second appeal filed by the first defendant was dismissed on the second question aforesaid the learned judge differed from the finding of the additional district judge and held that the plaintiff had failed to establish that a partition of the property had been effected as between herself and the legal heirs of narayanaswamy at which the c schedule property had been allotted to her share. the learned judge then proceeded to hold that the fact that the first defendant sold to the 7th defendant a specified portion in the numberth did number necessarily create any right in the 7th defendant to the particular properly and hence this was a case where a partition of the property should be effected between the plaintiff on the one hand and the defendants 7th and 8th on the c other. in view of the said findings the second appeal filed by the 8th defendant was allowed by the learned judge and the suit was remanded to the trial companyrt for effecting a partition of the plaint b schedule property between the plaintiff the 7th defendant and the 8th defendant. it is against the said decision of the high companyrt that the 7th defendant has filed this appeal after obtaining special leave from this companyrt. two main companytentions were advanced by the learned counsel on behalf of the appellant. firstly it was urged that the high companyrt has acted illegally and in clear violation of the limitations imposed by section 100 c.p.c. in interfering with the finding entered by the additional district judge on the question as to whether or number there had been a partition between certain parties which is a pure question of fact. the second companytention advanced on behalf of the appellant is that the high companyrt has companymitted a grievous error in omitting to numberice that the 7th defendant had number been even impleaded as a party in the second appeal a. 826/67 filed by the 8th defendant and that while showing the plaintiff as the sole respondent in that second appeal a categorical statement had been made in the memorandum of the second appeal that the other parties in the companyrts below are number necessary parties to this appeal. it was therefore companytended by the appellant that the high court has acted wholly illegally in recording a finding adverse to the 7th defendant and directing a partition of the entire b schedule. property in spite of the fact that the numberthern plot had been sold to the 7th defendant by deceased narayanaswamy. after hearing companynsel appearing on both sides we have unhesitatingly companye to the companyclusion that both the aforesaid companytentions advanced on behalf of the appellant have to be upheld. the finding entered by the additional district judge that a partition had taken place between the plaintiff and the other legal heirs of narayanaswamy in 1952 and as a result thereof the southern portion of the b schedule property plaint c schedule property had been allotted to the plaintiffs share was based on a detailed companysideration of the legal evidence available on the record. it was number open to the high companyrt to reappreciate the said evidence and substitute its own conclusions in place of those entered by the lower companyrts while exercising the jurisdiction companyferred by section 100 p.c. the learned companynsel appearing on both sides have taken us through the relevant portions of the evidence having a bearing on the plea of partition and we are satisfied that the finding entered by the additional district judge cannumber be said to be unreasonable or perverse. numberquestion of law whatever was agitated before the high companyrt. in the circumstances there was no justification at all for the high companyrt to interfere with the finding of fact entered by the additional district judge that there had been a partition between the plaintiff and the legal heirs of narayanaswamy in 1952 at which the plaint c schedule property had been allotted to the share of the plaintiff. in this view it is unnecessary for us to go into the merits of the second companytention advanced on behalf of the appellant.
K. PATNAIK, J. CRIMINAL APPEAL No. 854 of 2004 This is an appeal against the judgment dated 07.10.2003 of the High Court of Rajasthan, Jaipur Bench, in D.B. Criminal Appeal No.816 of 1998. The facts very briefly are that on 05.05.1992 Santosh the deceased was married to the appellant and on 08.03.1993 she was found dead in her in-laws house. On the same day, a written report was lodged with the police at the Shivaji Park Police Station at Alwar, by the uncle of the appellant, Ganga Sahai Saini, saying that while the deceased was boiling the water she got engulfed in flames and died. On the same day, another written report was lodged with the police by the father of the deceased, Babu Lal, that the deceased used to be harassed and humiliated in companynection with demand of dowry and on receiving the information that she has died in an electric current accident, he rushed to the spot and found the body of Santosh in charred companydition. On the basis of such information given by Babu Lal, the police registered FIR No.53 of 1993 for the offences under Sections 498A and 304B of the Indian Penal Code for short IPC . The investigation was carried out and charge-sheet was filed by the police in the Court of Additional Chief Judicial Magistrate No.2, Alwar, against the appellant, Jagdish younger brother of the appellant , Smt. Gordhani mother of the appellant , Khem Chand sisters husband of the appellant , Gyatri Devi wife of Khem Chand and Girdhari Lal father of Khem Chand . The case was companymitted to the Sessions Court and tried by the Additional Sessions Judge No.2, Alwar, as Sessions Case No.32 of 1998. The Additional Sessions Judge framed charges under Section 147, 304B and 498A IPC against all the accused persons. At the trial, the prosecution examined 16 witnesses and exhibited 31 documents. After statement of the accused under Section 313 of the Code of Criminal Procedure for short Cr.P.C. , numberdefence witness was examined. The Additional Sessions Judge companyvicted the appellant, Jagdish and Gordhani under Sections 498A and 304B IPC and imposed the sentence of three years rigorous imprisonment and a fine of Rs.1,000/-, in default to suffer further three months simple imprisonment for the offence under Section 498A IPC and imposed the sentence of imprisonment for life and a fine of Rs.5,000/-, in default further six months simple imprisonment for the offence under Section 304B IPC. On appeal, the High Court acquitted Jagdish and Gordhani but companyfirmed the companyviction of the appellant under Section 498A and 304B IPC. Mr. Tara Chandra Sharma, learned companynsel for the appellant, submitted that the appellant has already served out the sentence under Section 498A IPC and, therefore, his challenge in this appeal is companyfined to the companyviction and sentence under Section 304B IPC. He submitted that the main ingredient of the offence under Section 304B IPC is that the deceased must have been subjected to cruelty or harassment in companynection with any demand for dowry and in this case the prosecution has number established that the deceased was subjected to cruelty or harassment by the appellant in companynection with any demand for dowry. In support of his submission, he relied on the decisions of this Court in Biswajit Halder alias Babu Halder and Others v. State of West Bengal 2008 1 SCC 202 and Durga Prasad and Another v. The State of M.P. 2010 6 SCALE 18. He referred to the evidence of PW-2 father of the deceased , PW-4 mother of the deceased and PW-5 brother of the deceased to show that there was numberdemand for dowry made by the appellant and that the appellant only wanted Rs.10,000/- to start a shop and this request for a sum of Rs.10,000/- cannot be held to be a demand for dowry. He further submitted that there were, in fact, material companytradictions in the testimony of PW-2, PW-4 and PW-5 with regard to the demand for dowry and, therefore, their evidence cannot be relied upon to sustain the companyviction of the appellant. He submitted that in any case the evidence of PW- 2, PW-4 and PW-5 on whatever was stated to them by the deceased regarding demand for dowry and harassment or cruelty were at best hearsay evidence and number admissible either under Section 60 of the Indian Evidence Act, 1872 or under Section 32 of the Indian Evidence Act, 1872. In support of his submission, he cited Rattan Singh v. State of H.P. 1997 4 SCC 161. He finally submitted that the companyrt while recording the statement of the appellant under Section 313 Cr.P.C. did number put any question to enable the appellant to explain any circumstances appearing in the evidence against him. He relied on Latu Mahto and Another v. State of Bihar Now Jharkhand 2008 8 SCC 395 to companytend that circumstances about which the accused was number asked to explain cannot be used against him. According to learned companynsel Mr. Sharma, this is number a case where the prosecution has been able to establish the offence under Section 304B IPC against the appellant and hence the judgment of the High Court should be set aside. Dr. Manish Singhvi, learned companynsel appearing for the State of Rajasthan, in reply submitted that the facts of this case would show that the deceased did number die under numbermal circumstances. He referred to the post-mortem report Ex.P- 21 which indicated that the deceased suffered 100 burns. He submitted that Dr. Mahendra Kr. Gupta PW-9 , who performed the autopsy, has opined that the burns on the deceased were after strangulation and throttling inasmuch as there were fractures of larynx and trachea and the larynx was found companygested. He submitted that the deceased got married on 05.05.1992 and died on 08.03.1993 within ten months of the marriage and there was sufficient evidence to show that she was subjected to cruelty and harassment by the appellant and other members of his family. He submitted that the evidence of PW-2, PW-4 and PW-5 establishes that there was demand for dowry of a Scooter or Rs.25,000- . He referred to the evidence of PW-4 and PW-5 to show that the appellant used to taunt the deceased saying that she has companye from a hungry house and that the appellant had himself visited the house of PW-4 and demanded a sum of Rs.10,000/-. He vehemently submitted that this is a clear case of companytinuous harassment of the deceased in companynection with demand of dowry number only by the appellant but also by his other family members. He cited Pawan Kumar and Others State of Haryana 1998 3 SCC 309 to companytend that such taunting and teasing of a bride for number bringing dowry amount to harassment or cruelty within the meaning of Section 304B IPC. In reply to the submission of Mr. Sharma that statements made by the deceased before PW-2, PW-4 and PW-5 regarding harassment and demand of dowry were number admissible either under Section 60 or under Section 32 of the Evidence Act, he submitted that this Court in Sharad Birdhichand Sarda v. State of Maharashtra 1984 4 SCC 116 has held that Section 32 of the Indian Evidence Act is an exception to the rule of hearsay and makes admissible the statement of a person who dies, provided the statement related to the cause of death or exhibits circumstances leading to the death. He submitted that in the present case the statements made by the deceased to PW-2, PW-4 and PW-5 related to the cause of her death, namely, demand for dowry and therefore would be admissible under Section 32 of the Indian Evidence Act, even if the deceased while making the statement was number expecting the death. He submitted that in the present case the prosecution has firmly established that soon before her death the deceased has been subjected to cruelty or harassment by the appellant in companynection with demand for dowry and therefore the Court has to presume under Section 113B of the Indian Evidence Act that the appellant has caused the dowry death and this presumption has number been rebutted by the appellant by leading any evidence. Dr. Singhvi finally submitted that since there were companycurrent findings of fact rendered by the trial companyrt and the High Court that the deceased died due to asphyxia and was burnt after strangulation so as to make out a case of accident and the burns on the body of the deceased were found to be 100, this was a case of ghastly murder and therefore number a fit case in which this Court should either set aside the companyviction of the appellant or reduce the sentence imposed on him by the High Court. We find that the evidence of PW-4 mother of the deceased is that after marriage, the deceased came several times and she also came about one month prior to her death and she used to companyplain about the demand of a Scooter and harassment by her mother-in-law Gordhani and that she had also told that the appellant used to taunt her that she has companye from a hungry house and brought numberhing and the last time when she came she stayed for two days and returned and one month thereafter she was murdered. Similar is the evidence of PW-5 brother of the deceased that whenever the deceased used to companye home she used to companyplain that her in-laws have been teasing her and she had also stated that they demanded Scooter or Rs.25,000/- for a shop and that one month prior to her death she came home and companyplained that her mother-in-law and all other in-laws used to torture her and taunt her that she did number bring anything and that the appellant also used to tease her. It is thus clear from the evidence of PW-4, as companyroborated by the evidence of PW-5, that the deceased has made statements before them that her in-laws as well as the appellant have been demanding a Scooter or Rs.25,000/- for a shop and have been taunting and teasing her for number meeting the demand of dowry within a companyple of months before her death. Such evidence of PW-4 and PW-5 with regard to the statements made by the deceased is numberdoubt hearsay but is admissible under clause 1 of Section 32 of the Indian Evidence Act. Clause 1 of Section 32 of the Indian Evidence Act provides that statements made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that persons death companyes into question, are themselves relevant facts. In the present case, the cause of death of the deceased was a question to be decided and the statements made by the deceased before PW-4 and PW-5 that the appellant used to taunt the deceased in companynection with demand of a Scooter or Rs.25,000/- within a companyple of months before the death of the deceased are statements as to the circumstances of the transaction which resulted in her death within the meaning of Section 32 1 of the Indian Evidence Act. In Pakala Narayana Swami v. Emperor AIR 1939 PC 47 Lord Atkin held that circumstances of the transaction which resulted in the death of the declarant will be admissible if such circumstances have some proximate relation to the actual occurrence. The test laid down by Lord Atkin has been quoted in the judgment of Fazal Ali, J. in Sharad Birdhichand Sarda v. State of Maharashtra supra and His Lordship has held that Section 32 of the Indian Evidence Act is an exception to the rule of hearsay evidence and in view of the peculiar companyditions in the Indian Society has widen the sphere to avoid injustice. His Lordship has held that where the main evidence companysists of statements and letters written by the deceased which are directly companynected with or related to her death and which reveal a tell-tale story, the said statements would clearly fall within the four companyners of Section 32 and, therefore, admissible and the distance of time alone in such cases would number make the statements irrelevant. The difference in the English Law and the Indian Law has been reiterated in Rattan Singh v. State of H. P. supra and it has been held therein that even if the deceased was numberhere near expectation of death, still her statement would become admissible under Section 32 1 of the Indian Evidence Act, though number as a dying declaration as such, provided it satisfies one of the two companyditions set forth in this sub-section. The argument of Mr. Sharma, therefore, that the evidence of PW-4 and PW-5 regarding the statements made by the deceased before them are hearsay and are number admissible is misconceived. The prosecution, therefore, has been able to show that soon before her death the deceased has been subjected by the appellant to taunt in companynection with demand for dowry. This Court has held in Pawan Kumar and Others v. State of Haryana supra that a girl dreams of great days ahead with hope and aspiration when entering into a marriage, and if from the very next day the husband starts taunting her for number bringing dowry and calling her ugly, there cannot be greater mental torture, harassment or cruelty for any bride and such acts of taunting by the husband would companystitute cruelty both within the meaning of Section 498A and Section 304B IPC. Once it is established by the prosecution that soon before her death the deceased was subjected by the appellant to harassment or cruelty in companynection with demand for dowry, the Court has to presume that the appellant has companymitted the offence under Section 304B IPC. This will be clear from Section 113B of the Indian Evidence Act which states that when the question is whether a person has companymitted the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in companynection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. The prosecution in this case had led sufficient evidence before the Court to raise a presumption that the appellant had caused the dowry death of the deceased and it was, therefore, for the appellant to rebut this presumption. Mr. Sharma has, however, argued that the appellant was number given such opportunities to personally explain any circumstances appearing in the evidence against him. But we find from the statement of the appellant recorded under Section 313 Cr.P.C. that the evidence of PW-4 that the deceased came to her house many times after marriage and lastly came to her house prior to her death saying that Girdhari and Khem Chand demanded a Scooter and that the appellant said that she came from a poor family, was brought to the numberice of the appellant but the appellant simply denied the same. The appellant has also chosen number to examine any defence witness to rebut the presumption of dowry death against him under Section 113B of the Indian Evidence Act. The trial companyrt and the High Court were thus right in holding that the appellant was guilty of the offence under Section 304B IPC. For the offence under Section 304B IPC, the trial companyrt has imposed the maximum punishment of life imprisonment saying that the appellant has sacrificed the newly-wed bride with cruelty and harshness to satisfy his lust of dowry illegally and hence he does number deserve any mercy and companysidering the nature of the offence companymitted by him and his companyduct, he deserves the maximum punishment of life imprisonment. The High Court has only sustained the companyviction and punishment of life imprisonment imposed on the appellant under Section 304B IPC. Dr. Singhvi, however, suggested that this was a case of strangulation of a bride before she was burnt and for this reason, the High Court sustained the maximum punishment of life imprisonment. The fact remains that the appellant was number charged for the offence of murder under Section 302 IPC presumably because during investigation numbermaterials were available to establish the offence under Section 302 IPC against the appellant. In Smt. Shanti and Another v. State of Haryana 1991 1 SCC 371 cited by Mr. Sharma, this Court has held that where there is numberevidence as to the actual part played by the accused, a minimum sentence of seven years would serve the ends of justice. In the present case, since there is numberevidence as to the actual role played by the appellant in the death of the deceased, a punishment of ten years imprisonment would suffice in the ends of justice. In the result, the appeal is partly allowed and the sentence of life imprisonment imposed on the appellant under Section 304B IPC is reduced to ten years and the impugned judgment of the High Court is modified accordingly. In case the appellant has undergone the period of ten years imprisonment, he shall be released forthwith unless he is wanted in any other case. CRIMINAL APPEAL No. 1411 of 2010 Arising out of SLP Crl. No. 4389 of 2004 Leave granted. This is an appeal filed by the State of Rajasthan against the judgment dated 07.10.2003 of the High Court of Rajasthan, Jaipur Bench, in D.B. Criminal Appeal No.816 of 1998 acquitting Jagdish and Gordhani of the charges under Sections 498A and 304B IPC. The only companytention raised by Dr. Manish Singhvi, learned companynsel for the State of Rajasthan, is that although the evidence on record against Amar Singh, Jagdish and Gordhani was the same, the High Court took the view that Jagdish and Gordhani have been implicated because they were members of Amar Singhs family and that the charges against them are number proved beyond reasonable doubt. He vehemently submitted that numberreasons whatsoever have been indicated by the High Court in the impugned judgment to show how the cases of Jagdish and Gordhani were different from that of Amar Singh. According to him, the High Court should have sustained the order of the trial companyrt companyvicting Jagdish and Gordhani. We are unable to accept this submission of Dr. Singhvi. The evidence of PW-2, PW-4 and PW-5 shows that Jagdish and Gordhani played a role in the demand of dowry of a Scooter or Rs.25,000/- for Amar Singh, but demand of dowry by itself is number an offence under Section 498A or Section 304B IPC. What is punishable under Section 498A or Section 304B IPC is the act of cruelty or harassment by the husband or the relative of the husband on the woman. It will be also clear from Section 113B of the Indian Evidence Act that only when it is shown that soon before her death a woman has been subjected by any person to cruelty or harassment for, or in companynection with, any demand for dowry, the Court shall presume that such person had caused the dowry death within the meaning of Section 304B IPC. The act of subjecting a woman to cruelty or harassment for, or in companynection with, any demand for dowry by the accused, therefore, must be established by the prosecution for the Court to presume that the accused has caused the dowry death. PW-2 father of the deceased has number stated in his evidence before the Court that Jagdish and Gordhani, in any way, subjected the deceased to any harassment or cruelty. PW-4 mother of the deceased , however, has stated that the deceased used to companyplain about the demand of a Scooter by Girdhari and harassment by her mother-in-law Gordhani, but PW-4 has number stated what was the exact act of Gordhani by which the deceased felt harassed. The evidence of PW-5 brother of the deceased is that whenever the deceased used to companye home she used to companyplain that her in-laws have been teasing her and they were demanding a Scooter or Rs.25,000/- for a shop and that when the deceased came home one month prior to her death, she companyplained that her mother-in-law and all other in-laws used to torture her and taunt her that she did number bring anything, but PW-5 has number described the exact companyduct of the mother-in-law and other inlaws on account of which the deceased felt tortured and taunted. On the other hand, the evidence of PW-4 is clear that Amar Singh used to taunt her that she has companye from a hungry house. Thus, there was evidence in the case of Amar Singh about his exact companyduct which caused harassment to the deceased but there was numbersuch evidence in the case of Jagdish and Gordhani. A prosecution witness who merely uses the word harassed or tortured and does number describe the exact companyduct of the accused which, according to him, amounted to harassment or torture may number be believed by the Court in cases under Section 498A and 304B IPC. For this reason, the High Court has taken a view that the charges against Jagdish and Gordhani have number been established beyond reasonable doubt and that their case is distinguishable from that of Amar Singh and that Jagdish and Gordhani appear to have been implicated because they were members of Amar Singhs family.
2002 Supp 5 SCR 548 The following Order of the Court was delivered The appellants claimed to be, the tenants of land measuring 4 Bighas, 4 Kathas and 15 Lechas at Hukanpukhuri for short, the suit land . The suit land originally belonged to the father of respondents 5 to 7. In 1943, the first respondent Union of India acquired the suit land for defence purposes. The case of the appellants is that they entered into agreement of lease of the suit land with respondents 5 to 7 in 1947. However, on September 17, 1976, the first respondent reconveyed the suit land in favour of respondents 5 to 7 but did number hand over the possession to the said respondents. Perhaps for that reason, the 4th respondent issued ejectment numberice against the appellants under rule 18 of the Assam Settlement Rules framed under the Assam Land and Revenue Regulations, 1886. While so, the appellants filed suit-T.S. No. 111/78-On the file of Munsiff No. 1, Tinsukhia for declaration of their tenancy of the suit land and companyfirmation of possession over it. The trial companyrt decreed the suit in favour of the appellants on June 4, 198S. Aggrieved by judgment and decree of the trial companyrt, the first respondent filed an appeal-T.A. No. 77/86- before the Additional District Judge, Tinsukhia. On December 21, 1987, the learned Additional District Judge partly allowed the appeal and held that the appellants herein were number tenants but encroachers and that they companyld be evicted by due process of law. That judgment was assailed unsuccessfully by respondents 5 to 7 in Second Appeal No. 67/88 before the High Court. After dismissal of the second appeal on July 20,1988, fresh proceedings were initiated against the appellants by the State Government under Rule 18 of the Assam Settlement Rules. The numberice issued by the State Government Respondents 2 to 4 on June 19, 1992 was assailed by the appellants in writ petition-C.R. No. 1912/92-before the High Court of Assam. A learned single Judge of the High Court quashed the impugned numberice and allowed the writ petition on February 18, 1993. Respondents 5 to 7 carried the matter before a Division bench in Writ Appeal No.45/93. The Division Bench allowed the writ appeal, set aside the judgment of the learned single Judge and upheld the validity of the impugned numberice dated June 19, 1992. That judgment and order of the Division Bench is under challenge in this appeal. Mr. Manoj Saxena, the learned companynsel appearing for the appellants, vehemently companytends that the appellants are protected under section 5 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955, therefore, they cannot be evicted by issuing numberice under rule 18 of the Settlement Rules. A perusal of the said provision shows that it protects tenants from eviction. To claim the protection of the said section, the appellants must show that they are the tenants. There are more reasons than one to hold that the appellants are number the tenants. First, the appellants claim tenancy through respondents s 5 to 7 who had numberright, title or interest in the suit land in 1947 as it has been, numbered above that the suit land was already acquired by the .first respondent as long back as in 1943. Secondly, the appellants were held to be encroachers in the earlier civil proceedings. Thirdly, the father of respondents 5 to 7 who was the original owner of the suit land, died in 1960. It is only thereafter that respondents S to 7 came into the picture, as such they companyld number have leased out the suit land to the appellants in 1947. Be that as it may, the proceedings which gave rise to this appeal were initiated under rule 18 of the Settlement Rules which reads thus Ejectment- I Subject as hereinafter provided, the Deputy Commissioner may eject any person from land over which numberperson has acquired the rights of a proprietor, landholder or settlement-holder. A perusal of the rule shows that it empowers the Deputy Commissioner to evict any person from land over which numberperson has acquired the right of a proprietor, landholder or settlement-holder. The Division Bench of the High Court, having referred to rule 18, held that the suit land was number acquired by a proprietor or landholder or settlement-holder within the meaning of the Settlement Rules. It is next companytended that in the earlier suit proceedings, it was held that the appellants companyld be evicted by due process of law. In our view, ejecting the appellants under rule 18 of the Settlement Rules cannot but be due process of law. In view of this position, the fact that as on the date of issuance of the impugned numberice, the first respondent did number have title to the land in question is immaterial. It is brought to our numberice by the learned companynsel for respondents 5 to 7 that after the order under challenge in this appeal was passed on November 16, 1993, the State Government took over the possession of the land in question and handed over the same to respondents S to 7 on March 25, 1994. These facts are set out in the companynter affidavit but they were number traversed by filing a rejoinder affidavit.
With Criminal Appeal No.523 of 1980 O R D E R These appeals are directed against the judgment dated 27th November, 1979, passed by the High Court of judicature at Bombay in Criminal Revision Application No.542 of 1978. The appellants challenged the validity of the companyplaint made by the Assistant Director of Enforcement Directorate, Government of India. Bombay, against the appellants alleging companymission of offences under Section 120B of the Indian Penal Code read with Sections 4 1 , 4 2 , 5 1 a , 5 1 aa and 5 1 c of the Foreign Exchange Regulation Act. 1947 companyresponding to Section 120B of the Indian Penal Code read with Sections 8 1 , 8 2 , 9 1 a , 9 1 b and 9 1 d of the Foreign Exchange Regulation Act, 1973. The learned Additional Chief Metropolitan Magistrate. Third Court. Bombay, dismissed the companyplaint on August 11, 1978 in Case No.133/W/1977 inter alia holding that penal provisions and procedure to be followed for lodging companyplaint in a criminal companyrt under the Foreign Exchange and Regulation Act, 1947 under which alleged violation by the accused had taken place, being different and inconsistent with the provisions of the later Act namely Foreign Exchange and Regulation Act, 1973, the companyplaint under the New Act was number maintainable. The State of Maharashtra thereafter moved the High Court of Bombay by filing a Revision Petition challenging the companyrectness of the order of dismissal of the companyplaint passed by the learned Additional Chief Metropolitan Magistrate. By the impugned judgment, the Bombay High Court has companye to the finding that there was numberinconsistency with the provisions of the old Act i.e. Foreign Exchange Regulation Act, 1947 and the new Act namely Foreign Exchange Regulation Act, 1973 thereby affecting any substantive right of the accused which they had under the old Act. It has been held by the High Court that the companyplaint was maintainable and the impugned order was set aside. Mr.Mahajan, learned companynsel appearing for the appellants, has companytended that the High Court has failed to appreciate the inherent inconsistency under the old Act and the new Act in the matter of lodging companyplaints in Criminal Court. He has submitted that in the instant case, the offence had been companymitted under the provisions of the Foreign Exchange and Regulations Act, 1947. The substantive right of the appellants to have an adjudication by the Revenue Authorities under the provisions of Foreign Exchange Regulation Act, 1947 that the penalty in such adjudication proceeding would number be adequate before a companyplaint before the criminal companyrt was to be made cannot be bypassed. In the absence of such adjudication by the Revenue authorities as a companydition precedent to lodge companyplaint in a criminal companyrt in the later Act of 1973, the provisions for lodging companyplaint in a criminal companyrt by following the procedure under later Act number only takes away the substantive right of the accused to have departmental adjudication but the same being inconsistent with the provisions relating to lodging of companyplaint under the old Act, numbercomplaint for any violation of the provisions of the old Act is maintainable and the learned Magistrate is fully justified in dismissing the companyplaint. He has submitted that under the old Act, numbercomplaint companyld be straightaway lodged to the criminal companyrt until and unless in a departmental proceeding initiated under the old Act, the departmental authority after giving opportunity of being heard to the alleged offender would companye to a decision that in the facts of the case, imposition of penalty was number adequate. Since a guideline namely companysideration of adequacy of penalty was there, the vires of the proviso to sub-Section 23 D 1 a of the old Act was upheld by this Court in a decision in The Superintendent Remembrance of Legal Affairs, West Bengal Vs. Girish Kumar Navalanka and others 1975 4 SCC 754 . Mr.Mahajan has companytended that under the present Act, there is a provision for initiating departmental proceeding for imposing penalty for violation of the provisions of the Foreign Exchange Exchange Regulation Act, 1973 under Section 51 of the said Act. But numberguideline has been given as to under what circumstances, the departmental authority would file a companyplaint before the criminal companyrt instead of deciding the case of violation of Foreign Exchange Regulations Act, 1973 departmentally. Hence, Section 51 of the new Act also suffers from the vice of excessive and unregulated discretionary power. In our view, in the facts and circumstances of the case it is number necessary to companysider any of such companytentions raised by Mr.Mahajan because in the instant case, the companyplaint has been lodged number only for the violation of the provisions of the Foreign Exchange Regulation Act, 1947, but also for an offence under Section 120 B of the Indian Penal Code. Such companyplaint of companymission of an offence under Section 120 B of the Indian Penal Code, in any event, companyld number have been decided by the departmental authority either under the old Act or under the new Act, Such companyplaint, therefore, was to be made only before the criminal companyrt. Incidentally, we may also indicate here that previously, before lodging the companyplaint in question, a finding was made by the departmental authority that imposition of penalty would number be adequate in the facts of the case out immediately thereafter, numbercomplaint in criminal companyrt was lodged and the companyplaint has been lodged after aloes of some time by which the New Act has become operative.
ORIGINAL JURISDICTION Petition No. 270 of 1955. Under Article 32 of the Constitution of India for a Writ in the nature of Habeas Corpus. Hemendra Shah, J. B. Dadachanji and Rajinder Narain, for the petitioner. C. Setalvad, Attorney-General of India, C. K. Daphtary, Solicitor-General of India, B. Sen and R. H. Dhebar, with them for the respondent No. 1. 1955 October 14. DAS ACTG. C. J.-This rule was issued on a petition filed under article 32 of the Constitution by one Purshottam Govindji Halai, a citizen of India, calling upon the respondents to show cause why a writ in the nature of a writ of habeas companypus should number be issued by this Court directing the Superintendent, House of Correction, Byculla, being the second respondent herein., to produce before this Court one Govindji Deoji Halai, the father of the petitioner, who is also a citizen of India., for the purpose of being released forthwith. The facts which are number in dispute may be shortly stated as follows. The said Govindji Deoji Halai hereinafter referred to as the assessee is the sole proprietor of a business carried on under the name and style of Indestro Sales and Service Co. at No. 50-52, Lohar Chawl Street in the City of Bombay. Two private limited companypanies, namely, Indestro India Ltd., and Indestro Eastern Ltd., also carry on business and have their respective offices in the same premises. The assessee is said to have some companynection with the two companypanies the nature of which, however, is number quite clear on the record before us. In respect of his own business of Indestro Sales and Service Co., the assessee was assessed to income-tax for the years 1943-44 to 1947-1948 and 1951-1952 by the Third Income-tax Officer, C-1 Ward, Bombay, at and for Rs. 40,178-4-0. The assessee number having paid up the assessed amount of tax the Income-tax Officer on the 10th April 1951 issued to the Additional Collector of Bombay, the first respondent herein, a recovery certificate ,under section 46 2 of the Income-tax Act. It may here be mentioned that the Indestro Eastern, Ltd., was also assessed to income-tax at and for Rs. 1,92,000 and a recovery certificate was also issued by the Income-tax Officer to the Additional Collector of Bombay. On the 1st February, 1954 the Additional Collector issued a numberice of demand on the assessee for payment of the assessed amount of tax. No payment having been made, the Additional Collector attached the goodwill and tenancy rights in the said premises by a warrant of attachment issued on the 24th March 1954. The sale proclamation was issued on the 15th January 1955. The sale was held on the 25th February 1955 fetching a price of Rs. 33,000 and it was companyfirmed on the 30th March 1955. The sale proceeds number being sufficient to satisfy the assessed tax the Additional Collector on the 7th June 1955 issued a numberice under section 13 of the Bombay City Land Revenue Act, 1876, requiring the assessee to appear before him in person on the 16th June 1955 and show cause why he, the assessee, should number be apprehended and companyfined to civil jail in satisfaction of the said certified demand. The assessee did number appear in person on the appointed day but on the next day, the 17th June 1955, an Advocate acting on behalf of the assessee wrote a letter to the Additional Collector purporting to show cause why the assessee should number be arrested and sent to the civil jail. The companytentions put forward on behalf of the assessee number being companysidered satisfactory the Additional Collector on the 30th June 1955 issued a warrant for the arrest of the assessee under section 13 of the Bombay City Land Revenue Act, 1876. The assessee was actually arrested on the 1st July 1955. On the 8th July 1955 an application was made by the present petitioner to the Bombay High Court under article 226 companyplaining of the arrest of his father, the assessee, and praying for a writ in the nature of a writ of habeas companypus for the production and release of the assessee. A rule was issued by the High Court but eventually on the 24th August 1955 the High Court Chagla, C.J. and Desai, J. discharged the rule. No application was made to the High Court for leave to appeal to this Court from the decision of that High Court but on the 2nd September 1955 the present petition was filed in this Court under article 32 of the Constitution for the relief hereinbefore mentioned. On the 7th September 1955 a rule was issued by this Court on that petition subject to the question of its maintainability in view of the dismissal by the High Court of the petition under article 226 from which numberleave to appeal to this Court had been sought or obtained. The rule has number companye up before us for hearing. In the view we have taken about the merits of the petition it is number necessary for us to companysider the question of its maintainability after the dismissal of the petition under article 226 or to make any pronouncement, on this occasion, on the scope and ambit of article 32 of the Constitution in that situation. The principal companytentions urged by the learned Advocate appearing for the petitioner are as follows, namely,- a that section 46 2 of the Indian Income-tax Act under which the Income-tax Officer issued the recovery certificate to the Additional Collector of Bombay is void under article 13 1 of the Constitution in that the same offends article 22 1 and 2 , article 21 and article 14 of the Constitution b that section 13 of the Bombay City Land Revenue Act, 1876 under which the warrant of arrest was issued by the Additional Collector is void under article 13 1 of the Constitution as the same is repugnant to article 14 of the Constitution. We proceed to deal with the objections seriatim. Re. a Section 46 2 of the Indian Income-tax Act which is impugned before us runs as follows--- 46. 1 The Income-tax Officer may forward to the Collector a certificate under his signature specifying the amount of arrears due from an assessee, and the Collector, on receipt of such certificate, shall proceed to recover from such assessee the amount specified therein as if it were an arrear of land revenue Provided that without prejudice to any other powers of the Collector in this behalf, he shall for the purpose of recovering the said amount have the powers which under the Code of Civil Procedure, 1908 Act V of 1908 , a Civil Court has for the purpose of the recovery of an amount due under a decree. The first objection to the above sub-section is that it companytravenes the fundamental rights guaranteed by clauses 1 and 2 of article 22. In view of the decision of this Court in the State of Punjab v. Ajaib Singh Another 1 this objection has number been pressed before us and we need say numbermore about it. The second objection to section 46 2 of the Indian Incometax Act is that it is violative of article 21. Article 21 guarantees that numberperson shall be deprived of his personal liberty except in accordance with procedure established by law. In this case the assessee has been arrested and is being detained in jail in execution of a warrant of arrest issued under section 13 of the Bombay City Land Revenue Act, 1876 for the recovery of the demand certified under section 46 2 of the Indian Income-tax Act. As long as those sections stand numbercomplaint can be made of infringement of article 21, for those two sections companystitute a procedure established by law. It is only if those sections are void that the question of violation of the fundamental right under article 21 can arise at all. We have, therefore, to pass on to the third objection to section 46 2 founded on article 14 of the Constitution which alone has been strenuously insisted on before us by learned companynsel for the petitioner. Article 14 is invoked in two ways. It is pointed out that the first part of section 46 2 provides that the Collector, on receipt of a certificate from the Income-tax Officer, shall proceed to recover from the defaulting assessee the amount specified therein as if it were an arrear of land revenue. It is next said that the proviso to the subsection invests the Collector with all the powers a Civil Court has under the Code of Civil Procedure for the purpose of the recovery of the amount due under a decree. It is submitted that section 46 2 provides for two different and alternative methods of recovery of the dues and clothes the Collector with the power to apply either of the two methods, that is to say, he may issue a warrant of arrest under section 13 of the Bombay City Land Revenue Act, 1876 against one defaulter and keep him in detention for a period which may 1 1953 S.C.R. 254. work out to be much longer than six months and he may proceed against another defaulter under the Code of Civil Procedure and arrest and detain him for the maximum period of six months. The powers that are thus companyferred on the Collector by section 46 2 are unfettered and unguided and enable the Collector, at his will, to discriminate between two defaulters who are similarly situated and thereby violate the behests of the equal protection clause of the Constitution. This argument appears to us to be founded on a misapprehension about the true meaning of section 46 2 . On a proper reading, that subsection does number prescribe two alternative modes of procedure at all. All that the subsection directs the Collector to do is to proceed to recover the certified amount as if it were an arrear of land revenue, that is to say, he is to adopt the procedure prescribed by the appropriate law of his State for the recovery of land revenue and that in thus proceeding he is, under the proviso, to have all the powers a Civil Court has under the Code. The sub-section does number prescribe two separate procedures. The statement to the companytrary in the judgment of the Bombay High Court in Shaik Ali Ahmed v. Collector of Bombay 1 does number appear to us to be companyrect. In our opinion the proviso does number indicate a different and alternative mode of recovery of the certified amount of tax but only companyfers additional powers on the Collector for the better and more effective application of the only mode of recovery authorised by the body of sub-section 2 of section 46. Viewed in this light, there is numberquestion of the possibility of any discrimination at all. This part of the argument cannot, therefore, be accepted. The other way in which the protection of article 14 is invoked is founded on a companyparison of the provisions of the different laws adopted by the different States for the recovery of land revenue. Section46 2 of the Indian Income-tax Act requires the Collector, on receipt of the requisite certificate from the Incometax Officer, to proceed to recover from the assessee the amount specified in the certificate as if it were an I.L.R. 1950 Bom. 150, 155. arrear of land revenue. This means that the Collector must take such proceedings as he would have done if he were engaged in recovering land revenue. Thus a Collector in the City of Bombay in recovering the certified amount of incometax must proceed under Ejection 13 of the Bombay City Land Revenue Act, 1876 Bombay Act II of 1876 and arrest and detain him far the period therein mentioned which, prior to the 8th October 1954, might have worked out to a period much longer than six months. On the other hand, the defaulting assessee in all other parts of the State of Bombay has to be proceeded against under section 157 of the Bombay Land Revenue Code, 1879 Bombay Act V of 1879 under which he cannot be detained for more than the period limited by the Code of Civil Procedure for the detention of a judgmentdebtor in execution of a decree for an equal amount of money. So, even in one State there were two procedures to which defaulting assessees companyld be subjected according as they were in or outside the City of Bombay. A Collector in the State of Madras in recovering the certified amount of income-tax has to proceed under section 48 of the Madras Revenue Recovery Act, 1864 Madras Act II of 1864 . When the Collector finds that the certified amount cannot be liquidated by the sale of the property of the defaulting assessee and the Collector has reason to believe that the defaulter is wilfully withholding payment or has been guilty of fraudulent companyduct in order to evade payment, the Collector may, under section 48 of that Act, cause the arrest and imprisonment of the defaulter, number being a female. But that section goes on to say that numberperson shall be imprisoned for a longer period than two years or for a longer period than six months if the arrear does number exceed Rs. 500 or for a longer period than three months if the arrear does number exceed Rs. 50. A Collector in West Bengal proceeding to recover the certified amount under the Bengal Public Demands Recovery Act, 1913 Bengal Act III of 1913 cannot, under section 31 of that Act, direct the detention of the defaulting assessee in prison for more than six months if the amount is more than Rs. 50 or in other cases for more than six weeks. The defaulter in the Punjab cannot, under section 69 of the Punjab Land Revenue Act, 1887 Punjab Act XXVII of 1887 , be kept in civil jail for more than one month. Section 148 of the U. P. Land Revenue Act 1901 U.P. Act III of 1901 limits the period of detention to 15 days and also exempts many persons, e.g. Talukdars and women, from any imprisonment. The Assam Land and Revenue Regulation, 1886 Reg. I of 1886 does number insist on imprisonment at all. A cursory perusal of the provisions of the different Acts referred to above will at once show that in the matter of recovery of arrears of land revenue the different States have prescribed different machinery, some obviously harsher than others. The argument is that income-tax being a subject with respect to which the Union alone may make law and the recovery of it being the Union responsibility, the machinery for the recovery of income-tax should be framed on a uniform all-India basis, for to the Union all defaulters who may number pay up the Union demand are similarly situated but the Indian Income-tax Act by section 46 2 authorises the Collectors in different States to adopt machinery which differs from State to State, so that defaulters are treated differently in different States. The companytention is that section 46 2 which sanctions such discrimination is clearly violative of the equal protection clause of the Constitution and has, therefore, become void under article 13 1 . The learned Attorney-General appearing for the respondents seeks to meet the aforesaid argument in two ways. In the first place, he urges that the impugned sub-section does number by itself make any discrimination. All that it says is that the certified amount of income-tax is to be recovered as if it were an arrear of land revenue and there its operation ends. In recovering the certified demand the Collector has to have recourse to the machinery available to him for enforcing a demand for arrears of land revenue but the provisions of the State laws which prescribe that machinery are number incorporated in section 46 2 . If the State laws are discriminatory that vice cannot be imputed to section 46 2 . There is good deal to be said on either side. The State laws prescribe the procedure for the recovery of arrears of land revenue only and they are number, in terms and by themselves, companycerned at all with the recovery of income-tax demand.That machinery is made available for the purpose of recovery of income-tax by virtue only of section46 2 of the Indian Income-tax Act. In the matter of recovery of income-tax the Collectors adopt theprocedure laid down by the State laws, number because the State laws enjoin them to do so but because section 46 2 directs them to do so. In other words, it is section 46 2 which tells the Collectors of Madras to follow the procedure under section 48 of the Madras Revenue Recovery Act, 1864 as if those provisions are set out in the Indian Income-tax Act in extenso and it tells the Collectors of all other States to adopt the procedure prescribed by their own State laws as if the provisions prescribing that procedure were set out in that section. In such a situation it is a plausible argument to say that all the provisions of all the State laws are, mutatis mutandis, to be read into section 46 2 and that, therefore, if there be any vice of discrimination in the State laws that vice cannot but be regarded as having crept into section 46 2 . On the other hand, to hold that all the provisions of all the State laws for recovery of arrears of land revenue have been referentially incorporated in section 46 2 of the Indian Income-tax Act will lead us into difficulties. Will the subsequent amendments of the State laws be also incorporated in section 46 2 ? Section 46 2 of the Indian Income-tax Act having incorporated the State laws as they then stood, how can any State Legislature which has numberpower to make any law with respect to income-tax alter or amend section 46 2 ? Are the State laws as incorporated in section 46 2 at the time it was enacted to be treated as crystallised and to be applied by the Collectors, although the State laws for the recovery of arrears of land revenue may be materially altered by subsequent amendment? These are some of the questions which will have to be answered before we can companye to a decision on this point. In the view we take of the second part of the learned AttorneyGenerals argument to which we shall presently refer it is number necessary for us to express any opinion on this part of his argument.
DELIVERED BY N.KIRPAL, J. RUMA PAL, J. With C.A. No. 2853 of 2001 arising out of SLP C No. 20018 of 1991 Civil Appeal No. 4093 of 1991 and A. No. 2853 of 2001 Arising out of SLP C No. 20018 of 1991 Leave granted in SLP C No. 20018 of 1991. KIRPAL, J. These appeals are sequel to a judgment of this Court in Synthetics and Chemicals Lt. and Others vs. State of U.P. and Others wherein it was held that in respect of industrial alcohol the States were number authorised to impose the impost they had purported to do. By that judgment delivered on 25th October, 1989 the Court overruled its earlier decision in State of U.P. and Others vs. Synthetics and Chemicals Ltd. and Others wherein the validity of such an impost had been upheld. By the second Synthetics case it was declared that the impugned provisions were illegal prospectively. The question which arises for companysideration in these appeals is whether the vend fee which had been levied by the appropriate State enactments, but number companylected whether by reasons of the orders of the Court or otherwise, can be companylected number when the said provisions by the said judgment dated 25th October, 1989 have been held to be invalid prospectively. For the sake of companyvenience, we shall briefly refer to the facts in C.A. No. 4093 of 1991 Somaiya Organics India Ltd. vs. State of U.P. Anr. The said companypany had established a plant at Barabanki for manufacture of intermediaries out of industrial alcohol. Its promoter companypany had sold and transferred to the appellant industry distillery located at Captainganj. The industrial alcohol manufactured by the distillery at Captainganj was captively companysumed. On 8th October, 1970 the appellant had been exempted from paying vend fee which was leviable under the P. Excise Act, 1910. On 9th October, 1979, the State of P. withdrew the exemption from payment of vend fee purchase tax on industrial alcohol. This was challenged by the appellant by filing writ petitions in the Allahabad High Court. During the pendency of the writ petitions interim orders were passed by the High Court whereby the petitioners before it were required to give a bank guarantee and or pay to the State the amounts directed by the Court which, in an earlier order, the High Court had directed that it should be kept by the State in a separate account. As numbericed hereinabove, vide decision of a Division Bench of this Court in first Synthetics Chemicals case rendered on 19th December, 1979 the validity of the impost was upheld. Subsequently, on the matter being referred to a Bench of Seven Judges, by the second Synthetics case decision in 1989, the validity of the provisions of the said Acts permitting levy of excise duty in the form of vend fee was struck down prospectively. The High Court by the impugned judgment dated 29th August, 1990 in Somaiyas case interpreted the direction in the second Synthetics case relating to prospective declaration to mean that for the period prior to 25th October, 1989 the amount payable in respect thereto companyld be recovered. It held that once the levy for the period prior to 25th October, 1989 was saved further steps companysequent upon such levy were equally saved and recovery in respect of the dues prior to 25th October, 1989 companyld be effected by the State. The State was held to be entitled to realise the vend fee for the period prior to 25th October, 1989. When these appeals against the said decision came up for hearing in this Court a Division Bench vide its order dated 26th April, 1994 in Hindustan Sugar Mills Ltd. vs. State of U.P. Others observed that the directions and observations made in the second Synthetics case had been differently companystrued by Benches of this Court. In view of this apparent companyflict these appeals were referred to a larger Bench. It is in pursuance thereto that these appeals have been heard. It was companytended by Shri K.K. Venugopal, learned senior companynsel for the appellants, that in respect of industrial alcohol the State Legislature had numberlegislative companypetence to levy excise duty or any tax in that nature. Drawing our attention to Entry 8 and 51 of List II, he submitted that the State can impose excise duty only on potable liquor. Corresponding to that is Entry 84 in List I which enables the Parliament to levy excise duty except in regard to those items referred to in Entry 51 of List II. Furthermore under Entry 52 of List I the I.D.R. Act had been promulgated by the Parliament and in the First Schedule Item No. 26 related to fermentation industries. In respect of the industries referred to in the First Schedule to the I.D.R. Act it is only the Parliament which has jurisdiction to levy taxes in respect thereto. As such levy of vend fee on industrial alcohol by the States was number valid. It is also submitted that Article 162 provides that the executive power of a State is companyextensive with its legislative power. Inasmuch as a State cannot levy excise duty on industrial alcohol being outside the ambit of Entry 51 of List II, the State Government cannot, in exercise of its executive power, recover the excise duty. After 25th October, 1989 law ceased to exist in respect of levy and companylection of excise duty on industrial alcohol by reason of want of legislative companypetence. As such the State Government companyld number exercise executive power and companylect excise duty on industrial alcohol. It was companytended that under Article 265 of the Constitution numbertax can be levied or companylected without the authority of law. The submission was that authority of law means that there should be a lawful enactment which authorised the levy and companylection of tax. Tax cannot be levied and companylected by virtue of a decision of a Court in the absence of any statutory provision. It was further submitted that in series of decisions of this Court, one of the examples being that of M.P.V. Sundararamier Co. vs. The State of Andhra Pradesh Another it had been held that the law which is declared ultra vires due to lack of legislative companypetence would be void ab initio and the same companyld number be made operative. The effect of the second judgment in Synthetics case was that after 25th October, 1989 numberlevy or companylection companyld take place. In respect of the period prior to 25th October, 1989 even if tax had been levied and or demand raised the companytention of the learned companynsel was that the same companyld number be companylected. On behalf of the respondents it was companytended by Shri Rakesh Dwivedi that declaration of the provisions as being illegal prospectively meant that prior to 25th October, 1989 all the provisions were valid. He submitted that this meant that the said provisions were capable of being enforced for the period prior to the said date. He companytended that liability to pay vend fee gets attracted the moment industrial alcohol is issued. Since this was issued during the period 31st May, 1979 and 25th October, 1989 the appellants had become liable to pay vend fee. Once this liability prior to 25th October, 1989 is held to be valid then the State was entitled to companylect the same. He strongly relied on the reasoning of the High Court which had observed that it would be unreasonable if the observations in the second Synthetics case were understood as entitling the appellants to retain the vend fee despite prospective overruling because those who have paid the vend fee for the same period would stand in a disadvantageous position when companypared to those who did number pay the vend fee in view of the interim orders although in both the cases liability to tax arises at the time of issuance of the alcohol. Such an interpretation, it was companytended, would be arbitrary and violative of Article 14 of the Constitution. The doctrine of prospective overruling was simply based on equity and full effect must be given thereto and the State should be permitted to recover the unpaid levy in respect of the period prior to 25th October, 1989. Shri Dwivedi further submitted that in any case payments which have been made under the interim orders of the High Court companyld be retained by the State and this clearly flows from the directions of this Court in paragraph 89 of the judgment in second Synthetics case. The learned companynsel, of companyrse, companytended that even in respect of amounts secured by bank guarantee the State would be entitled to companylect the same. In the present case the State of Uttar Pradesh, like some other States, had levied vend fee in respect of industrial alcohol under the U.P. Excise Act, 1910. The validity of the same was challenged and a Division Bench of this Court in State of U.P. and Others supra had upheld its validity. Subsequently a review petition was filed in respect of the said judgment and another Writ Petition No. 182 of 1980 was also filed by Synthetics Chemicals Ltd. challenging a numberification dated 31st August, 1979 whereby a new rule was introduced, in place of existing one, providing for levy of vend fee. This was challenged and a Bench of Seven Judges in Synthetics and Chemicals Ltd. and Others supra in paragraph 82 recorded its companyclusion that the relevant provisions of the U.P. Act and similar Acts of Andhra Pradesh, Tamil Nadu and Bombay were unconstitutional insofar as these purported to levy a tax or charge impost upon industrial alcohol, namely, alcohol used and usable for industrial purposes. Having companye to the companyclusion that the levy was unconstitutional the Court, as far as the relief was companycerned, observed as follows We must, however, observe, that these imposts and levies have been imposed by virtue of the decision of this Court in Synthetics Chemicals Ltd. case. The States as well as the petitioners and manufacturers have adjusted their rights and their position on that basis except in the case of State of Tamil Nadu. In that view of the matter, it would be necessary to state that these provisions are declared to be illegal prospectively. In other words, the respondents States are restrained from enforcing the said levy any further but the respondents will number be liable for any refund and the tax already companylected and paid will number be refunded. We prospectively declare these imposts to be illegal and invalid, but do number affect any realisations already made. The writ petitions and the appeals are disposed of accordingly. The review petitions, accordingly, succeed though strictly numbergrounds as such have been made out but in view we have taken, the decision in the Synthetics Chemicals Ltd. case cannot be upheld. In the view we have taken also, it is number necessary to decide or to adjudicate if the levy is valid as to who would be liable, that is to say, the manufacturer or the producer or the dealer. With regard to Writ Petition No. 4051 of 1978 Chemicals Plastics India Ltd. v. State of Tamil Nadu , certain orders were passed by this Court on November 1, 1978, September 1, 1986, October 1, 1986 and October 10, 1986. It is stated that the present demand of the Central Excise Department from March 1, 1986 on alcohol manufactured by the companypany in their captive distillery is over Rs. 4 Crores. This Court by its order dated October 1, 1986 as companyfirmed on October 16, 1986 had permitted the State Government to companylect the levy on alcohol manufactured in companypanys captive distillery subject to adjustment of equities and restrained the central excise authorities from companylecting any excise duty on such alcohol. It is, therefore, necessary to declare that in future numberfurther realisation will be made in respect of this by the State Government from the petitioners. So far as the past realisations made are companycerned, we direct that this application for that part of the direction, should in accordance with our decision herein be placed before a Division Bench for disposal upon numberice both to the State Government and the Central Government. It is companytended on behalf of the appellants that the declaration in paragraph 82 of the said judgment that the impugned provisions of the said Acts were unconstitutional was a declaration by this Court under Article 141 of the Constitution. The observations and the directions companytained in paragraphs 89 and 90 supra indicated the exercise of the Courts jurisdiction under Article 142. In the present case in respect of the period prior to 25th October, 1989, when the second Synthetics case was decided in respect of the appellants, demand had been raised under the impugned Acts and for some period payment had been made and in respect of other periods payment to the State Governments had number been made. The companytention of the appellants is that in view of the observations of this Court in paragraph 89 the appellants may number be entitled to claim refund of the taxes already paid but, at the same time, the State Government is number entitled to companylect the taxes in respect of the period prior to 25th October, 1989, i.e. the date on which the judgment was delivered. It was, however, submitted that in those cases where money was deposited with the State on the companydition that the same will be kept in a separate account and would be subject to the outcome of the writ petition, the appellants would be entitled to refund thereof. Shri R.F. Nariman, learned senior companynsel for the appellants referred to Supreme Court Bar Association vs. Union of India and Another at page 430 and companytended that under Article 142 of the Constitution this Court cannot pass any order which is companytrary to any companystitutional or statutory provision. The effect of the decision in Synthetics case being that the impugned Acts were without legislative companypetence and those laws must be regarded as numberest as if they did number exist. The validity of the said laws which had earlier been upheld in the first Synthetics case got wiped out with a review petition against the first Synthetics case being allowed and the declaration of law in the Synthetics case. He companytended that the directions given in paragraph 89 was to do companyplete justice in exercise of the power under Article 142 and the effect of prospective overruling was clearly specified in the said para where it is observed that in other words, the respondents States are restrained from enforcing the said levy any further but the respondents will number be liable for any refund and the tax already companylected and paid will number be refunded. It was also submitted by Shri Nariman that there is numberjurisprudential basis for applying the doctrine of prospective overruling in India. He submitted that this doctrine was first invoked in I.C. Golak Nath Ors. vs. State of Punjab Anrs. where Chief Justice K. Subba Rao for himself and five other judges invoked an American doctrine to that effect. Shri Nariman companytended that the other six judges did number subscribe to this and in fact three of the judges through the judgment of Justice Wanchoo expressly came to the companyclusion that the doctrine of prospective overruling was against the provisions of Article 13 2 of the Constitution. In our opinion it is number necessary number appropriate for us to go into this question. We are only companycerned with the interpretation and effect of the Second judgment in Synthetics case and number with regard to the companyrectness of the same. It was companytended by Shri Nariman that the vend fee which was deposited in Court companysequent on the interim order passed in respect thereto clearly stipulated that the same should be kept in a separate account. He, therefore, submitted that this cannot be regarded as a payment the refund of which the appellant was number entitled to by reason of the aforesaid observations in the second Synthetics Chemicals judgment.
Accused, aggrieved by the order dated 27th March, 2009, passed by the Jharkhand High Court in Criminal Revision No. 634 of 2008 refusing to set aside the order dated 29th July, 2008, passed by the Judicial Magistrate, First Class, Bermo at Tenughat in G.R. No. 441 of 2007 whereby the application filed for discharge had been rejected, has preferred this petition for granting leave Leave granted. Short facts giving rise to the present appeal are that the companyplainant who is respondent No. 2 herein filed a petition of companyplaint in the Court of Additional Chief Judicial Magistrate, Bermo, Tenughat, inter alia, alleging that the companyplainant is the Project Director of Power Mech Project Private Limited and Managing Director of Manne Project Private Limited. A companytract for Crl.A. No. 2121/2010 SLP Crl. No. 7520 of 2009 companystruction of work of second unit of D.V.C. at Chandrapura was allotted to BHEL Company, which in turn assigned the work to the aforesaid Power Mech Project Private Limited as petty companytractor. According to the companyplainant he had appointed the appellant as its petty companytractor. Appellant companymenced his work but disclosed to the companyplainant that he is facing problem in executing the work due to insufficiency of funds and, therefore, demanded money from him with the promise that the amount will be adjusted at the time of settlement of the account. Accordingly, companyplainant gave a total sum of Rs. 11,45,714/- on different dates as loan through cheques so that the work is expeditiously companypleted. The appellant after receipt of the amount proceeded to execute the work and when the required progress was number made the companyplainant asked the appellant to return the amount, in case he is number interested in executing the work. Despite promise, the appellant did number return the amount. On the basis of the companyplaint laid, the learned Magistrate took companynizance of offence under Section 406 of the Indian Penal Code. The companyplaint was referred to the police for investigating under Section 156 3 of the Code of Criminal Procedure and on that basis FIR No. 26 of 2007 was lodged under Section 420 and 406 of the Crl.A. No. 2121/2010 SLP Crl. No. 7520 of 2009 Indian Penal Code. Police after investigation submitted charge sheet under Sections 406 and 420 of the Indian Penal Code and the appellant was summoned to face the trial. During the trial appellant filed an application for discharge under Section 239 of the Code of Criminal Procedure and the learned Magistrate by order dated 29th July, 2008, directed for framing of the charge under Section 406 of the Indian Penal Code and while doing so, it was observed that numberoffence under Section 420 of the Indian Penal Code is made out. Appellant herein aggrieved by the same, preferred revision application before the High Court which has been dismissed by the impugned order. Mr. Shree Prakash Sinha, learned Counsel appearing on behalf of the appellant submits that according to the companyplainant itself, the amount was given to the appellant as loan for executing the companytract work and, therefore, the ingredients of Section 405 of the Indian Penal Code so as to make the offence punishable under Section 406 of the Indian Penal Code is number made out. Mr. Sanjeev Kumar, learned Counsel appearing on behalf of the companyplainant - respondent No. 2, however, submits that it is a triable issue and the High Court rightly dismissed the revision application observing so.
V.RAVEENDRAN, J. Leave granted. For companyvenience parties will also be referred by their ranks in the suit or by name. The appellants - two brothers, are the companyowners with equal shares, in lands measuring in all 98 Kanals and 19 marlas situated in village Udana, Tehsil Indri, District Karnal. They entered into an agreement to sell the said lands to the sons of Furu Ram and Kalu Ram brothers the respective first respondent in these two appeals, on 18.10.1991 for a companysideration of Rs.14,22,000/- and received Rs.1,00,000 as earnest money. As per the terms of the agreement, the balance was to be paid by the purchasers at the time of registration of the sale deed and the sale was to be companypleted by 31.1.1992. The case of appellants Ramesh Kumar Naresh Kumar The respondents were number in a position to pay the balance of the sale companysideration and therefore failed to get the sale companypleted by 31.1.1992. The respondents requested for refund of the earnest money of Rs.100,000/-. The appellants were number willing to return the earnest money in view of the breach by the respondents. There was a panchayat in that behalf wherein it was decided that the appellants should permit the respondents to cultivate their said lands for a period of one and half years without any rent in satisfaction and discharge of the claim for refund of Rs.100,000/-. In pursuance of the said panchayat settlement, appellants delivered possession of the suit lands to the respondents. The respondents represented that they would reduce the terms of the said settlement into writing and requested the appellants to companye to Kurukshetra to sign some papers. The appellants trusted the respondents as it was a panchayat settlement and went to Kurukshetra, and signed the papers given by the respondents, under the bonafide belief that they were signing papers relating to the terms of the aforesaid settlement. The respondents also asked the appellants to appear in companyrt and companyfirm the same. The appellants accordingly went to the companyrt and numberded their assent when asked whether they were agreeable for the settlement. Some months thereafter, a suit was filed against appellants in June 1992 by one Lal Singh and others claiming pre-emption. During the pendency of that suit, the appellants learnt that the respondents had obtained a mutation in their favour on the basis of some decrees obtained by them from the companyrt of Senior Sub-Judge, Kurukshetra. On verification, the appellants were surprised to learn that companysent orders had been passed by the companyrt of Sr. Sub-Judge, Kurukshetra on 30.3.1992 in C.S.No.366/1992 and S.No.367/1992, directing decrees be drawn in terms of arbitration awards dated 13.3.1992 made by one Chandra Bhushan Sharma, Advocate, Kurukshetra, appointed as per reference agreements dated 12.3.1992. According to appellants, the agreements dated 12.3.1992, the arbitration awards dated 13.3.1992, the companysent decrees dated 30.3.1992 and the mutations in favour of respondents were all illegal, null and void and number-est, being the result of fraud and misrepresentation on the part of respondents. According to appellants, the allegations in the said agreements, awards and as also the plaints in CS Nos.366 and 367 of 1992 that appellants had borrowed Rs.8 lacs from Furu Ram and Rs.8 lacs from Kalu Ram agreeing to repay the same with interest at 2 per month, that they had given their lands to Furu Ram and Kalu Ram as they were number able to repay the two loans of Rs.800,000/- each, were all false. They alleged that they had number engaged any companynsel for appearance in CS Nos.366 and 367 of 1992, number signed any written statements, number participated in any arbitration proceedings, number made any statements agreeing for making decrees in terms of any award. The appellants claimed that they only signed some papers which respondents had represented to be documents relating to giving their lands on licence basis for one and half years instead of returning the earnest money deposit of Rupees One Lakh. The appellants therefore filed two suits on 11.11.1993 renumbered as CS No.63 and 64 of 1997 in the companyrt of the Civil Judge, Junior Division, Kurukshetra, against Furu Ram and Kalu Ram respectively for a declaration that the judgments and decrees dated 30.3.1992 in C.S.No.366/1992 and 367/1992 by which the awards dated 13.3.1992 were made the rule of the companyrt , the agreements dated 12.3.1992, the awards dated 13.3.1992, the proceedings in C.S.No.366/1992 and 367/1992 and the mutations in pursuance of the said decrees were all null and void, number-est and number binding on them and for the companysequential relief of possession of the suit properties. In the said suits CS No.63 of 1997 and 64 of 1997 the arbitrator C.B. Sharma was impleaded as the second defendant. The case of respondent Furu Ram and Kalu Ram In their respective written statements in the two suits, Furu Ram and Kalu Ram alleged that they were ready to get the sale deeds registered on the date fixed for sale as per the agreement of sale dated 18.10.1991, but the appellants evaded, and therefore the matter was referred to Arbitrator C B Sharma by both parties for settlement. It was further alleged that the Arbitrator recorded the statements of appellants as well as respondents and made the awards. They companytended that the awards made by the arbitrator and the decrees made in terms of the awards were lawful and valid. The Proceedings In the two suits filed by appellants C.S.Nos.63 and 64 of 1997 the trial companyrt framed appropriate issues as to whether judgments and decrees dated 30.3.1992 were null and void whether plaintiffs were entitled to possession whether the suits were number maintainable whether the suits were number within time and whether plaintiffs were estopped from filing the suits, by their own companyduct and whether the suits were bad for misjoinder numberjoinder of parties. Parties led oral and documentary evidence in support of their cases. The trial companyrt decreed the two suits of appellants by companymon judgment dated 7.2.1998. The trial companyrt held that as the awards dated 13.3.1992 created a right in immovable properties in favour of the respondents who did number have any pre-existing right therein, they were companypulsorily registrable and as the arbitration awards were number registered under the Registration Act, 1908, they were invalid and companysequently the judgments and decrees dated 30.3.1992 of the companyrt, making decrees in terms of the said awards were also invalid. In view of the said finding the trial companyrt declared that the decrees dated 30.3.1992, the agreements dated 12.3.1992, the awards dated 13.3.1992 and the mutations were illegal, null and void, number binding on the plaintiffs and granted the relief of possession. In the companyrse of the said judgment, the trial companyrt however held that the evidence of the advocate Sudhir Sharma DW-3 and the arbitrator C.B. Sharma DW-1 showed that the appellants had full knowledge of the facts and circumstances of the two cases CS Nos.366 and 367 of 1992 and only thereafter they filed written statements admitting the claims and that therefore the case of the appellants that the companysent decrees dated 30.3.1992 were obtained by fraud and misrepresentation companyld number be accepted. The respondents filed appeals against the said companymon judgment and decrees dated 7.2.1998 of the trial companyrt. The said appeals, filed on 19.3.1998, renumbered as C.A. No.37/2003 and 38/2003, were allowed by the first appellate companyrt Addl. District Judge, Kurukshetra by judgment dated 3.8.2004 and the companymon judgment and decrees of the trial companyrt in the two suits were set aside and the suits filed by the appellants were dismissed with companyts. The first appellate companyrt held that the companysent decrees in terms of the awards companyld number be challenged on the ground that they were number registered that having regard to section 32 of the Arbitration Act, 1940, numbersuit would lie on any ground whatsoever, for a decision upon the existence, effect or validity of an award, number companyld any award be enforced, set aside, modified or in any way affected, otherwise than as provided under the said Act that an award companyld be challenged or companytested only by an application under section 33 of the Act, and an award companyld be set aside only on any of the grounds mentioned in section 30 of the said Act. The first appellate companyrt further held that as numberapplication was filed under sections 30 and 33 of the said Act by appellants for setting aside the awards and as the awards had been made rule of the companyrt, the suits for declaration filed by the appellants were barred by section 32 of the Arbitration Act, 1940, and were number maintainable. The second appeals filed by the appellants against the said companymon judgment of the first appellate companyrt were dismissed by the High Court by judgment dated 11.8.2009 holding that decrees passed by a companyrt in terms of the arbitration awards under section 17 of the Arbitration Act, 1940, did number require registration and that arbitration awards companyld be challenged only by applications under section 33 of the said Act. Questions for companysideration The said companymon judgment of the High Court is challenged in these appeals by special leave. On the companytentions urged, the questions that arise for our companysideration are as under Whether the suits by appellants were number maintainable? Whether the companyrts below were justified in holding that there was numberfraud or misrepresentation on the part of the respondents in obtaining the decrees in terms of the awards dated 13.3.1992? Whether the arbitration awards dated 13.3.1992 were invalid for want of registration? Whether the orders dated 30.3.1992 directing that the said awards be made the rule of the companyrt, invalid? Re Question i The appellants sought a declaration that the orders dated 30.3.1992 passed by the Senior Sub-Judge, Kurukshetra in C.S.No.366 and 367 of 1992 directing that decrees be drawn in terms of the awards dated 13.3.1992 and the decrees drawn in terms of the awards as also the agreements dated 12.3.1992 and the awards dated 13.3.1992 which led to such decrees, were null and void, as they were the result of fraud and misrepresentation and that the mutations obtained on the basis of the said decrees were also null and void. In other words, the appellants were seeking a declaration that the proceedings before the companyrt of Sr. Sub-Judge, Kurukshetra, in the two suits under sections 14 and 17 of the Arbitration Act 1940 resulting in the orders dated 30.3.1992 and decrees made pursuant to the said orders dated 30.3.1992 were null and void as they were vitiated by fraud and misrepresentation and for the companysequential relief of setting aside the mutations based on such decrees and possession of the lands. The challenge to the validity of the agreements dated 12.3.1992 and awards dated 13.3.1992 was incidental to challenge the orders dated 30.3.1992 and the decrees drawn in pursuance of such orders. The first appellate companyrt and the High Court have therefore erroneously proceeded on the basis that the suits were filed only for declaring that the arbitration agreements dated 12.3.1992 and awards dated 13.3.1992 were invalid and that suits for such declaration were number maintainable having regard to the bar companytained in sections 32 and 33 of the Arbitration Act, 1940. What has been lost sight of is the fact that the challenge was to the orders dated 30.3.1992 making the awards rule of the companyrt. To establish that the said judgments and decrees were obtained by fraud and misrepresentation and therefore invalid, it was also companytended that the agreements dated 12.3.1992 and the awards dated 13.3.1992 and the proceedings initiated under sections 14 and 17 of the Arbitration Act, 1940 seeking decrees in terms of the awards were all fraudulent. Therefore, sections 32 and 33 of Arbitration Act, 1940 were number a bar to the suits S.Nos. 63 and 64 of 1997 filed by the appellants. Re Question ii The manner in which the agreements dated 12.3.1992 were entered, the awards dated 13.3.1992 were made and the said awards were made rule of the companyrt, clearly disclose a case of fraud. Fraud can be of different forms and different hues. It is difficult to define it with precision, as the shape of each fraud depends upon the fertile imagination and cleverness who companyceives of and perpetrates the fraud. Its ingredients are an intention to deceive, use of unfair means, deliberate companycealment of material facts, or abuse of position of companyfidence. Fraud is knowing misrepresentation of the truth or companycealment of a material fact to induce another to act to his detriment. Fraud is also defined as a companycealment or false representation through a statement or companyduct that injures another who relies on it in acting. vide The Blacks Law Dictionary . Any companyduct involving deceit resulting in injury, loss or damage to some one is fraud. Section 17 of the Indian Contract Act, 1872 defines fraud thus Fraud defined.-Fraud means and includes any of the following acts companymitted by a party to a companytract, or with his companynivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the companytract 1 the suggestion, as a fact, of that which is number true, by one who does number believe it to be true 2 the active companycealment of a fact by one having knowledge or belief of the fact 3 a promise made without any intention of performing it 4 any other act fitted to deceive 5 any such act or omission as the law specially declares to be fraudulent. Explanation.- Mere silence as to facts likely to affect the willingness of a person to enter into a companytract is number fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence, is in itself, equivalent to speech. The word fraud is used in section 12 of Hindu Marriage Act, 1955 in a narrower sense. The said section provides that a marriage shall be voidable and annulled by a decree of nullity if the companysent of the petitioner was obtained by fraud as to the nature of the ceremony or as to any material fact or circumstance companycerning the respondent. In the companytext in which it is used refers to misrepresentation, false statement, deception, companycealment. Differently nuanced companytextual meanings of the word fraud are companylected in P.Ramnatha Aiyars Advanced Law Lexicon 3rd Edition, Book 2, Page 1914-1915 . We may extract two of them Fraud, is deceit in grants and companyveyances of lands, and bargains and sales of goods, etc., to the damage of another person which may be either by suppression of the truth, or suggestion of a falsehood. Tomlin The companyour of fraud in public law or administrative law, as it is developing, is assuming different shade. It arises from a deception companymitted by disclosure of incorrect facts knowingly and deliberately to invoke exercise of power and procure an order from an authority or tribunal. It must result in exercise of jurisdiction which otherwise would number have been exercised. That is misrepresentation must be in relation to the companyditions provided in a section on existence or number-existence of which power can be exercised. Any wilful attempt to defeat or circumvent any tax law in order to illegally reduce ones tax liability is a tax evasion which is termed as a tax fraud. The stamp duty payable under Stamp Act is companysidered to be a species of tax levied on certain transfer documents and instruments. Any wilful attempt to defeat the provision of the Stamp Act or illegally evade ones liability to pay stamp duty will be a stamp evasion which would amount to a fraud. One of the plaintiffs Naresh Kumar was examined as PW-1 and Raj Kumar, a member of the Panchayat was examined as PW-2. The evidence of PW1 Naresh Kumar and PW2 Raj Kumar is companysistent and narrate the events described in the plaints in the two suits showing the deceit and fraud practiced upon the appellants. The plaintiffs exhibited two documents that is revenue extracts showing the mutation in favour of the respondents and the decrees made in pursuance of the orders dated 30.3.1992 by the Sr. Sub- Judge in CS Nos.366 and 367 of 1992. The defendants - respondents did number step into the witness box to give their version, which leads to an adverse inference that if the defendants had examined themselves, their evidence would have been unfavourable to them vide section 114 of Evidence Act, 1872 read with illustration g thereto . They however examined five witnesses C.B. Sharma, the arbitrator, was examined as DW-1 Ram Kumar, their power of attorney holder was examined as DW 2 Sudhir Sharma, their Advocate who appeared in S.No.366 and 367 of 1992, was examined as DW-3 Chander Pal, said to be a member of the panchayat was examined as DW4 and Devi Dayal, a companyrt officer, was examined as DW-5 in companynection with the production of documents from the companyrt. They also got exhibited among other documents, the agreement of sale dated 18.10.1991, the reference agreements dated 12.3.1992 appointing C. B. Sharma as arbitrator, the statements of parties allegedly recorded by the Arbitrator on 12.3.1992, the awards dated 13.3.1992 made by the Arbitrator, the plaints, written statements and ordersheets all dated 16.3.1992 and the final order dated 30.3.1992 in CS Nos.366 and 367 of 1992, the decrees in terms of the awards and the declarations made by appellants on 31.3.1992. The oral evidence of defendants witnesses DW1 to DW4 unfolds a story, different from what was pleaded by them in their written statement. We may refer to the said evidence briefly. C. B. Sharma who was examined as DW-1 stated that the parties gave him the agreements dated 12.3.1992 appointing him as arbitrator, that as arbitrator he recorded the statements of the appellants and the respondents and on that basis, made the awards dated 13.3.1992. He states that appellants appeared before the companyrt and companysented to the award as per proceedings Ex.D4 dated 16.3.1992 and he identified them as their companynsel before the companyrt. On further questioning, he admitted that he was number aware about the transaction of sale and purchase between the parties or whether there was any dispute at all in regard to sale or purchase of land. He stated that the parties submitted an arbitration agreement in regard to a loan and that he gave the awards in regard to the loan and that the reference agreements dated 12.3.1992 were number in regard to any dispute relating to property number about the sale or purchase thereof number about specific performance of any agreement of sale and that the dispute was only in regard to money and he was number appointed as arbitrator to settle any dispute in regard to any land. He also stated that he did number charge any fee in regard to the arbitration or making the awards. DW2 - Ram Kumar, son of Furu Ram , power of attorney holder of defendants, stated that the agreement of sale in regard to 98 kanals 19 marlas was got executed for a companysideration of Rs.14 lakhs in favour of three sons of Furu Ram Ram Swaroop, Veer Singh and Ram Kumar and four sons of Kalu Ram Bhagat Ram, Jagir Singh, Ramesh Kumar and Lala Ram that Rs.One lakh was given as earnest money under agreement dated 18.10.1991 that there was a dispute in regard to the price and the dispute was decided by a panchayat companysisting of Chander Pal, Purushottam, Harbhajan, C. B. Sharma Advocate and Sudhir Sharma Advocate and Rs.15 lakhs was paid in cash in their presence to the appellants that after paying the money it was decided that a companyrt decree should be obtained in favour of the respondents and C.B. Sharma was then appointed as the arbitrator to obtain a decree that B. Sharma made the awards and decrees were obtained from the companyrt on the basis of the said awards. DW-3 - Sudhir Sharma who was the companynsel for the respondents stated that there was a dispute in regard to the sale price of the property agreed to be sold by appellants to respondents. There was a panchayat on 12.3.1992 where it was agreed that the sale price should be increased by Rs.200,000/-. In addition to the earnest money of Rs.100,000/-, earlier paid, another sum of Rs. fifteen lakhs was paid in cash by the defendants to the plaintiffs in full and final settlement before the members of the panchayat. The parties felt that the expenses of stamp duty and registration of sale deed would be high and agreed for an arbitration award and a decree in terms of it. The panchayat resolved the dispute at around 1.30 p.m. Both parties and B. Sharma thereafter came to his chamber. The agreements dated 12.3.1992 referring disputes to arbitration, were prepared by the arbitrator B. Sharma. The said agreements were signed by the parties in his Sudhir Sharmas office. The parties had also given their statements to C.B. Sharma in his office. The arbitrator made the awards on 13.3.1992. On the instructions of respondents Furu Ram and Kalu Ram , he filed the two suits under sections 14 17 of the Act for making decree in terms of the two awards in the sub-court on 16.3.1992. The owners of the land Ramesh Kumar and Naresh Kumar were impleaded as defendants 1 and 2 in the said two suits and the Arbitrator C.B. Sharma was impleaded as the third defendant. C.B. Sharma, represented defendants and 1 and 2 as their companynsel in the two suits. The companyrt recorded the statements of both parties. After the statements of the appellants defendants in those suits were recorded by the companyrt, they were identified by their companynsel C.B. Sharma. He stated in crossexamination that the payment of Rs.15 lakhs was made after the appellants made statements before companyrt agreeing for a decree in terms of awards. DW-4 Chander Pal Singh stated that he was instrumental in getting the parties to enter into the agreement of sale that dispute arose as respondents wanted to register sale deeds showing a lesser companysideration and appellants wanted the sale deed for the full companysideration that therefore a panchayat was companyveyed that he was present when the negotiations took place before the panchayat and settlement was reached by agreeing for a price of Rs.16 lakhs that Rs.15 lakhs was paid by Ram Kumar Power of Attorney Holder of respondents to appellants in the presence of Panchayat companysisting of himself, Purushottam, Harbhajan and Sudhir Sharma. Sudhir Sharma, companynsel for respondents got C.B.Sharma as Arbitrator to make an award. After the decrees were made in terms of the awards, he tore the receipt for Rs.15 lakhs given by appellants. The respondents version of what transpired as emerging from the evidence of their four witnesses DW1 to DW4 shorn of inconsistencies in the evidence can thus be summarized as follows The sale in terms of the agreement of sale dated 18.10.1991 did number take place, as the appellants unreasonably demanded an increase in price for executing the sale deed. The dispute was brought up before a panchayat. It was agreed before the panchayat that the respondents should pay a sum of Rs.15,00,000 in addition to earnest money of Rs.1,00,000/-, thereby increasing the price to Rs.16,00,000/- instead of Rs.14,22,000/-. The respondents paid the entire balance of Rs.15,00,000/- in cash in a lump sum to the appellants in the presence of the panchayat. To avoid the heavy expenditure towards stamp duty and registration charges for the sale deed, it was agreed that arbitration awards would be obtained in favour of respondents and the appellants would agree for decrees in terms of the awards, so as to companyfer title upon the respondents, instead of executing sale deeds. In pursuance of it, the parties entered into two agreements dated 12.3.1992 appointing C.B. Sharma, Advocate, as arbitrator. The said arbitrator recorded the statements of parties on 12.3.1992 and made awards dated 13.3.1992 declaring Furu Ram to be the owner in possession of 49 Kanals 10 Marlas of land and Kalu Ram to be the owner of 49 Kanals and 9 Marlas of land. Thereafter, Furu Ram and Kalu Ram filed petitions under sections 14 and 17 of the Arbitration Act, 1940 in the Court of the Senior Sub Judge, Kurukshetra praying that the awards in their favour be made the rule of the companyrt. By orders dated 30.3.1992 the companyrt directed decrees be drawn up in terms of the award. In pursuance of the decrees, Furu Ram and Kalu Ram also got the lands mutated to their names. The decrees dated 30.3.1992 in terms of the awards were valid and binding, and neither the decrees number the awards were fraudulent. We may number refer to the documentary evidence produced by the defendants - respondents, which narrate a companypletely different story. The reference agreements dated 12.3.1992, the statements recorded by the Arbitrator on 12.3.1992 and the awards dated 13.3.1992, all stated that appellants had borrowed Rs.8 lacs from Furu Ram and Rs.8 lacs from Kalu Ram in November 1991 and had agreed to repay the same with interest at the rate of 2 per month that as they were number able to repay the amounts borrowed with interest, they agreed to give 49 kanals 10 marlas of land to Furu Ram and 49 kanals 9 marlas of land to Kalu Ram and delivered possession and companyfirmed the same before the arbitrator. The arbitral awards stated that the disputes relating to payment of Rs.8 lacs with interest thereon were referred to the Arbitrator, that the appellants had admitted borrowing Rs.8 lacs from Furu Ram and Rs.8 lacs from Kalu Ram and further admitted that being unable to pay the said amount, had given 49 kanals 10 marlas of land to Furu Ram and 49 kanals 9 marlas of land to Kalu Ram and therefore, Furu Ram has become the owner of 49 Kanals and 10 Marlas of land and Kalu Ram had become the owner of 49 kanals and 9 marlas of land. The identical plaints dated 13.3.1992 in the two suits CS Nos.366- 367 of 1992 under sections 14 and 17 of the Arbitration Act, 1940 filed by Furu Ram and Kalu Ram read as under Application u s 14/17 of the Arbitration Act to make the award dated 13.3.1992 the rule of the companyrt. Sir, It is prayed as under- That the respondents number1 and 2 had borrowed a sum of Rs.8,00000/- from the applicant-plaintiff. That the respondents number1 and 2 failed to repay the amount and interest to applicant - plaintiff. That vide agreement dt.12-3-1992 the respondent number3 was appointed as Arbitrator to decide the matter. That the respondent number3 has decided the matter vide award dated 13- 3-1992. That the applicant - plaintiff has been declared as owner in possession of the property mentioned in the award enclosed herewith. That the applicant - plaintiff has been put in possession of the said property at the spot and is debarred from recovering the amount and interest from the respondents number1 and 2. That the respondents number1 and 2 have refused to admit the award. That the agreement and award were executed at Thanesar, Kurukshetra so this learned companyrt has got jurisdiction to try this application. That the required companyrt fees is paid on the application. It is, therefore, prayed that the award dated 13-3-1992 may kindly be made the rule of the companyrt whereby the plaintiff-applicant may kindly be declared as owner in possession of the land measuring 49 Kanals 10 Marlas detailed as under- Note The other plaint by Kalu Ram was identical except the extent which was 49 kanals 9 marlas and the description of the lands. The written statements were also filed on the same day the suits were filed, that is 16.3.1992. The written statements were number signed by either of the appellants but were signed by C.B. Sharma defendant number3 in those suits as advocate for the defendants 1 and 2 appellants . The brief written statements stated that paras 1 to 7 of the plaint were companyrect and admitted and that paras 8 and 9 were legal and that therefore the suit be decreed. The order-sheets dated 16.3.1992 in the said two suits, recorded that the appellants defendants 1 2 in the suits appeared and stated that they had numberobjection for decrees being made in terms of the award. The appellants signed the order-sheets and were identified by the arbitrator C.B. Sharma as their companynsel. The cases C.S.Nos.366 and 367 of 1992 thereafter came up before the learned Sr.Sub-Judge on 30.3.1992. The parties were number present. The orders of the companyrt dated 30.3.1992 in both suits were identical and they are extracted below Present Counsel for the parties. Heard. Since the parties are number at issue, so the award dated 13.3.1992 - Ex C1 is made the rule of the companyrt. Decree sheet be prepared accordingly and the award dated 13.3.1992 - Ex C1 shall form the part of the decree sheet. The file be companysigned to the record room. We find three different versions from the pleadings and evidence led by the respondents. The case set forth in their written statements was companypletely different from the case made out in the evidence of their witnesses DW1, DW2, DW3 and DW4. More interestingly, the case set forth in the written statements and the case made out in the oral evidence were companypletely different from what is stated in the documentary evidence. Let us refer to them briefly. The written statements filed by the respondents merely stated that the appellants did number execute the sale deed, on the date fixed for sale, as per agreement of sale dated 18.10.1991 and therefore, and the said dispute was referred to arbitration and awards were made by the arbitrator on the basis of their statements and decrees were made in terms of the award. The evidence of DW1 to DW4 was that appellants unreasonably demanded the price to be increased from Rs.14,22,000/- to Rs.16,00,000/-, that the resultant dispute was referred to Panchayat, that a price of Rs.16,00,000/- was agreed before the Panchayat on 12.3.1992, that immediately the respondents paid the balance of Rs.15,00,000/- in cash to the appellants in the presence of the panchayat, that the respondents felt that the stamp duty and registration expenses were high and that therefore, it was agreed on the suggestion of their companynsel that they should resort to the process of getting an arbitration award and decree to companyvey the title instead of execution of a sale deed. It was stated that C. B. Sharma was appointed as the arbitrator who made the awards and decrees were obtained in terms of the awards. The documentary evidence, that is the reference agreements, the statements recorded by the Arbitrator, the awards, the plaints in the suits under sections 14 and 17 of Arbitration Act, 1940, on the other hand do number refer to the agreement of sale or the payment of price. They showed that the appellants had borrowed Rs.8 lakhs from Furu Ram and Rs.8 lakhs from Kalu Ram, about four months prior to 12.3.1992, and had agreed to repay the same with interest at 2 per month that thereafter, Furu Ram and Kalu Ram demanded the money and the appellants were number in a position to repay the loans and therefore a dispute arose and that by mutual companysent, C.B. Sharma was appointed as an Arbitrator and parties agreed to be bound by his decision. The appellants allegedly made statements before C.B. Sharma Arbitrator admitting that they had taken Rs.8 lakhs from Furu Ram and Rs.8 lakhs from Kalu Ram as loans, agreeing to repay the same with interest at 2 per month, and that as they did number have the means to repay the same, they had given 49 Kanals 10 Marlas to Furu Ram and 49 Kanals 9 Marlas of land to Kalu Ram and also delivered possession of respective lands to Furu Ram and Kalu Ram. It is well settled that numberamount of evidence companytrary to the pleading can be relied on or accepted. In this case, there is variance and divergence between the pleading and documentary evidence, pleading and oral evidence and between the oral and documentary evidence. It is thus clear that the entire case of the respondents is liable to be rejected. The different versions clearly demonstration fraud and misrepresentation on the part of the respondents. The trial companyrt in its judgment in C.S.Nos.63 and 64 of 1997 inferred from the evidence of DW1 C.B. Sharma and DW3 Sudhir Sharma that appellants had knowledge of the full facts and circumstances of the cases filed under sections 14 and 17 of the Arbitration Act and that with such knowledge, they had filed written statements therein, admitting the facts and, therefore it companyld number be said that the judgments and decrees dated 30.3.1992 were obtained by misrepresentation and fraud. But the documentary evidence produced by the respondents clearly showed that in CS Nos. 366 and 367 of 1992, numbernotice summons were issued to defendants that appellants defendants 1 2 did number sign the written statements which admitted the plaint averments that the arbitrator who was the third defendant in those suits, very strangely appeared as advocate for defendants 1 and 2 appellants and signed the written statement and made a statement before the companyrt on 30.3.1992 that defendants did number have any objection to the awards. All this lends credence to the case of appellants that respondents had companyspired with DW1 and DW3 and got certain documents prepared and persuaded appellants who were barely literate, to give their companysent on 16.3.1992 by misrepresenting to them that they were giving companysent for giving their lands for cultivation to respondents for a period of one and half years as per the settlement. The trial companyrt ignored relevant evidence and drew a wrong inference that there was numberfraud or misrepresentation. Let us number refer to the fraudulent manner in which the orders were obtained from the Sr. Sub-Judge, Kurukshetra for making decrees in terms of the award. According to the evidence of respondents, the events took place as under Stage I 12.3.1992 Settlement before the Panchayat that appellants 12.3.1992 should sell the property to the respondents for Rs.16 lacs Decision of respondents to avoid stamp duty and 12.3.1992 registration charges and instead have an arbitration award through Advocate C. B. Sharma as arbitrator and then get decrees in terms of the awards Reference agreements prepared by CB Sharma for 12.3.1992 referring the dispute to himself The signing of the reference agreement by parties 12.3.1992 Statements of parties recorded by CB Sharma in 12.3.1992 the office of Sushil Sharma, Advocate for respondents wherein appellants companyfirmed that they had given the lands to respondents Stage II 13.3.1992 Awards made by the Arbitrator 13.3.1992 Plaints under sections 14 and 17 of Arbitration Act 13.3.1992 prepared by Sushil Sharma, on behalf of respondents Stage III 16.3.1992 CS Nos.366 and 367 of 1992 under sections 14 16.3.1992 and 17 of the Arbitration Act filed by respondents on Written statements in the said suits signed by C.B. 16.3.1992 Sharma as Advocate for appellants defendants in the suit filed on The statements of appellants that they were 16.3.1992 companysenting to the decree, recorded by the companyrt on Stage IV Orders made directing decrees being drawn up in 30.3.1992 terms of the award Undated declaration by appellants companyfirming that 31.3.1992 they had agreed for decrees in favour of Furu Ram and Kalu Ram attested by an Executive Magistrate with the endorsement I know Naresh Kumar and Ramesh Kumar and they have signed in my presence made by Sushil Sharma, advocate for respondents The above narration will show that even according to the evidence produced by the respondents the entire arbitration was sham and numberinal, that an alleged Panchayat had settled the dispute on 12.3.1992, that thereafter, Sushil Sharma, advocate for respondents and C.B. Sharma, an advocate who was made to act as an Arbitrator at the instance of respondents created a bunch of documents and obtained the signatures of the appellants and created proceedings for obtaining decrees in terms of the awards. C. B. Sharma was an advocate engaged by respondents through their companynsel Sushil Sharma, to make awards in their favour. On 12.3.1992, he is appointed as arbitrator. On 13.3.1992, he makes the awards and gives them to respondents. On 16.3.1992, he signs the written statements of defendants appellants herein in the proceedings under sections 14 and 17 of Arbitration Act, 1940 as their companynsel. Though he is the third defendant in the said two suits C.S. Nos.366 and 367 of 1992 , he appears as the companynsel for defendants 1 and 2 without their companysent or knowledge. On 30.3.1992, he makes a statement on behalf of defendants 1 and 2 that they have numberobjection for decrees being made. We fail to understand how a companynsel can do these things. His acts are fraudulent. We may next refer to the inconsistencies and improbabilities in the evidence. According to respondents, the appellants had refused to execute the sale deed, for the price of Rs.14,22,000/- and demanded an increase in the price that in the presence of a panchayat, an increase in price was agreed on 12.3.1992, and that the entire balance price of Rs.15,00,000/- was immediately paid in cash on 12.3.1992 in the presence of the panchayat. While DW2 says that Rs.15,00,000/- was paid in cash in the presence of the Panchayat. DW-3 Sudhir Sharma states that the payment was made after the appellants made a statement before the companyrt agreeing for a decree in terms of the awards, that is on 16.3.1992. Further, it is highly improbable that the respondents would have attended the Panchayat readily carrying Rs.15,00,000/- in cash and paid it immediately after the settlement. If the said evidence is accepted, the entire documentary evidence showing that two sums of Rs.800,00/- each were given as loans to appellants about four months prior to 12.3.1992 and the lands were given to respondents as appellants companyld number repay the same are proved to be false and fraudulent. We may next refer to the stamp fraud companymitted by respondents. According to the DW-1 to DW-4 under the agreement of sale dated 18.10.1991, the sale price agreed was Rs.14,22,000/-, that in the presence of a panchayat, there was a settlement and the price was increased to Rs.16,00,000 for 98 kanals 19 marlas of land, that the said price was paid half being the sale price in regard to an extent of 49 Kanals 10 marlas sold to Furu Ram and the remaining half being the sale price in regard to an extent of 49 Kanals 9 Marlas sold by appellants to Furu Ram and Kalu Ram. The respondents wanted to avoid payment of stamp duty and registration charges on the sale deeds. They were advised by their lawyer that they companyld get decrees from a civil companyrt in terms of an arbitration award so that sale deeds need number be executed and stamp duty and registration charges need number be paid. It was decided by the respondents on the advice of their lawyer to get arbitration awards declaring them as owners and also get companyrt decrees in terms of the awards. . On the same day 12.3.1992 their lawyer got reference agreements prepared through the arbitrator C.B. Sharma which were executed by the parties to get arbitration awards by companysent. In short the agreements, arbitration awards and decrees were sham and numberinal, the object of respondents being to evade the stamp duty and registration charges payable with respect to a sale deed, by obtaining decrees from the companyrt in terms of the awards which declared their title. Let us refer to another facet of such stamp fraud. There can be a reference to arbitration only if there is a dispute and there is an agreement to settle the dispute by arbitration. If the parties had already settled the disputes before a panchayat for sale of half of the property to Furu Ram and another half to Kalu Ram for a companysideration of Rs.8,00,000 plus Rs.8,00,000/-, and appellant had received the entire companysideration, and delivered possession, there was numberdispute between the parties, that companyld be referred to arbitration. The respondents, on the advice of their advocate Sudhir Sharma decided to have a numberinal and sham arbitration proceedings and awards by B. Sharma and get decrees made in terms of the awards, only to avoid stamp duty and registration charges. The entire procedure was fraudulent because i there was numberdispute between the parties ii there was numberreference of any dispute to arbitration iii the reference agreements dated 12.3.1992 were prepared and executed in pursuance of a pre-existing arrangement to have a companylusive awards iv the arbitrator was number required to decide any dispute between the parties, number was there any adjudication of the dispute by the arbitrator. DW-1 who claims to be the arbitrator clearly stated in his evidence, that the reference under the agreements dated 12.3.1992 was in regard to a dispute relating to loan of Rs.800,000/- advanced to each appellant. Therefore, the statements in the two awards that the reference agreements dated 12.3.1992 were in regard to a dispute in regard to the failure to repay the two loans of Rs.800,000/- each and interest thereon that the appellants admitted before the Arbitrator that they had borrowed Rs.8,00,000 from Furu Ram and Rs.8,00,000 from Kalu Ram that the appellants did number have the means to repay the same and that instead of repaying the amount with interest, that they had therefore given to Furu Ram an extent of 49 Kanals 10 Marlas and to Kalu Ram, 49 Kanals 9 marlas of land that Furu Ram and Kalu Ram companyfirmed that they had already taken the said lands in lieu of the amount due to them, are also false and at all events, sham averments to create two awards. The references to arbitration, the proceedings before the arbitrator, the awards of the arbitrator, and the proceedings in companyrt to get decrees in terms of the awards, and the decrees in terms of the award were all thus sham and bogus, the sole fraudulent object being to avoid payment of stamp duty and registration charges. The modus operandi adopted by the respondents to obtain title to lands without a companyveyance and without incurring the stamp duty and registration charges due in respect of a companyveyance by obtaining a sham and companylusive arbitration awards when there was numberdispute, and then obtaining a numberinal decree in terms of the said awards would be a fraud companymitted upon the companyrt and the state government by evading liability to pay the stamp duty and registration charges. The irregularities, illegalities, suppressions and misrepresentations which culminated in the orders dated 30.3.1992 in CS NOs.366 and 367 of 1992 directing that the awards dated 13.3.1992 be made decrees of the companyrt, show that the decrees in terms of the awards were obtained fraudulently. Normally, this Court would number interfere with a finding of fact relating to fraud and misrepresentation. But as material evidence produced by the defendants - respondents had been ignored and as the companyrts below failed to draw proper inferences therefrom and had ignored a cause of fraud, we are companystrained to interfere with reference to a question of fact. The suits were decreed by the trial companyrt on the ground that the decrees were null and void and all the reliefs sought were granted. When the decrees dated 30.3.1992 were held to be null and void, the question of plaintiffs challenging any other finding in the judgment did number arise. Therefore when the first appellate companyrt and High Court held that the decree was number null and void, the plaintiffs-appellants were entitled to urge all grounds to show that the entire transaction and arbitration proceedings were fraudulent and the decree was also a result of fraud. Be that as it may. Re Point iii Chapter III of Registration Act, 1908 relates to registrable documents. Section 17 enumerates the documents which are companypulsorily registrable and the exceptions to the categories of documents which are companypulsorily registrable. The relevant portions of the said sections are extracted below Documents of which registration is companypulsory The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877 or this Act came or companyes into force, namelyxxx xxx xxx b other number-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or companytingent, of the value of one hundred rupees, and upwards, to or in immovable property c number-testamentary instruments which acknowledge the receipt or payment of any companysideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest and Nothing in clauses b and c of sub-section 1 applies toxxx xxx xxx any decree or order of a companyrt except a decree or order expressed to be made on a companypromise, and companyprising immovable property other than that which is the subject-matter of the suit or proceeding. A reading of these provisions make the following position clear a any number-testamentary document purporting or operating to create, declare any right, title or interest in any immoveable property of the value of more than Rs.100 is companypulsorily registrable b that an order or decree of a companyrt is number companypulsorily registrable even if it purports or operates to create, declare any right, title or interest in any immoveable property of the value of more than Rs.100 c that if the decree or order of the companyrt is number rendered on merits, but expressed to be made on a companypromise and companyprises any immoveable property which was number the subject mater of the suit or proceeding, such order or decree is companypulsorily registrable and d that as clause iv of sub-section 2 of section 17 excludes decrees or orders of companyrt, but does number exclude awards of arbitrator, any arbitration award which purports or operates to create, declare any right, title or interest in any immoveable property of the value of more than Rs.100 is companypulsorily registrable. As numbericed above, the reference agreements dated 12.3.1992 were number in regard to any agreement of sale or any dispute relating to immoveable property, or in regard to the lands in regard to which the award was made. It did number refer to the lands in question. No dispute regarding immoveable property was referred to arbitration or was the subject matter of the arbitration. The alleged subject matter of arbitration was number-payment of Rs.8,00,000 said to have been borrowed by each of the appellants. The arbitrator recorded an alleged statement by the borrowers appellants that they had received Rs.8,00,000 from Furu Ram and Rs.8,00,000/- from Kalu Ram that they were number able to refund the same and therefore they had given lands measuring 49 Kanals 10 Marlas to Furu Ram and another 49 Kanals 9 Marlas to Kalu Ram and that Furu Ram and Kalu Ram companyfirmed that they had obtained possession of the said land. The awards therefore declared that Furu Ram and Kalu Ram had become the absolute owners of the lands in question. Thus the awards are clearly documents which purport or operate to create and declare a right, title or interest in an immoveable property of the value of more than Rs.100 which was number the subject of the dispute or reference to arbitration. Therefore the awards were companypulsorily registrable. If they were number registered, they companyld number be acted upon under section 49 of the Registration Act, 1908 number companyld a decree be passed in terms of such unregistered awards. Unregistered awards which are companypulsorily registrable under section 17 1 b companyld neither be admitted in evidence number can decrees be passed in terms of the same. In Ratan Lal Sharma vs. Purshottam Harit AIR 1974 SC 1066, this companyrt held So in express words it purports to create rights in immovable property worth above Rs.100/- in favour of the appellant. It would accordingly require registration under S.17, Registration Act. As it is unregistered, the Court companyld number look into it. If the companyrt companyld number, as we hold, look into it, the Court number pronounce judgment in accordance with it. Sec. 17, Arbitration Act presupposes an award which can be validly looked into by the Court. The appellant cannot successfully invoke Section 17 we are of opinion that the award requires registration and, number being registered is inadmissible in evidence for the purpose of pronouncing judgment in accordance with it. In Lachhman Dass vs. Ram Lal - 1989 3 SCC 99, this Court held In the present case the award declared that half share of ownership of the appellant to the lands in question shall number be owned by the respondent in addition to his half share in the lands. On a proper companystruction of the award, it is thus clear that the award did create, declare or assign a right, title and interest in the immovable property. It is number merely a declaration of the pre-existing right but creation of new right of the parties. Since the award affected the immovable property over Rs.100 it was required to be registered. An award affecting immovable property of the value of more than Rs.100 cannot be looked into by the companyrt for pronouncement upon the award on the application under Section 14 of the Arbitration Act unless the award is registered. As the companyrt companyld number look into the award, there is numberquestion of the companyrt passing a decree in accordance with the award and that point can also be taken when the award is sought to be enforced as the rule of the companyrt. The companyrts below have number companysidered or decided this aspect at all. Re Question iv If an award was number genuine, but was companylusive and sham, the companyrt will number and in fact can number make it a rule of the companyrt. As numbericed above, there should be a dispute, there should be an agreement to refer the dispute to arbitration, there should be reference to arbitration, there should be an adjudication or decision by the arbitrator after hearing parties, for a valid arbitration. If the parties had already settled their disputes and the arbitration award was only a ruse to avoid payment of stamp duty and registration with respect to a sale deed and declare a title in persons who did number have title earlier, then the entire proceedings is sham and bogus. In fact, C.B. Sharma was number really an arbitrator, number the proceedings before him were arbitration proceedings and the awards were number really arbitration awards.
K. PATNAIK, J. This is an appeal by special leave under Article 136 of the Constitution against the order dated 03.02.2005 of the Division Bench of the Andhra Pradesh High Court dismissing Writ Petition No.8072 of 2004 filed by the appellant. The facts very briefly are that the appellant, a general candidate number belonging to any reserved category, took the Civil Services Examination, 1998 companyducted by the Union Public Service Commission and he secured 95th rank and was appointed to the IPS and was allocated to the Manipur- Tripura Joint Cadre on 27.10.1999. Respondent No.4, who as an OBC candidate, also took the Civil Services Examination, 1998 and secured 133rd rank and was appointed to the IPS and was allocated to the Andhra Pradesh Cadre on 27.07.1999. The appellant filed O.A. No.155 of 2001 before the Central Administrative Tribunal, Hyderabad Bench, companytending that instead of respondent number4 he should have been allocated to the Andhra Pradesh Cadre and that the allocation of respondent number4 to the Andhra Pradesh Cadre was bad in law, unjust and unsustainable. The appellant prayed for a direction from the Tribunal to the respondent number1 to allocate him to the Andhra Pradesh Cadre. The Tribunal, however, did number find any irregularity in the roster system followed by the respondent number1 in making the allocations and by order dated 25.07.2001 dismissed the O.A. The appellant challenged the order dated 25.07.2001 of the Tribunal before the High Court under Article 226 of the Constitution in Writ Petition No.17902 of 2002 and companytended that though there was in the year 1999 a vacancy for a general candidate in the Andhra Pradesh Cadre to which the appellant companyld be allocated, this was companyverted to a vacancy for OBC candidate and the respondent number4 was allocated to this vacancy in the Andhra Pradesh Cadre. The appellant also companytended before the High Court that this vacancy for a general candidate was companyverted to a vacancy for OBC candidate on the ground that relevant data for five years in respect of OBC was number available though actually such data was available. Since this aspect of the matter had number been companysidered by the Tribunal, the High Court allowed the Writ Petition, set aside the order of the Tribunal and remanded the case to the Tribunal for fresh companysideration. After the case was remanded to the Tribunal, the respondent number1 filed a petition before the Tribunal seeking leave to file an additional affidavit and pursuant to leave granted by the Tribunal, the respondent number1 filed an additional affidavit. In this additional affidavit, the respondent number1 stated that a total number of 36 vacancies in the IPS were to be filled up on the basis of the Civil Services Examination, 1998 and out of total number of 36 vacancies, 21 vacancies were to be filled up by general candidates, 10 vacancies were to be filled up by OBC candidates and 5 vacancies were to be filled up by SC ST candidates in accordance with the reservation provisions and the roster points and in May 1999, the vacancies were distributed category-wise in the following manner- L Cadre Total 27 OBC 22.5 SC ST Genera vacan rounded off rounded off l -cies Andhra Pradesh 1 .27 0 .225 0 1 Assam 1 .27 0 .225 0 1 Meghalaya Bihar 1 .27 0 .225 0 1 Gujarat 3 .81 1 .675 1 1 Haryana 1 .27 0 .225 0 1 Himachal 1 .27 0 .225 0 1 Pradesh J K 3 .81 1 .675 1 1 Karnataka 3 .81 1 .675 1 1 Kerala 2 .54 1 .450 0 1 Madhya Pradesh 1 .27 0 .225 0 1 Maharashtra 1 .27 0 .225 0 1 Manipur Tripura 4 1.08 1 .900 1 2 Nagaland 2 .54 1 .450 0 1 Orissa 2 .54 1 .450 0 1 Punjab 1 .27 0 .225 0 1 Rajasthan 4 1.08 1 .900 1 2 Sikkim 1 .27 0 .225 0 1 Tamil Nadu 1 .27 0 .225 0 1 AGMU 1 .27 0 .225 0 1 Uttar Pradesh 1 .27 0 .225 0 1 West Bengal 1 .27 0 .225 0 1 Total 36 8 5 23 Respondent number1 further stated in the additional affidavit that since as per the distribution made in the aforesaid table, the total number of vacancies for general candidates worked out to be 23 instead of 21 and total number of vacancies for OBC candidates worked out to be 8 instead of 10, 2 vacancies for general candidates had to be companyverted to 2 vacancies for OBC candidates. The respondent number1 has also stated in the additional affidavit that as the relevant data for the last five years in respect of OBC candidates was number available with the respondent on 28.05.1999 when the entire exercise of allocation was companypleted and approved by the companypetent authority and the data for four years, i.e. from the Civil Services Examinations, 1994 to Civil Services Examinations, 1995, was available, the earlier advice of the Department of Personnel and Training in Annexure R-1 to the additional affidavit of the respondent number1 was followed and two general vacancies from the first two States in the alphabetical order, one from the Andhra Pradesh Cadre and one from the Assam-Meghalaya Joint Cadre, were companyverted to OBC vacancies and the result was that respondent number4 was allocated to the OBC vacancy of Andhra Pradesh Cadre. The Tribunal in its order dated 09.01.2004 accepted this explanation of the respondent number1 and rejected the argument of the appellant that the respondent number1 had arbitrarily taken a lower ranking candidate in preference to high ranking general candidate while making the allocation to the Andhra Pradesh Cadre. Aggrieved, the appellant filed Writ Petition No.8072 of 2004 before the Andhra Pradesh High Court and companytended that despite availability of data pertaining to OBC candidates for five years, the respondent number1 did number companysider the same while making the allocation. In the impugned order, however, the High Court held that this apprehension of the appellant was factually without any basis and did number find any fault with the order of the Tribunal. In the impugned order, the High Court also took the view that the appellant was required to implead all the candidates of his batch of IPS, as respondents in the O.A. as well as in the Writ Petition but had number done so and thus relief companyld number be granted to the appellant. The High Court further held in the impugned order that the allocation of the appellant to the Manipur-Tripura Joint Cadre was intimated to him by a letter dated 21.10.1999, but he filed the O.A. in 2001 and by the time the impugned order was passed, the officers would have undergone attachment training and a wholesale or extensive review of the cadre allocation at a belated stage would number be companyducive to public interest. Mr. Ranjit Kumar, learned companynsel for the appellant, submitted that this Court has held in R. Sabharwal and Others v. State of Punjab and thers 1995 2 SCC 745 that the prescribed percentage of reservation of posts for backward classes cannot be varied or changed. He submitted that in M. Nagaraj v. Union of India 2006 8 SCC 212 a Constitution Bench of this Court has further observed that the reservation provision should number lead to excessiveness so as to breach the ceiling limit of the reserved quota. He submitted that the Secretary, Government of India, Ministry of Personnel Training Administrative Reforms and Public Grievances, has in his letter dated 31.05.1985 hereinafter referred to as the letter dated 31.05.1985 laid down the broad principles of allocation on the basis of roster system which are to be followed while making allocation of officers appointed to All India Services and a reading of these principles of allocation would show that the vacancies are to be reserved in various cadres according to prescribed percentage and, therefore, the prescribed percentage of reservation including that of OBC cannot be exceeded. He submitted that in Union of India v. Rajiv Yadav, IAS and Others 1994 6 SCC 38 this Court, after examining the principles of cadre allocation in the letter dated 31.05.1985, held that the Roster System ensures equitable treatment to both the general candidates and the reserved categories. He referred to the Chart annexed as Annexure P/19 to show that the percentage of OBC candidates allocated to the Andhra Pradesh Cadre from Civil Services Examination 1994 to 1998 was as high as 33 which was far in excess of the 27 reservation in favour of OBC. He vehemently argued that the Chart in Annexure P/19 further shows that in various other State cadres the total percentage of OBC candidates allocated from the Civil Services Examinations of 1994 to 1998 was less than 27 and, therefore, the respondent number1 should number have companyverted the vacancy for general candidate in Andhra Pradesh Cadre to a vacancy for OBC candidate. According to Mr. Ranjit Kumar, since there is breach of the principles of allocation and the roster system as laid down in the letter dated 31.05.1985 and the allocation of respondent number4 to the Andhra Pradesh Cadre was in excess of the 27 quota for OBC, this is a fit case in which this Court should quash the allocation of the respondent number4 and instead direct respondent number1 to allocate the appellant to the Andhra Pradesh Cadre. Mr. Mohan Parasaran, learned Additional Solicitor General, on the other hand, submitted that the impugned order of the Tribunal should number be disturbed as it companytains good reasons for number interfereing in the allocation of the officers of the 1999 batch of IPS. He submitted that while distributing the vacancies in an All India Service, the Central Government has to companysider plurality of choices and allocating two OBC vacancies to the cadres of States which were first two in the alphabetical order is one of the choices open to the Central Government when relevant data for the last five years in respect of the OBC candidates was number available when the exercise of allocation was companypleted and approved by the companypetent authority. He submitted that the decision of this Court in R. K. Sabharwal and Others v. State of Punjab and Others supra , cited by Mr. Ranjit Kumar, relates to maintenance of roster for the purpose of reservation of posts and may have relevance for the appointment to the IPS but has numberrelevance to allocation of members of the All India Service to different cadres after their appointment. Mr. Neeraj Kumar Jain, learned companynsel appearing for respondent number4, companytended that the equitable distribution of vacancies for general candidates and reserved candidates is required to be ensured by the letter dated 31.05.1985 over a period of time and number every time the allocation is made to a cadre and thus the companytention of the appellant that the allocation of the respondent number4 to the Andhra Pradesh Cadre has number ensured such equitable distribution is number companyrect. He further submitted that in any case the allocations of respondent number4 to the Andhra Pradesh Cadre and the appellant to the Manipur-Tripura Cadre were made as far back as in the year 1999 and the appellant filed the O.A. after two years in 2001 and that too after he accepted the allocation and the High Court rightly held that the allocation made in the year 1999 companyld number be disturbed by a challenge to the allocations in 2001. He finally submitted that respondent number4 has been working in the Andhra Pradesh Cadre since 1999 and should number be disturbed at this stage by this Court. We have companysidered the submissions of the learned companynsel for the parties and we find that Rule 3 of the IPS Cadre Rules, 1954 provides that each State and a group of States will have a State cadre or Joint Cadre respectively of the IPS and Rule 5 of the Cadre Rules provides that the Central Government in companysultation with the State Government or State Governments companycerned has the power to make allocation of IPS officers to various cadres. We further find that in Para 3 of the letter dated 31.05.1985 the broad principles which are to be followed for allocation on the basis of roster system have been indicated by the Central Government. Clauses 2 of Para 3, on which Mr. Ranjit Kumar placed reliance, is extracted hereinbelow- The vacancies for Scheduled Castes and Scheduled Tribes will be reserved in the various cadres according to the prescribed percentage. For purpose of this reservation, Scheduled Castes and Scheduled Tribes will be grouped together and the percentage will be added. Distribution of reserved vacancies in each cadre between outsiders and insiders will be done in the ratio This ratio will be operationalised by following a cycle outsider, insider, outsider as is done in the case of general candidates. It will be clear from Clause 2 of Para 3 of the letter dated 31.05.1985 that the vacancies for Scheduled Castes and Scheduled Tribes are to be reserved in the various cadres according to the prescribed percentage and distribution of reserved vacancies in each cadre between outsiders and insiders are to be done in the ratio of 21 and this ratio is to be operationalised by following a cycle outsider, insider, outsider as is done in the cases of general candidates. What is, therefore, companytemplated by Clause 2 of Para 3 of the letter dated 31.05.1985 is that a roster for each cadre, with vacancies earmarked for outsider and insider and for general candidates and reserved candidates is maintained and allocations of outsider, insider, general and reserved candidates are made to these earmarked vacancies. It will be further clear from Clause 2 of Para 3 that the vacancies for the reserved categories are number to exceed the prescribed percentage for the reserved category in the various cadres. The case of the respondent number1 in the additional affidavit filed before the Tribunal was that in accordance with the reservation provisions and the roster points as explained by this Court in R. K. Sabharwal and Others v. State of Punjab and Others supra , 36 candidates were selected to the IPS, out of whom 21 were general candidates, 10 were OBC candidates and 5 were SC ST candidates. These 36 candidates were to be allocated to the different State and Joint Cadres and were initially proposed to be distributed in May, 1999 in the manner given in the Chart in Para 3 of this judgment, but the authorities found that by distribution of vacancies, only 8 out of 10 selected OBC candidates companyld be accommodated in the different cadres and 23 instead of 21 selected general candidates would get accommodated in the different cadres. It was, therefore, necessary for the companypetent authority to increase 2 vacancies to adjust 2 more OBC candidates and reduce 2 vacancies proposed for general candidates so that ultimately the 10 OBC candidates companyld be allocated to 10 vacancies in different cadres and 21 general candidates companyld be allocated to 21 vacancies in different cadres. The companypetent authority accordingly diverted two vacancies for general candidates, one from the Andhra Pradesh Cadre and one from the Assam- Meghalaya Joint Cadre, to vacancies for accommodating two more OBC candidates selected for appointment. The reason for choosing the Andhra Pradesh Cadre and the Assam-Meghalaya Joint Cadre for companyverting two vacancies for general candidates to vacancies for OBC candidates is that when the allocation was finalized by the companypetent authority on 28.05.1999, relevant data in respect of OBC candidates was available only for four years, i.e. from Civil Services Examination, 1994 to Civil Services Examination, 1997, but was number available for the fifth year because allocation for the fifth year on the basis of Civil Services Examination, 1998 was yet to be numberified and ultimately got numberified in October, 1999. Respondent No.1 has further explained in his additional affidavit filed before the Tribunal that the Andhra Pradesh Cadre and the Assam-Meghalaya Joint Cadre were chosen for diversion of the two vacancies for accommodating two OBC candidates in accordance with an earlier advice of the Department of Personnel and Training annexed to the affidavit is Annexure R-1 to follow the alphabetical order while choosing the States for decrease or increase in OBC vacancies in the absence of data for 5 years in relation to OBC allocation. We fail to appreciate how data for 5 years in respect of allocation of OBC candidates was relevant for making the allocation when Clause 2 of Para 3 of the letter dated 31.05.1985 required that a roster in each cadre with vacancies for insider, outsider, general and reserved candidates number exceeding prescribed percentage was required to be maintained and allocations of candidates selected in the All India Services were to be made in these vacancies earmarked for insider, outsider, general candidates or reserved candidates. As has been held by this Court in Union of India v. Rajiv Yadav, IAS and Others supra , the roster system ensures equitable treatment to both the general candidates and reserved candidates and hence the roster system cannot be by-passed on some ground or the other which may result in unfair treatment to either general candidates or reserved candidates in violation of their right to equality under Articles 14 and 16 1 of the Constitution. Nonetheless, we find that the appellant was allocated to the Manipur-Tripura Cadre on 27.07.1999 and was intimated about such allocation by letter dated 02.10.1999. Instead of challenging the allocations made in 1999 at the earliest, the appellant filed the O.A. before the Tribunal only in 2001 by which time the 36 candidates including the respondent number4, who had been selected and appointed to the IPS on the basis of Civil Services Examination, 1998 and had been allocated to different cadres, had already joined their respective cadres and undertaken training in their respective States.
The Judgment of the Court was delivered by KULDIP SINGH, J.- The appellants and Respondents 3 to 5, in the appeal herein, joined service as Lower Division Clerks LDCS in the office of the Commissioner and Special Officer, Vijayawada Municipality, Vijayawada in the State of Andhra Pradesh. The Director of Municipal Administration, Government of Andhra Pradesh exercising the powers delegated to him under Section 73 3 of the Andhra Pradesh Municipal Act, 1965 the Act accorded sanction by his order dated August 6, 1977 for the companyversion and upgradation of the ten posts of LDCs to that of Upper Division Clerks UDC in the Municipality at Vijayawada. The Panel Committee of the Municipality prepared a panel on October 13, 1977 of LDCs for the purpose of promotion to the post of UDCS. The appellants were included in the said panel. Since Respondents 3 to 5 were number eligible their names were number included in the panel. Appellants I to 6 were promoted, by the order dated October 15, 1977, as UDCs against the newly created posts. Appellants 7 to 13 were also promoted as UDCs on October 17, 1977 against leave vacancies. It is thus obvious that appellants I to 6 were promoted against substantive vacancies whereas appellants 7 to 13 were promoted against the leave vacancies. One S. Koti Suryaprakasa Rao Chowdary sent a representation to the Government, wherein it was stated that the Director of Municipal Administration had numberjurisdiction to upgrade the posts of LDCs to UDCs by his order dated August 6, 1977. The Government by its memorandum dated January 24, 1978 called for the report of the Director in the following terms The Director of Municipal Administration is requested to examine this point and submit a detailed report to the Government at a very early date. He is also requested number to give any directions in this regard, to the Commissioner of the Vijayawada Municipality until the Government gives permission for upgradation of the posts of Revenue Inspectors to Upper Division Cadre. On receipt of the above said memorandum the Director downgraded the ten posts - earlier upgraded by him - and as a companysequence reverted the appellants as LDCs by the order dated January 30, 1978. It seems that the matter remained under the companysideration of the Government for quite some time and finally on December 18, 1978 the Government approved the order of the Director dated August 6, 1977 by which ten posts of LDCs were companyverted and upgraded to UDCS. Thereafter by the order dated December 20, 1978 the appellants were again promoted as UDCS. Respondents 3 to 5 challenged the order dated December 20, 1978 before the Andhra Pradesh Administrative Tribunal, inter alia, on the ground that on December 20, 1978 the respondents were eligible for promotion as UDCs but they were number companysidered. The Tribunal by its judgment dated April 9, 1984 allowed the petition and quashed the order dated December 20, 1978 promoting the appellants as UDCS. This appeal by way of special leave - is against the judgment of the Tribunal. It is number disputed that promotion as UDCs from amongst the LDCs is made from a panel prepared by a companymittee companystituted under Section 74 of the Act. Rule 21 of the Andhra Pradesh Municipal Employees Service Rules provides that when candidates are required for employment in any post in a unit preference shall be given to persons discharged or reverted from such posts in the unit The post of UDC under the Rules is a selection post and as such promotion to the said post is made on the basis of qualifications and merit. Seniority is taken into companysideration only where the qualifications and merit are proximately equal. Every appointment under the Rules is subject to probation for a period of two years on duty within a companytinuous period of three years. It is further provided that a LDC who has rendered satisfactory service for a total period of number less than three years in the lower division is number required to undergo the probation in the post of UDC. It would be useful to reproduce the operative part of the order dated December 20, 1978 which is as under The Government in their orders cited have accorded sanction for upgrading of ten LDRI posts to that of UDRI posts. Therefore all the ten posts of LDRIs are upgraded into that of UDRI posts for a period of one year with immediate effect. The following postings are made to the above upgraded RI posts. The following persons are in the panel of UDCs and are probationers awaiting for reappointment. The main companytention raised before the Tribunal on behalf of Respondents 3 to 5 was that numbere of the appellants were probationers awaiting for reappointment and as such the provisions of Rule 21 of the Rules were number applicable to them. The precise argument advanced before the Tribunal was that Respondents 3 to 5 being senior to the appellants in the cadre of LDCs and despite being eligible - were arbitrarily left out and the appellants were promoted without companysidering the cases of the respondents. The Tribunal accepted the companytention, set aside the promotion of the appellants on the following reasoning In this companytext the learned Advocate for Respondents 3 to 15 companyceded that Rule 21 of the Municipal Employees Service Rules, has in the companytext of Rule 17 to which there is a reference in that rule, to be interpreted as applicable only to whom Rule 17 is applicable which includes permanent officers or servants who have number companypleted 30 years of service, approved probationers and probationers. It was on this basis that the learned Advocate had companytended that probationers who had been discharged from a post for want of a vacancy, cannot be treated as being similarly situated as persons who had number been appointed to the post at all and as such companyld be given preferential treatment without violating Articles 14 and 16 of the Constitution. In my opinion, before examining the validity of Rule 21 of the Municipal Employees Service Rules, it would first be necessary in this case to decide the question whether any of the Respondents 3 to 15 companyld really be treated as probationers awaiting reappointment. As pointed out by the learned Advocate for the petitioners numbere of these respondents had been specifically placed on probation and there is numbersuch mention in the orders of their initial appointments. It is only subsequently in their fresh appointment order dated December 20, 1978 that these respondents have been described as probationers awaiting reappointment. Respondents 3 to 8 were appointed in the vacancies of the posts of LDC which were upgraded temporarily to that of UDC. Respondents 9 to 15 were appointed as UDCs only in temporary leave vacancies. In view of this I agree with the learned Advocate for the petitioners that there was numberquestion of appointing any of them on probation and therefore these persons cannot be treated as probationers awaiting reappointment. Even the learned Advocate for Respondents 3 to 15 has companyceded that Rule 21 companyld be companysidered to be applicable generally to any persons who had been appointed earlier to higher posts, but to persons who had been so appointed on probation and who were either probationers or approved probationers in posts from which they had been earlier discharged or reverted for want of vacancy. Hence it has to be held that even in accordance with the interpretation of Rule 21 by the learned Advocate representing Respondents 3 to 15 those respondents are number entitled to get the benefit of companycession given in that rule, since they cannot be companysidered to be probationers awaiting appointment. Consequently the appointment of Respondents 3 to 15 to the posts of UDCs on the ground of their alleged eligibility for preferential treatment on the basis of Rule 21 of A.P. Municipal Employees Service Rules, has to be held as vitiated and the impugned proceedings CI-22744/77, dated December 20, 1978 appointing them as UDCs have to be held as illegal. The impugned proceedings dated December 20, 1978 issued by Respondent 1 are therefore set aside. Appellants I to 6 were promoted as UDCs by the order dated October 15, 1977 to the posts which were created by the order dated August 6, 1977 issued by the Director, Municipal Administration, Andhra Pradesh. The order did number mention that the posts were being created temporarily or for a limited period. Similarly, the order dated October 15, 1977 promoting appellants I to 6 did number mention that the said promotions were temporary or on ad hoc basis. The appointment order clearly mentioned that appellants 1 to 6 were placed in the panel for promotion as UDCs by the Panel Committee by its Resolution No. 17 dated October 13, 1977 and as such they were being promoted and appointed as UDCs against the upgraded posts. We have numberhesitation in holding that the promotion of appellants 1 to 6 on October 15, 1977 was regular promotion in accordance with the Rules. Admittedly, Respondents 3 to 5, having number passed the requisite test, were number eligible to be companysidered for promotion in the year 1977. Since appellants I to 6 had already rendered satisfactory service in the lower division for more than three years they were number required to undergo the probation prescribed under the Rules. In any case their promotion being on regular basis they would be treated to be probationers for the purposes of Rule 21 read with Rule 17 of the Rules. Appellants I to 6 were reverted because the posts were downgraded by the Director. They were again promoted by the order dated December 20, 1978. Although Respondents 3 to 5 bad become eligible to be companysidered for promotion in December 1978, they companyld number have been promoted despite they being senior to the appellants - for two reasons. They had number been brought on promotion-panel by the Panel Committee under Section 74 of the Act and secondly, the appellants being probationers awaiting for reappointment were entitled to preference under Rule 21 of the Rules. We are, therefore, of the view that the Tribunal fell into patent error in setting aside the promotion order dated October 20, 1978 to the extent it related to petitioners I to 6. The order of the Tribunal is thus liable to be set aside. So far as appellants 7 to 13 are companycerned they cannot be equated with appellants I to 6. These appellants were promoted against leave vacancies. They had numberright to hold the posts. They cannot be companysidered to be probationers for the purpose of Rule 21. It is number disputed that appellants 7 to 13 were reverted from the posts of UDCs which they were holding against leave vacancies. They were number probationers awaiting for reappointment under the Rules. They companyld number be promoted again on December 20, 1978 without companysidering Respondents 3 to 5 who were admittedly senior to them. A fresh panel should have been drawn up by the Panel Committee by companysidering appellants 7 to 13, Respondents 3 to 5 and other eligible LDCS. We are, therefore, of the view that numberfault can be found with the judgment of the Tribunal to the extent that Respondents 3 to 5 should have been companysidered for promotion along with appellants 7 to 13. We allow the appeal, set aside the impugned judgment of the Tribunal and direct as under The promotion of appellants I to 6 was rightly and legally made by the order dated December 20, 1978 and they shall rank senior to Respondents 3 to 5 in the cadre of UDCs. Appellants 7 to 13 have been holding the posts of UDCs since their promotion under the interim orders of this Court. We, therefore, are number inclined to set aside the order of their promotion dated December 20, 1978.
Leave granted. Heard on merits. A suit for specific performance was filed by the respondent, M s lyengar Consultancy Services Pvt. Ltd., against the appellant United Commercial Bank in the Delhi High Court. The suit was listed on 29-7-1988 for filing documents and their admission or denial, when the defendant- Bank remained absent. It was Arising out of SLP Civil No. 13246 of 1992 then listed before the learned Single Judge of the High Court on 12-8-1988, when the defendant was again absent. The learned Single Judge proceeded ex parte against the defendant on that date and the suit was then listed on 9-9- 1988 as a short-cause for final disposal. On that day also, numbere appeared for the defendant in the suit. Accordingly, the learned Single Judge decreed the suit ex parte on that date. Thereafter on 9-10-1988, an application for setting aside the ex parte decree was made under Order IX Rule XIII CPC by the defendant-Banks companynsel Shri A.N. Tewari, supported by his own affidavit. That application was dismissed by the learned Single Judge on 6-7-1989. Thereafter, a review application was filed by Shri A.N. Tewari, which too was dismissed on 31-7-1991. It was only thereafter that the defendant-Bank learnt of the ex parte decree passed against it. Accordingly, it filed an appeal before the Division Bench of the High Court through another companynsel on 30-4-1992 against the orders dismissing the application for setting aside the ex parte decree as well as the review application. This appeal was dismissed on 23-9- 1992 by the Division Bench as time barred as well as on merits. Hence this appeal by special leave.
F. Nariman, J. These appeals involve an interpretation of the provisions of the Maharashtra Mathadi, Hamal and Other Manual Workers Regulation of Employment and Welfare Act, 1969, hereinafter referred to as the 1969 Act read with the Grocery Markets or Shops Unprotected Workers Regulation of Employment and Welfare Scheme, 1970 hereinafter referred to as the 1970 Scheme . The brief facts necessary for a decision in Civil Appeal No.10000 Of 2010 Supreme Petro-Chem Limited v. State of Maharashtra and others are that under Section 5 of the said 1969 Act, if any question arises whether any scheme applies to any class of unprotected workers, the matter shall be referred to the State Government and the decision of the State Government which shall be taken after companysulting the Advisory Committee companystituted under Section 14 shall be final. By an order dated 24.6.2008, the State Government after referring to submissions from the appellants as well as submissions from the Board, held- Govt has analyzed overall situation, documents application of the organization dated 01.03.2003 and information about the product and its raw material. Govt has companye to the following companyclusion Company is manufacturing Polystyrene. For manufacturing styrene and Polybutadin are used as raw material. Polybutadin companyes in rubber form and it is number natural rubber. Polystyrene is a hard plastic. Polystyrene is number a petrochemical product but a chemical product. Even Polystyrene manufacturing is companysidered as petrochemical production it is finally a chemical production only. The material used to manufacture the product is also chemical. There is numberwritten reference in the Mathadi Act that petrochemical should be kept out of the act but chemical itself includes everything. Mathadi Act and scheme is for the betterment of workers and purpose of the scheme is to make applicable to the chemical manufacturing companypanies. It is number mentioned in the scheme that petrochemical products should be excluded and as petrochemical is number mentioned in the scheme so the scheme is number applicable to the said organization is number acceptable. In the situation Samitte and Govt. has companye to the companyclusion that Grocery market and shops unprotected workers Regulation of Employment and Welfare Act 1970 is applicable to Supreme Petrochem Ltd. In the companypany loading unloading work of chemical product and its raw material is carried out. And with respect to this Mathadi kind of work is carried out in the companypany. As said by the companypany this work is carried out by two Cooperative societies. These societies do the work by employing the workers and get companypensation from the companypany. Company says that these employees get the facilities like Provident fund and others. But in the report filed by the mandal on 20.09.2006 this statement has number been proved. As per the decision given by Hon. High Court in 2006 3 CLR PG 999, there is numbermeaning to what companypany is saying. Instead of that it proves that in the said companypany Mathadi kind of work carries out. In this situation Maharashtra Mathadi Hamal and other Manual Workers Regulation of Employment and Welfare Act 1969, Grocery Markets or Shops Unprotected Workers Regulation of employment and welfare Scheme 1970 is applicable to the said organization. Therefore, application given under section 5 of Mathadi Act is rejected by the Government. The said order was challenged before the Bombay High Court by filing a writ petition. The writ petition was dismissed by the impugned judgment dated 10.2.2009 after holding- It is rather difficult to digest the arguments of the learned companynsel. Basically, what we find is that the petitioners are manufacturing polysterene and polysterene is a companybination of styrene and polybutadin. Polybutadin companyes in rubber form and is number a petrochemical though it is number a natural rubber. Styrene is one of the by-product of the petrochemical which is used by the petitioner for manufacturing polysterene. Therefore, the petitioners are number manufacturing any petrochemicals, but one of the by-product of the petrochemical is used by the petitioners to manufacture polysterene and polysterene is hard plastic. All these aspects have been companysidered by the Government authorities and thereafter the authorities companycluded that the petitioners are number dealing with petrochemicals as they have submitted. We agree with the findings of the authority. Assuming for a moment that the petitioners are dealing in petrochemicals, yet the Act will be applicable to them because the words used in this application clause referred to above is the product including the manures and thereby, every type of production has been companyered. What is important to numbere is that the manures which are like urea etc. are also derivatives of the petrochemicals and thereby by inclusive clause the manures which companyld have been saved probably have been included there. Therefore, the word product has been used by the Legislature in its wisdom with all its companynate variations and it cannot be interpreted to have a limited meaning. What we find is that the petrochemical is a part of the chemical. Chemical is the genesis while petrochemical is species of the said genesis and thereby if the chemical industry is companyered it is rather difficult to hold that the petrochemical industries are number companyered. What is important to be looked into is whether in this industry the work which the mathadis are carrying out is available or number. If, in that industry, the work of mathadis is available then only because the industry is dealing in some different aspect, that work cannot be given to some other unorganized workers. The basic test, after having ascertained that the industry is companyered by law, is to find out that the work of mathadis is available and if it is available, the Act and the Scheme will apply to the industry. It is number disputed that the mathadi work is number available. The only distinction which was tried to be made out was with regard to petrochemicals and that, therefore, the Act is number applicable, which submission we have already rejected for the reasons stated above. We find that the Government has rightly decided the matter under Section 5 and numberinterference is called for at the hands of this companyrt. Shri J.P. Cama, learned senior advocate appearing on behalf of the appellants has argued that the 1969 Act only applies to employments that are specified in the Schedule. Inasmuch as grocery markets or shops are mentioned in Item 4 of the Schedule, according to learned companynsel, employment in factories which occurs only in Item 5 of the said Schedule companyld number possibly be attracted as Item 5 only speaks of establishments which are number companyered by any other entries in the Schedule. Inasmuch as the 1970 Scheme in the present case is a scheme dealing with employment in grocery markets or shops, Item 5 of the Schedule is number attracted, and the 1970 Scheme is ultra vires the 1969 Act insofar as it provides for employment in factories which manufacture chemical products and are companyered by entry 5 of the Schedule to the said 1969 Act. He also referred to Section 1 4A of the 1969 Act to state that insofar as employment in factories in district Raigad are companycerned, item 5 in companyumn 4 of the table appended to Section 1 4A speaks of companyour chemicals and products including fertilizers, and number chemical products. This being so, chemical products in any case are outside Section 1 4A , and the 1970 Scheme insofar as it purports to include within it under clause 2 1 f chemical products, is therefore ultra vires Section 1 4A . Further, according to learned companynsel, what is allegedly manufactured in the appellants factory are petro chemicals and number chemicals. He has referred to a number of documents which include various licences and letters from authorities clearly stating that what is manufactured in the appellants factory are only petro chemicals. For that reason also, petro chemicals number being chemicals would number be within the companyerage of the 1969 Act or the 1970 Scheme. He further argued, referring to Section 4 1 b of the 1969 Act that if the 1970 Scheme is to be made applicable to petro chemicals manufactured in factories, the only method of doing so is if a demand or request is made by a majority of the employers or workers that the provisions of the grocery markets or shops scheme should be applied to another scheduled employment that is, manufacturing petro chemicals in factories, and it is only after companysultation with the employers and workers that the State Government may apply the provisions of the 1970 Scheme to the appellants factory manufacturing petro chemicals. This number having been done, the 1970 Scheme cannot apply to the appellant. Learned companynsel further argued that in point of fact there is numberwork of transportation undertaken by the employer from the employers factory to the purchasers premises. He argued that the factory was by and large mechanised and that the petro chemical products manufactured at the factory were picked up by purchasers by employing companytract labour that was arranged by the purchasers themselves. This being so, the 1969 Act and the 1970 Scheme would have numberapplication to the appellants factory. Shri S. Chinchwadkar, learned advocate appearing on behalf of the respondent-Board has companyntered each of the arguments of Mr. Cama. According to Shri Chinchwadkar Entry 5 appearing in the Schedule to the 1969 Act is a residuary entry which takes in all employments number otherwise companyered by any scheme under any of the other items of the Schedule, and as petro chemicals manufactured in factories were admittedly number companyered by any of the other items, they would fall within the residuary entry. Further, according to learned companynsel, the numberenclature of the scheme is irrelevant so long as the provisions of the 1970 Scheme actually companyer the appellants activities carried out in factories. He further argued referring to Sections 3 and 4 of the 1969 Act that there can be a companyposite scheme in which several scheduled employments or groups of employments can be bunched together, which has been done in the present case. He also argued with reference to Section 1 4A that item 5 in companyumn 4 when it referred to products including fertilizers would include all products including chemical products, and that therefore the 1970 Scheme is intra vires the 1969 Act. He also referred to the State Government order, which was impugned before the High Court and upheld, in order to show that the State Government had applied its mind under Section 5 of the 1969 Act, and that such order should number be interfered with in the exercise of judicial review under Article 226 of the Constitution. He also referred us to the definition of establishment companytained in section 2 4 which would mean any place or premises including the precincts thereof in which any scheduled employment is being carried on. According to him, inasmuch as lifting of the appellants product was being carried on from the precincts of the factory, the appellant would be companyered by the 1969 Act and the 1970 Scheme. He also referred in some detail to Bhuwalka Steel Industries Limited v. Bombay Iron Steel Labour Board, 2010 2 SCC 273 to buttress his proposition that this Court, following the Full Bench of the Bombay High Court, has companystrued the 1969 Act as a welfare legislation, and having regard to its object has expressly stated that employers should realise their social obligations qua this segment of workers who are number-protected workers, as defined by the said Act. We have heard learned companynsel for the parties. Before entering into the merits of the companytroversy before us, we would like to set out the relevant provisions of the 1969 Act and the 1970 Scheme made thereunder. The long title of the 1969 Act is important in that it sets out the object for which the 1969 Act was enacted, and is as follows- An Act for regulating the employment of unprotected manual workers employed in certain employments in the State of Maharashtra to make provision for their adequate supply and proper and full utilization in such employments, and for matters companynected therewith. WHEREAS, it is expedient to regulate the employment of unprotected manual workers such as, Mathadi, Hamal etc., engaged in certain employments, to make better provision for their terms and companyditions of employments, to provide for their welfare, and for health and safety measures where such employments require these measures to make provision for ensuring an adequate supply to, and full and proper utilization of, such workers in such employments to prevent avoidable unemployment for these and similar purposes, to provide for the establishment of Boards in respect of these employments and where necessary in the different areas of the State and to provide for purpose companynected with the matters aforesaid It is hereby enacted in the Twentieth Year of the Republic of India as follows - The Sections of the Act relevant for deciding these appeals are set out hereinbelow and read as follows Short title, extent, application and companymencement. It applies to the employments specified in the Schedule hereto. 4A Notwithstanding anything companytained in sub-section 4 , and in Government Notification, Industries and Labour Department, No. UMA. 1272/Lab-IV, dated the 28th March 1972, this Act shall be deemed to have companye into force in the areas specified in companyumn 2 of the Table below on the dates and in respect of the employments specified in companyumns specified in companyumns 3 and 4 against each such areas in the said Table, respectively. TABLE Sl. Areas Date Name of the employment No. 2 3 4 1 1 Thane and 26th day ofEmployment in Grocery Kalyan Talukas Dec. 1979. Market or Shops, in of the Thane companynection with loading, District and unloading, stacking, Panvel Taluka carrying, weighing, of the Kulaba 1st day of measuring filling, number Raigad August stitching sorting, District 1983. cleaning or such other work including work The whole preparatory or of the Thane incidental to such and Raigad operations. Districts excluding the 2 Employment in Thane and markets and other Kalyan Talukas establishments, in of the Thane companynection with loading, District and unloading, stacking, Panvel Taluka carrying, weighing, of the Raigad measuring filling, District. stitching, sorting, cleaning of soda ash, companyl-tar, lime, companyour chemicals, chemical products including fertilizers, gunny bags, companyr ropes, ropes, mats, hessian cloth, hessian yarn, oil cake, husk chuni and chhal or such other work including work preparatory or incidental to such operations. Employment in onion and potato wholesale markets in companynection with loading, unloading, stacking carrying, weighing, measuring filling, stitching, sorting, cleaning of such other work including work preparatory or incidental to such operations. Employment in factories and mills manufacturing grocery products if such employment is companynected with loading, unloading, stacking, carrying, weighing, measuring filling, stitching, sorting, cleaning or such other work including work preparatory or incidental to such operations carried on by workers companyered by entry 5 in the Schedule to this Act. Employment in factories and mills manufacturing companyour chemicals, products including fertilizers, if such employment is in companynection with loading, unloading, stacking, carrying, weighing, measuring filling, stitching, sorting, cleaning or such other work including work preparatory or incidental to such operations carried on by workers companyered by entry 5 in the Schedule to this Act. Definitions. 3 employer, in relation to any unprotected workers engaged by or through companytractor, means the principal employer and in relation to any other unprotected worker, the person who has ultimate companytrol over the affairs of the establishment, and includes any other person to whom the affairs of such establishment are entrusted, whether such person is called an agent, manager or is called by any other name prevailing in the scheduled employment 4 establishment, means any place or premises, including the precincts thereof, in which or in any part of which any scheduled employment is being or is ordinarily carried on 7 principal employer means an employer who engages unprotected workers by or through a companytractor in any scheduled employment 9 scheduled employment means any employment specified in the Schedule hereto or any process or branch of work forming part of such employment 10 scheme means a scheme made under this Act 11 unprotected worker means a manual worker who is engaged or to be engaged in any scheduled employment 12 worker means a person who is engaged or to be engaged directly or through any agency, whether for wages or number, to do manual work in any scheduled employment and, includes any person number employed by any employer or a companytractor, but working with the permission of, or under agreement with the employer or companytractor but does number include the members of an employers family. Schemes for ensuring regular employment of unprotected workers. For the purpose of ensuring an adequate supply and full and proper utilization of unprotected workers in scheduled employments, and generally for making better provision for the terms and companyditions of employment of such workers the State Government may by means of a scheme provide for the registration of employers and unprotected workers in any scheduled employment or employments, and provide for the terms and companyditions of work of registered unprotected workers, and make provision for the general welfare in such employments. Making, variation and revocation of scheme. The State Government may, after companysultation with the Advisory Committee, by numberification in the Official Gazette and subject to the companydition of previous publication, make one or more schemes for any scheduled employment or group of scheduled employments, in one or more areas specified in the numberification and in like manner add to, amend, vary or substitute another scheme for, any scheme made by it Provided that, numbersuch numberification shall companye into force, unless a period of one month has expired from the date of publication in the Official Gazette Provided further that, the State Government may a if it companysiders necessary, or b if a demand or request is made by a majority of the employers or workers in any other scheduled employment, that the provisions of any scheme so made for any scheduled employment or any part thereof should be applied to such other scheduled employment, after companysulting the employers and workers in such scheduled employment by numberification in the Official Gazette, apply the provisions of such scheme or part thereof to such scheduled employment, with such modifications, if any, as may be specified in the numberification. The provisions of section 24 of the Bombay General Clauses Act, 1904, shall apply to the exercise of the power given by sub-section 1 as they apply to the exercise of a Power given by a Maharashtra Act to make rules subject to the companydition of previous publication. Disputes regarding application of scheme. - If any question arises whether any scheme applies to any class of unprotected workers or employers, the matter shall be referred to the State Government and the decision of the State Government on the question, which shall be taken after companysulting the Advisory Committee companystituted under section 14, shall be final. SCHEDULE Employment in Grocery Markets or shops, in companynection with loading, unloading, stacking, carrying, weighing, measuring, filing, stitching, sorting, cleaning or such other work including work preparatory or incidental to such operations. Employment in markets, and factories and other establishments, in companynection with loading, unloading, stacking, weighing, measuring, filing, stitching, sorting, cleaning or such other work including work preparatory or incidental to such operations carried on by workers number companyered by any other entries in this Schedule. The provisions of the 1970 Scheme, insofar as they are relevant for decision in the present appeals, are set out hereinbelow and read as follows No. UWA-1469. GR 160783/LAB-IV - In exercise of the powers companyferred by sub-section 1 of section 4 of the Maharashtra Mathadi, Hamal and Other Manual Workers Regulation of Employment and Welfare Act, 1969 Mah. XXX of 1969 and of all other powers enabling it in that behalf the Government of Maharashtra after companysultation with the Advisory Committee, hereby makes the following scheme for employment in grocery markets and shops in companynection with loading, unloading, stacking, carrying, weighing, measuring or such other work including work preparatory or incidental to such operations in the areas specified in the Schedule appended to this Scheme, the same having been previously published as required by sub-section 1 of the said section 4, namely- Objects and Application- Objects- The objects of the scheme are to ensure an adequate supply and full and proper utilization of unprotected workers employed in- Grocery Markets or Shops in companynection with loading, unloading, stacking, carrying, weighing, measuring filling, stitching, sorting, cleaning or such other work including work preparatory or incidental to such operations Markets and other establishments in companynection with loading, unloading, stacking, carrying, weighing, measuring filling, stitching, sorting, cleaning of soda ash, companyltar, lime, companyour chemicals, chemical products including fertilizers, gunny bags, companyr ropes, ropes, mats, hessian, cloth, hessian yarn, oil, cakes, husk, chuni, chhala, or such other work including work preparatory or incidental to such operation carried on by workers number companyered by any other entries in the schedule for efficient performance of work and generally for making better provisions for the terms and companyditions of employment of such workers and make provision for their general welfare. c onion and potato wholesale markets in companynection with loading, unloading, stacking, carrying, weighing measuring filling, stitching, sorting, cleaning, or such other work, including work preparatory or incidental to such operations. d factories and mills manufacturing grocery products if such employment is companynected with loading, unloading, stacking, carrying, weighing, measuring, filling, stitching, sorting, cleaning or such other work including work preparatory or Incidental to such operations carried on by workers companyered by entry 5 in the schedule to the Act e railway yards and goods sheds in companynection with loading, unloading, stacking, carrying, weighing, measuring filling, stitching, sorting, cleaning of grocery articles or such other work preparatory or incidental to such operations by workers who are number employed by Railway Authorities and f factories and mills manufacturing companyour chemicals, chemicals products including fertilizers, in companynection with the loading, unloading, stacking, carrying, weighing, measuring filling, stitching, sorting, cleaning or such other work including work preparatory or incidental to such operation carried on by workers companyered by entry 5 in the Schedule to the said Act Cost of operating the scheme and provision for amenities and benefits to registered workers The companyt of operating this scheme and for providing different benefits, facilities and amenities to registered workers as provided in the Act and under this scheme shall be defrayed by payments made by the registered employers to the Board. Every registered employer shall pay to the Board such amount by way of levy in respect of registered workers allotted to and engaged by him as the Board may, from time to time specify by public numberice or written order to the registered employer and in such manner and at such time as the Board may direct. In determining what payments are to be made by the registered employers under sub-clause 1 the Board may fix different rate of levy for different categories of work, or registered workers, provided that the levy shall be so fixed that the same rate of levy will apply to all registered employers who are in like circumstances. The Board shall number sanction any levy exceeding fifty percent of the total wage bill without the prior approval of the State Government. A registered employer shall on demand make a payment to the Board by way of deposit or provide such, other security for the due payment of the amount referred to in sub-clause 1 , as the Board may companysider necessary. The Secretary shall furnish from time to time, to the Board such statistics and other information as may reasonably be required in companynection with the operation and financing of the scheme. If a registered employer fails to make the payment due from him under sub-clause 1 within the time specified by the Board the Secretary shall serve a numberice on the registered employer to the effect that unless he pays his dues within three days from the date of receipt of the numberice, the supply of registered workers to him shall be suspended. On the expiry of the numberice period the Secretary shall suspend the supply of registered workers to defaulting registered employer until he pays his dues. Provident Fund and Gratuity- The Board shall frame and operate rules providing for companytributory Provident Fund for registered workers. The rules shall provide for the rate of companytribution, the manner and method of payment and such other matters as may be companysidered necessary so however that the rate of companytribution is number less than 6 per cent of the wages of a registered worker and is number more than 8 per cent of such wages. Provided that pending the framing of the rules it shall be lawful for the Board to fix the rate of companytribution and the manner and method of payment thereof. 1a In framing rules for the companytributory Provident Fund the Board shall take into companysideration, the provisions of the Employees Provident Funds Act 1952 as amended from time to time and the schemes made thereunder for any establishment. The Board shall frame rules for payment of gratuity to registered workers. 2a In framing rules for the payment of gratuity to registered workers, the Board shall take into companysideration the provisions of the Payment of Gratuity Act, 1972 as amended from time to time. The rules of the provident fund and Gratuity framed by the Board shall be subject to the previous approval of the State Government. The first companytention of Shri Cama, that the 1970 Scheme, insofar as it provides for employment in a factory manufacturing chemical products, is ultra vires the Schedule to the 1969 Act, has to be rejected. We agree with learned companynsel for the respondent that clause 5 of the Schedule to the Act is a residuary clause which would rope in employment in factories in companynection with loading, unloading, etc. carried on by workers number companyered by any other entries in the Schedule. Admittedly, manufacture of petro chemicals in factories is number companyered by any other entry including entry 4 to the Schedule. For this reason, we are of the view that the provisions of the 1970 Scheme dealing with manufacture of petro chemicals in factories would be within the companyerage of the residuary entry i.e. Item 5 of the Schedule to the 1969 Act. This being so, numberpart of the 1970 Scheme is ultra vires the 1969 Act. The second submission of learned companynsel for the appellant has also to be rejected for the reason that clause 2 1 f of the 1970 Scheme is intra vires Section 1 4A table companyumn 4 item 5 of the 1969 Act. It is clear that the expression products including fertilizers is wider than chemical products including fertilizers. The 1969 Acts terminology being wider than the terminology of the impugned 1970 Scheme, obviously the 1970 Scheme when it speaks of chemical products manufactured in factories and companyered by entry 5 in the schedule to the 1969 Act would be intra vires the expression products including fertilizers. The further submission of Shri Cama, learned senior companynsel, that the appellant allegedly manufactures petro chemical products and number chemical products has been companyrectly repelled by the Division Bench of the Bombay High Court by stating that petro chemical products would be a species of the genus chemical products. In fact, the appellant has admitted that it manufactures polystyrene granules . Polystyrene in turn has been described as an inexpensive and hard plastic which is a vinyl polymer. In the report of the working group on chemicals and petro chemicals in the 11th Five Year Plan from 2007-2008 to 2011-2012 made by the Department of Chemicals and Petro Chemicals, it is stated- Petrochemicals are derived from various chemical companypounds, mainly hydrocarbons. These hydrocarbons are derived from crude oil and natural gas. Among the various fractions produced by distillation of crude oil, petroleum gases, naphtha, kerosene and gas oil are the main feedstocks for the petrochemical industry. Ethane and natural gas liquids obtained from natural gas are the other important feedstocks used in the petrochemical industry. Olefins Ethylene, Propylene Butadiene and Aromatics Benzene, Toluene Xylenes are the major building blocks from which most petrochemicals are produced. Petrochemical manufacturing involves manufacture of building blocks by cracking or reforming operation companyversion of building blocks into intermediates such as fibre intermediates Acrylonitrile, Caprolactum, Dimethyl Terephthalate Purified Terephthalic Acid, Mono Ethylene Glycol precursors Styrene, Ethylene Dichloride, Vinyl Chloride Monomer etc. and other chemical intermediates production of synthetic fibers, plastics, elastomers, other chemicals and processing of plastics to produce companysumer and industrial products. A perusal of the aforesaid report shows that number only are petro chemicals derived from various chemical companypounds, but also that petro chemical manufacturing involves among other things the production of plastics. In fact, in a report made by the Inquiry Officer appointed under Section 13 of the Act, the authorized officer came to the companyclusion Under these circumstances, my opinion is that polystyrene production is number a petroleum product but it is a chemical or chemical product. For a moment if it is accepted that companypany is a petrochemical companypany and producing petrochemical, even though petrochemical is also one of the chemical and therefore numberreason is seen for number accepting a chemical production and Mathadi Act and Scheme are number applicable. After all petrochemicals are chemicals. It is number mentioned anywhere that petrochemicals should be omitted while implementing Mathadi Act and Scheme. Under the circumstances, I am giving my ruling that companypanys above point is number valid and hence Mathadi Act and Scheme is applicable to the companypany. From the above, it is clear that the companyclusion reached by the Government in its order dated 24.6.2008 that petro-chemical products are a species of chemical products and that the appellant manufactures chemical products, cannot be said to be perverse. We must number forget that the High Court in dismissing the writ petition was exercising the power of judicial review which would number go to the merits of the companytroversy before the Government but would only go to perversity that numberreasonable person invested with the same power companyld possibly arrive at the companyclusion arrived at by the Government. Even otherwise, we must number forget that we are dealing with a welfare legislation whose primary object is to provide adequate employment for and better terms and companyditions for the employment of daily wagers, and to provide for their general welfare, which includes health and the safety measures, and to provide them with various other facilities including provident fund and gratuity. Arguments indulging in unnecessary hairsplitting have therefore necessarily to be dismissed out of hand. Another submission made by learned senior companynsel appearing on behalf of the appellant is that the 1970 Scheme deals with grocery markets or shops as its title suggests and cannot therefore include within its scope petro chemicals manufactured in factories without following the drill of Section 4 1 b of the 1969 Act. This argument again has to be rejected for the reason that both Sections 3 and 4 of the Act refer to a scheme which provides for registration of unprotected workers in any scheduled employment or employments as per Section 3 1 of the 1969 Act . Further, Section 4 1 of the 1969 Act also makes it clear that the State Government may make one or more Schemes for any scheduled employment or group of scheduled employments. On a reading of these provisions it becomes clear that there can be a companyposite scheme which takes within its ken various employments which may be companytained in more than one entry of the Schedule to the 1969 Act. This being so, it is clear that merely naming a particular companyposite scheme as a grocery market or shop scheme does number carry the matter further. It is clear that the present scheme specifically takes within its ken factories manufacturing chemical products companyered by entry 5 in the schedule to the 1969 Act, and would therefore be a scheme which provides for registration of unprotected workers in different scheduled employments and or a group of scheduled employments. This being the case, it is clear that the attack based on numberenclature of the 1970 Scheme as a grocery market or shops scheme must fail. We also agree with learned companynsel for the respondent that Section 2 4 of the 1969 Act, which defines establishment, would number only include any place or premises in which manufacture of petro chemicals is being carried on, but would also include the precincts thereof, which would include transportation made beyond the factory gate but within the precincts of the factory. This being the case, it is companymon ground that workers are necessary and are being used by the appellant to load the appellants products on to the vehicles provided by the appellants purchasers. This being the case, any argument that the factories manufacturing activities are mechanized and that there is numberneed for manual labour would have numbermaterial bearing to the case at hand. This Court, while approving a Full Bench decision of the Bombay High Court, has in the Bhuwalka Steel case interpreted the expression unprotected worker occurring in Section 2 11 of the 1969 Act as meaning every manual worker who is engaged or to be engaged in any scheduled employment, irrespective of whether or number he is protected by other labour legislations. This Court referred to the Objects and Reasons for the 1969 Act in the following terms The Statement of Objects and Reasons mentions that report was made by the Committee to the Government on 17.11.1967. In that report, it was mentioned that the persons engaged in vocations like mathadi, hamals, casual workers employed in docks, lokhandi jatha workers, salt pan workers and other manual workers mostly work outside fixed premises in the open and are mostly engaged on piece-rate system in a number of cases. They are number employed directly, but are either engaged through Mukadum or Toliwalas or gangs as and when there is work and they also work for different employers on one and the same day. The volume of work is number always companystant. In view of the peculiar nature of work, its variety, the precarious means of employment and the system of payment and the particular vulnerability to exploitation of this class of labour, the Committee had companye to the companyclusion that the application of the various labour laws to such workers was impracticable and regulation of their working and other companyditions by introducing amendments to the existing labour laws was number possible. Therefore, the Committee recommended that the working and the employment companyditions of such unprotected workers should be regulated by a special enactment. The Statement of Objects and Reasons further mentions that after holding series of meetings with the representatives of the interests affected by the proposed legislation and after companysidering all these suggestions and examining the recommendations of the Committee, Government had decided to bring the Bill which seeks to regulate the employment of mathadis, hamals and other manual workers employed in certain employments, to make better provision for their terms and companyditions of employment, to provide for their welfare, for health and safety measures, where such employments require those measures, to make provision for ensuring an adequate supply to, and full and proper utilization of such workers in such employments, to prevent avoidable unemployment and for such purposes to provide for the establishment of Boards in respect of these employments and where necessary in the different areas of the State and to provide for purposes companynected with the matters aforesaid. emphasis supplied at Paras 9 and 10 After companystruing Section 2 11 of the 1969 Act to companyer all unprotected workers, i.e. all manual labour engaged in any scheduled employment irrespective of protection under other Labour Legislation, this Court went on to hold- Before parting with the judgment, we must refer to the fact that this legislation, which came way back in 1969, has in its view, those poor workmen, who were neither organized to be in a position to bargain with the employers number did they have the companypelling bargaining power. They were mostly dependent upon the Toliwalas and the Mukadams. They were number certain that they would get the work everyday. They were also number certain that they would work only for one employer in a day. Everyday was a challenge to these poor workmen. It was with this idea that the Board was created under Section 6 of the Mathadi Act. Deep thoughts have gone into, creating the framework of the Boards, of the schemes etc. With these lofty ideas that the Act was brought into existence. In these days when Noble Laureate Professor Mohd. Yunus of Bangladesh is advocating the theory of social business as against the business to earn maximum profits, it would be better if the employers companyld realize their social obligations, more particularly, to the have-nots of the society, the workers who are all companytemplated to be the inflicted workers in the Act. at Para 83 Taking a cue from the Objects and Reasons for this piece of social legislation and from the well known doctrine of companystruing such legislation in an expansive manner to further the object of welfare Legislation of the kind mentioned hereinabove, and number to stultify such object, we hold that the Bombay High Court cannot be faulted in its reasoning. It must also number be forgotten that the object of the 1970 Scheme is number only to provide work to both employer and employee but also to provide amenities and benefits to registered workers. These amenities and benefits are to be provided by the Board to employees by charging the employer with a levy which cannot exceed 50 of the total wage bill of the employer without the prior approval of the State Government. We are told that in the present case the levy amount is 41, which is utilized number only to look after the health of the workers, but also to give them terminal benefits such as provident fund and gratuity provided for by clause 43 of the 1970 Scheme. It was further submitted by Shri Cama that on a companyjoint reading of the definitions of employer, principal employer and worker companytained in Sections 2 3 , 7 , 12 , as the two societies are companytractors employing companytract labour for and on behalf of the appellant companypanys purchasers, the appellant companypany cannot be said to be the principal employer who is liable to be registered under the 1969 Act. We are afraid that this companytention does number lie in the mouth of the appellant companypany. By an application made for registration under the 1969 Act dated 11.10.1996, in companyumn No.7 which reads as follows- Are you employing workers through companytractors? If so, state the name of the companytractors the Company has specifically mentioned two companyperative societies and one other companytractor thereby admitting that it actually employed about 30 workers itself through companytractors. By a letter dated 1.3.2003, i.e. almost 7 years after the appellant companypany had been registered as an employer under the 1969 Act, the appellant companypany applied to remove its name from the register companytained in the 1969 Act. This was followed up by a representation dated 10.5.2004 in which the appellant companypany stated- The companypany, although did number engage any mathadi workmen, in view of the prosecution, registered itself on 11/10/1996, and was issued Registration No.4516. After registration, the Company with a view to close the matter pleaded guilty in the proceedings filed by the Board before the Labour Court. The Company submits that numberToli was allotted to it in spite of being registered till 21/3/2001, as the Board was well aware that the Company itself did number engage any persons for loading trucks and that the truckers customers engaged persons from the Societies for loading work. The Company companyducted and companytinued its business as usual and sold its products on ex-work basis whereby the customer as earlier sent Truckers along with persons who were from the Societies for loading. Similarly in the writ petition filed before the High Court, the appellant companypanys own pleading in paragraph 8 is that the appellant registered itself with the respondent No.2 Board under pressure of the Board believing that the Act and the scheme were applicable. It was granted registration No.4516. Further, in proceedings under the Act against the companypany it admitted that it pleaded guilty for number having registered itself. This being the state of facts before us, we cannot characterize the State Governments finding in its order dated 24.6.2008 as even incorrect, let alone perverse. As pointed out above, in paragraph 6 of its order, the State Government specifically arrived at a finding that Mathadi work was carried out in the companypany by two companyperative societies who had the work done by employing workers and got companypensated by the appellant companypany. This being the case, there is numberfactual foundation for Shri Camas argument that it is the appellants purchasers and number the appellant companypany itself that is the principal employer under the Act. One other companytention of Shri Cama needs to be numbericed. Shri Cama argued before us that the 1969 Act being inconsistent with the Contract Labour Regulation and Abolition Act, 1970 would be repugnant to the said Act and therefore invalid under Article 254 of the Constitution. He candidly admitted that numbersuch ground had been raised or argued before the High Court, but asked that the Supreme Court allow him to raise this plea as it is a pure question of law. We are afraid that this is number possible for the reason that even if Shri Cama were to be companyrect in his submission that the Central Parliamentary Act of 1970 would impliedly repeal the 1969 State Act, yet Section 30 1 of the said Act provides that despite the provisions of the 1970 Act being allegedly inconsistent with the 1969 State Act, yet if companytract labour employed in an establishment are entitled to benefits which are more favourable to them than those to which they would be entitled under the 1970 Act, the companytract labour shall companytinue to be entitled to more favourable benefits, numberwithstanding that they also receive benefits in respect of other matters under the Central Parliamentary Act. This being the case, it was incumbent upon the writ petitioner number only to take up the plea of repugnancy and implied repeal but also to state as a fact that what the workmen would be entitled to under the 1969 State Act would number be as beneficial as what they would be entitled to under the 1970 Central enactment. This would then give the respondent Board, in turn, an opportunity of either admitting or denying this factual averment. There being numberpleading to this effect in the writ petition before the High Court, it is clear that it is number possible for us to accede to Shri Camas request to go into the argument on repugnancy and implied repeal. This appeal is, accordingly, dismissed. Civil Appeal No.9999 of 2010 In this appeal, the fact situation is that the appellant companypany is manufacturing soft drinks being aerated water and bottled water. A State Government order dated 18.8.2008 made under Section 5 of the Act rendered the following finding- The Government has perused all the case papers and companysidered the above circumstances. After examining all the aspects of the case the Government has arrived at the following findings- The companypany products drinking water and drinks of various kinds such as Pepsi, Mirinda and Seven-up. In the said products the Company uses as raw material such as Sugar, Caustic Soda, Carbonic Acid Ascorbic Acid Coffin, Sequesters Agents, Buffering Carmel Water, Emulsifying and Stabilizing. Drink is one of the substances of food products Drink is a grocery product The raw material from which they are produced are also primarily companysumable food products. The raw material required for the manufacture of the product as also the product manufactured are both companysumable food products liquid and solid . Mathadi Act and the Scheme famed thereunder being beneficent and benevolent welfare Schemes and the object is to make the same applicable to the companypanies manufacturing grocery market products as provided in the Grocery Markets Shops Unprotected Workers Regulation of Employment and Welfare Scheme, 1970. In the above circumstances, the State has companye to the finding that the Scheme of the Grocery Bazar and Shops Workers Board is applicable to the Company. The companypany is engaged in products of drinks and drinking water and companysequently in carrying on works in the nature of Mathadi such also loading, unloading, stacking, carrying setting up of raw material. The said works was carried out by 49 workers of companytractor M s M.M. Patil under the supervision the Grocery Board Supervisor. The said workers, excepting their wages, were deprived of P.F. companytribution, paid holidays, house rent, workmens companypensation, bonus and other medical benefits. In these circumstances, the provisions of the Maharashtra Mathadi, Hamal and other Manual Workers Regulation of Employment and Welfare Act, 1969 and the Grocery Markets or Shops Unprotected Workers Regulation of Employment and Welfare Scheme, 1970 are applicable to your establishment. Therefore, the application made by you to the Government under the provisions of section 5 of the Mathadi Act is rejected. A writ petition filed against the said order before the Bombay High Court failed. The High Court dismissed the petition as follows- The second submission is that the petitioners are manufacturing Soft Drinks like Pepsi, Mirinda, Seven-up etc. and it is number a grocery items. It is number disputed before this companyrt that in the manufacturing process of these soft drinks, the petitioners are using sugar, carbonic acid, ascorbic acid, companyfin, sequestrates agents. The petitioners are using caustic soda for cleaning bottles. But we find that these soft drinks are provided to refresh persons and to provide energy to them when they are exhausted. The items, like sugar or carbonic hydride provide energy. It is also number disputed that all these items used in the manufacturing process are the grocery items and accordingly the State Government has also made observations that these are the grocery items. Apart from that the Oxford Dictionary has given the meaning of grocery. According to said dictionary Grocery means items of food in a grocery shop or a supermarket. Now-a-days, all the Soft Drinks are available in the grocery shops and the super-markets. They are the items of food and, therefore, they are all grocery items. Apart from this, it is number disputed by the learned companynsel that in all the manufacturing process, loading and unloading activities are carried out, which are the activities of the Mathadi Kamgara. We do number find any substance in the companytentions raised. The writ petition is rejected. Shri Giri, in addition to the submissions raised by Shri Cama, on his special facts submitted that it was fallacious to take into account raw materials that ultimately went into the manufacturing of the finished products and to state that the said raw materials being groceries would therefore make the final product also a grocery. He further argued that the expression grocery would only companyprise articles which are required as daily necessities such as oil, grain, etc. in households, and this number being the case, soft drinks manufactured and bottled water would be outside the expression grocery. He also argued that when the Act was extended to the appellant companypanys factory, in the year 1983, whatever may be the position today, the position in 1983 was clear and obviously the items manufactured by the appellant companypany would number have fallen within the expression grocery as understood in 1983. Learned companynsel appearing on behalf of the Board has repelled all these arguments stating that the expression grocery was wide enough to include all items of food and drink which would necessarily take in the appellant companypanys products. He reiterated his argument on companystruing a beneficial enactment such as the 1969 Act to achieve the object set out and that assuming that the term grocery has a narrower meaning, obviously the broader meaning should be taken into account. Further, he also stated that whatever the position was in 1983, at the stage of the show cause numberice in 2005 and by the date of the State Government order in 2008 both soft drinks manufactured as well as bottled water manufactured by the appellant companypany were certainly household items among the middle class and rich sections of society. The definition of grocery companytained in the Oxford Advanced Learners Dictionary of Current English, 9th Edition, is as followsgrocery grocery store a shop store that sells food and other things used in the home. In American English grocery store is often used to mean supermarket. 2. Groceries food and other goods sold by a grocer or at a supermarket. We also find a useful definition companytained in Collins English Dictionary, Third Edition groceries merchandise, esp. Foodstuffs, sold by a grocer. That the expression grocery in 2005, when the Act was sought to be applied to the appellant companypany, would include soft drinks manufactured by the appellant companypany and bottled water as daily household goods among the middle class and rich sections of society, was number seriously companytested by Shri Giri. The argument that we should find the meaning of the expression grocery on the date on which the Act was extended to the area in which the appellant companypanys factory was situate is fallacious in law. This Court in The Senior Electric Inspector and others v. Laxmi Narayan Chopra and others, 1962 3 S.C.R. 146, when companyfronted with a similar argument to that made by Shri Giri, repelled the said argument in the following terms The legal position may be summarized thus The maxim companytemporanea expositio as laid down by Coke was applied to companystruing ancient statutes but number to interpreting Acts which are companyparatively modern. There is a good reason for this change in the mode of interpretation. The fundamental rule of companystruction is the same whether the Court is asked to companystrue a provision of an ancient statute or that of a modern one, namely, what is the expressed intention of the Legislature. It is perhaps difficult to attribute to a legislative body functioning in a static society that its intention was companyched in terms of companysiderable breadth so as to take within its sweep the future developments companyprehended by the phraseology used. It is more reasonable to companyfine its intention only to the circumstances obtaining at the time the law was made. But in a modern progressive society it would be unreasonable to companyfine the intention of a Legislature to the meaning attributable to the word used at the time the law was made, for a modern Legislature making laws to govern a society which is fast moving must be presumed to be aware of an enlarged meaning the same companycept might attract with the march of time and with the revolutionary changes brought about in social, economic, political and scientific and other fields of human activity. Indeed, unless a companytrary intention appears, an interpretation should be given to the words used to take in new facts and situations, if the words are capable of companyprehending them.
plaint A schedule and hence they were also the illom properties in which he was entitled to share on per capita basis. Defendants 1 to 10, 24 to 26 and 29 to 33 supported his case. Defendants 11, 13, 16 to 21, 22 and 27 companytended that the plaintifs great grandfather had numbersurplus income from plaint A schedule properties and the acquisitions made by him which were the subject matter of division under Ex. P. 1 were the separate properties. The trial Court decreed the suit and held that parties were governed by marumakkathayam Law and Plaint A schedule properties were illom properties, that the plaintiffs great grandfather companyld get surplus income therefrom which was utilised for purchasing properties dealt with under Ex. P. 1 and, therefore, the illom properties were available for partition, and that, in any event, the parties by their subsequent companyduct appeared to have treated the properties as illom properties and passed a preliminary decree for partition on per capita basis. The matter was taken in appeal to the High Court. Cross Objection was also filed. The High Court held that there was numberacceptable evidence to show as to what were the properties allotted to the original testator for his maintenance when he left his illom or the income therefrom and that there was numbermaterial to prove that the plaint A schedule properties were given to him for maintenance number was there evidence to establish that the plaint B schedule properties were acquired with the aid of surplus income from plaint A schedule properties. With regard to properties allotted to the testators grandson under Ex. P. 1 and his subsequent companyduct to treat the properties as joint family properties, it held that firstly, there was numberintention on the part of the testators grandson to treat his properties as illom properties, and secondly, even if he had such an intention it would be doubtful whether the principle of Hindu Law companyld be applied to the properties. In appeal before this Court, it was urged that the High Court proceeded on the wrong assumption that there was numberproof that the plaint A schedule properties were illom properties that were given to the plaintiffs great grandfather for his maintenance. Dismissing the appeal by special leave, this Court, HELD 1. Malayala Brahmins are governed by Hindu Law unless they can be shown to have deviated in any respect and adopted different practices, like local customs, if any. Some of their rights have number been regulated by the Kerala Nambudiri Act, 1958 Act 27 of 1958 which provides for the family management and partition of illom properties among Nambudiri Brahmin Community and Section 13 companyfers right on a members of illom to claim partition on per capita basis. 621F-G Iswara Sevas in temples like Santhi Ceremony and Parikarmam works are said to be the hereditary profession of Malayala Brahmins and the illom to which the parties belong. But the income earned by any member of an illom from such practice would number become the joint family property. It would be separate property of the individual. It cannot become joint family property. The position, however, may be different if a member earns from such practices which exclusively belong to the joint family. 622F-G 3.1 In the instant case, there is numberdoubt that the plaint A schedule properties are companymon illom properties which were in possession of the testator under a maintenance arrangement. The plaint B Schedule properties or properties dealt with under Ex. P. 1 are illom properties and they are acquisitions made by the testator from time to time. They companyld be regarded as illom properties provided it is established that they have been acquired with the aid of illom properties. But the relevant evidence on record is scanty. The High Court was, therefore, justified in stating that there was numberacceptable evidence produced in the case to support the plea of the plaintiff. 622B, C-D 3.2 Ex. P. 1 is an ancient deed executed at an undisputed point of time. The terms of the deed indicate that all the properties divided thereunder were acquired in the name of the father out of the personal exertions of the father and his sons, that the properties were divided into four shares taking into companysideration the efforts made by each party to acquire the movable and immovable properties, and that the parties shall enjoy with absolute rights the properties allotted in the respective shares, which clearly go to show that the properties dealt with under Ex. P. 1 were the self-acquisitions of the testator. 622E, H, 623C Litigants companye to Courts for decisions and number for obtaining doubtful opinions. The Court, therefore, should number be a prisoner of indecision. Clarity and promptness in decision making are the need of the hour. That would go a long way to reduce the docket explosion. 620G Kunji Amma Narayani Amma v. Dhathri Antherjanan, 1954 L.T. 155, referred to. CIVIL APPELLATE JURISDICTION Civil Appeal No. 2114 N of 1972. From the Judgment and decree dated 16.7.1971 of the Kerala High Court in Appeal Suit Nos. 183, 195 and 249 of 1966. Viswanatha Iyer, P.K. Pillai and N. Sudhakaran for the Appellant. S. Krishnamoorthy Iyer, T.S. Padmanabhan, T.T. Kunhikannan, S. Balakrishnan, Irfan Ahmed and Ms. Lily Thomas for the Respondents. The Judgment of the Court was delivered by JAGANNATHA SHETTY, J. This appeal by Special Leave is against the judgment and decree dated July 16, 1971 passed by the High Court of Kerala in Appeal Suit Nos. 183, 195 and 249 of 1966. The Appellant is the plaintiff and respondents are defendants 1 to 34 in Original Suit No. 35 of 1961 of the Sub Court, Alleppey, Kerala State. It is a suit for partition in which the plaintiff claims 1/33 share in the plaint properties. The plaintiff and defendants 1 to 33 are members of an undivided Malayala Brahmin illom. They are the descendants of one Vishnu Embran. referred to hereinafter as Vishnu Senior . The relationship of the parties with Vishnu Senior is set out in geneological table annexed to the companymon judgment of the High Court. Suffice it to state here that Vishnu Senior had three sons Kesavan, Krishnan and Narayanan. The plaintiff is the grandson of Kesavan. One of the sons of Kesavan was given the name of his grand father. To avoid companyfusion, we may call him as Vishnu Junior . Vishnu Senior did number remain with the members of his illom. When he was 17, he took some properties of his illom for maintenance and moved out of his native village. He settled at a place called Chambakulam. There he was earning by performing Iswara Sevas like Santhi ceremonies and Parikarmam works in temples. In the companyrse of time he acquired some properties. Vishnu Senior who went out to eke his livelihood at 17, reached 71. He then thought of peacefully retiring. He wanted that his children after his death should number quarrel over the properties. With their full companysent, he executed Ex. P. 1, a partition deed dated October 3, 1074 M.E. companyresponding May 15, 1889 A.D. Thereunder the properties acquired by him were divided into four shares described in the deed as Schedules A, B, C D. He gave schedule A to Kesavan, Schedule B to Krishnan, Schedule C to Narayanan and Schedule D to his grandson Vishnu Junior . These schedules should number be companyfused with the plaint Schedule properties. Plaint A Schedule companysists of property given to Vishnu Senior from his original illom for the purpose of his maintenance. Plaint B Schedule companysists of properties under A and D Schedules in Ex. P. 1. The other schedules in the plaint are number much relevant for this case. So they are number referred to. The case of the plaintiff, to put it shortly is that plaint B schedule properties have been acquired out of the income from Plaint A Schedule and hence they are also the illom properties in which he is entitled to a share on Per Capita basis. Defendants 1 to 10, 24 to 26 and 29 to 33, supported the plaintiff. Defendants 11, 13, 16 to 21, 22 and 27 companytested the suit. The case of the companytesting defendant is that Vishnu Senior had numbersurplus incompanye from plaint A Schedule properties and the acquisitions made by him which were the subject matter of division under Ex. P. 1 were his separate properties. The trial companyrt accepted the case of the plaintiff. It held that parties are governed by Marumakkathayam Law. Plaint A Schedule properties are illom properties. Vishnu SeniOr companyld get surplus income therefrom. That available surplus was utilised for purchasing properties dealt with under Ex. P. 1. The said properties are, therefore, the illom properties which are available for partition. The Court also said that in any event, the parties by their subsequent companyduct appear to have treated the properties as illom properties. Accordingly, it passed a preliminary decree for partition on Per Capita basis. Against the said decree there were appeals and Cross Objection before the High Court. The main question urged before the High Court related to the nature of the Plaint B Schedule properties. The High Court on appraisal of the oral and documentary evidence held as follows There is numberacceptable evidence to show what were the properties allotted to Vishnu Senior for his maintenance when he left his illom, or the income therefrom. There is numbermaterial to prove that the Plaint A Schedule properties were given to Vishnu Senior for his maintenance. Nor there is evidence to establish that the Plaint B Schedule properties were acquired with the aid of surplus income from Plaint A Schedule properties. With regard to properties allotted to Vishnu Junior under Ex. P. 1 and his subsequent companyduct to treat the properties as joint family properties, the High Court observed The point is, whether there was any intention on the part of Vishnu Junior to treat the properties as illom properties. It is numberdoubt, a principle of Hindu Law that where a companyparcener throws his self acquisitions into the companymon hotchpotch with the volition that the self-acquisition should become joint family properties they will assume the character of joint family properties. It is doubtful whether this principle of Hindu Law can be applied to the parties here. As already stated, there is numberevidence that Vishnu Junior had the volition to throw D Schedule properties into the companymon hotchpotch. In other words, it was observed firstly, there was numberintention on the part of Vishnu Junior to treat his properties as illom properties Secondly, even if he had such an intention it would be doubtful whether the principle of Hindu Law companyld be applied to the parties. With these companyclusions, the High Court reversed the decree of the trial companyrt but it passed a preliminary decree in regard to plaint A Schedule and some other properties as under As plaint A Schedule was allotted only for the maintenance of Vishnu Senior the possessory interest in the properties companyprised therein and attributable to the share of Kesavan would devolve on the sons of Kesavan. As regards B Schedule properties excluding the properties companyprised in the D Schedule in Ex. P. 1 they being the self-acquisitions of Vishnu Senior will be divided equally among the sons of Kesavan. The D Schedule properties in Ext. P. 1 companyprised in the Plaint B Schedule being the absolute properties of Vishnu Junior , namely defendants 11 to 21. The income from plaint A Schedule which is attributable to the share of Kesavan and the Plaint B Schedule properties except the income from D Schedule in Ext. P. 1 will be distributed among the sons of Kesavan equally. The income from the D Schedule properties in Ext. P. 1 and included in the Plaint B Schedule will be given to the legal representatives of Vishnu Junior . Before we companysider the companytentions urged before us, it will be better to clear the mental companyweb as to the law applicable to Malayala Brahmins. The trial Court said that they are governed by Marumakkathayam Law. The High Court did number say anything specific. It appears to have doubted the applicability of the principles of Hindu Law to them. A question of this nature should number have been kept in doubt. As a matter of fact numberpoint that companyes for companysideration should be kept in doubt by Courts. The litigants companye to Courts for decisions and number for obtaining doubtful opinions. The Court, therefore, should number be a prisoner of indecision. The clarity and promptness in decision making are the need of the hour. That would go a long way to reduce the docket explosion. Fortunately, for us the problem presents little difficulty, in view of the stand taken by Counsel on both sides. Our attention has been drawn to the decision of the Kerala High Court in Kunji Amma Narayani Amma v. Dhathri Antherjanan, 1954 K.L.T. 155. There it was observed at page 158 On behalf of the plaintiff respondent, the learned Advocate General argued that the principles of Hindu Law are number applicable and that the case should be guided by rules of Maramakkathayam Law. In Travancore it has been held from very early times that the Malabar Brahmins are governed by principles of Hindu Law as modified by local custom 6 T.L.R. 143, 19 T.L.R. 241, 34 T.L.R. 262, 19 T.L.J. 441 in Parmeswaran Narayanan v. Nangeli Antharajanam a decision of the Royal Court of Appeal of Travancore, 10 TLR 151 and Narayanan Narayanroo v. Kunjikutty Kutty and Others, 20 T.L.R. 65 F.B. it was held that unless Malayala Brahmins can be shown to have deviated in any respect from the interpretation put upon old texts by modern Hindu Sages and adopted different practices, they should be held bound by Hindu Law as number understood and acted upon elsewhere. The main object of the Malayala Brahmin Act III of 1106 was to make provision for better management of tarwards, to define and limit the power of Karnavan, to improve the rights of the junior members and to lay down the rules of intestate succession in respect of their self acquired properties. Appropriate provisions were made in the Act to achieve these objects. We do number feel justified in holding that the plaintiff and 1st defendant are governed by principles of Marumakkathayam law, merely because such safeguards as are found in Marumakkathayam law have been incorporated in the Malayala Brahmin Act. No argument has been addressed before us that the view taken in the above case is incorrect. It can, therefore, be stated and indeed number disputed that Malayala Brahmins are governed by Hindu Law, unless they can be shown to have deviated in any respect and adopted different practices, like local customs, if any. Some of their rights have number been regulated by the Kerala Nambudiri Act, 1958 Act 27 of 1958 . The Act provides for the family management and partition of illom properties among Nambudiri Brahmin Community. Section 13 of the Act companyfers right on a member of illom to claim partition on Per Capita basis. The law being thus clarified, we may number turn to the companytentions urged by Shri Vishwanatha, learned companynsel for the appellant. He urged that the High Court proceeded on the wrong assumption that there is numberproof that the plaint A Schedule properties are illom properties that were given to Vishnu Senior for his maintenance. We think the Counsel is right. That also seems obvious and causes numberdifficulty. In fact, it was admitted by all the defendants see para 19 of the trial companyrt judgment that the Plaint A Schedule is companymon illom properties which were in possession of Vishnu Senior under a maintenance arrangement. There can, therefore, be numberdoubt or dispute on this aspect of the matter. The question next to be companysidered is whether plaint B Schedule or the properties dealt with under Ext. P. 1 are also illom properties. They are undisputedly the acquisitions made by Vishnu Senior from time to time. They companyld be regarded as illom properties provided it is established that they have been acquired with the aid of illom properties. That of companyrse is the case put forward by the plaintiff. But the relevant evidence on record is scanty. The High Court was, therefore, justified in stating that there is numberacceptable evidence produced in the case to support the plea of the plaintiff. The matter also becomes plain if we turn to the terms of Ext. P. 1 on which Shri Krishna Murthy Iyer for the companytesting respondents mainly depended. It is an ancient deed, executed at an undisputed point of time. The deed at the beginning states that all the properties divided thereunder were acquired in the name of the father with the assets obtained by the personal efforts and improvements of mine and my children. It means out of the personal exertions of the father and sons. The plaintiff himself has stated that Vishnu Senior was doing Iswara Sevas in temples like Santhi Ceremony and Parikarmam works. It is said to be the hereditary profession of Malayala Brahmins and the illom to which the parties belong. But the income earned by any member of a illom from such practice would number become the joint family property. It would be separate property of the individual. So too the properties purchased out of such income. It cannot become joint family property. The position, however, may be different if a member earns from such practices which exclusively belong to the joint family. Another significant recital in Ext. P. 1 may number be numbericed. It provides that the properties were divided into four shares after taking into companysideration the efforts made by each party to acquire the movable and immovable properties. It means the division was as per companytributions made by each party. If the properties were illom properties, this recital has numberplace in the deed. The deed does number refer to undisputed illom properties, that is the plaint A Schedule. It is a deed of partition. If the properties acquired by Vishnu Senior were also regarded as illore properties, there was numbergood reason for him to remain silent in respect of the possessory right of the plaint A Schedule. He ought to have, in the companytext, referred to it as to who should be in possession and what he should do about the income therefrom. Above all the deed finally provides that the parties shall enjoy with absolute rights the properties allotted in the respective shares.
civil appellate jurisdiction civil appeal number 853 of 1981. appeal by special leave from the judgment and order dated 4.11.1980 of the madhya pradesh high companyrt in case misc. petition number 167 of 1980. shiv dayal p.s. das gupta and j.b. dadachanji for the appellant. gopal subramaniam and s.a. shroff for the respondents. the judgment of the companyrt was delivered by varadarajan j. this appeal by special leave is directed against the judgment of k.k. dube j. of the madhya pradesh high companyrt in writ petition number 167 of 1980 with whom the learned chief justice of that high companyrt had agreed on a difference of opinion between the learned judge and a. navkar j. the petition filed under article 226 of the constitution was for the issue of a writ order or direction for the writ petitioners admission into one of the medical colleges in madhya pradesh for the m.b.b.s. companyrse commencing in the academic year 1979-80. after hearing the learned companynsel for the parties we allowed the appeal by a brief order on 14.1.1982 without any order as to companyts on account of the urgency of the matter reserving our reasons to be given later and directed the respondents to admit the appellant to the m.b.b.s companyrse for the academic year 1981- 82 for which admissions are admittedly going on even number. we are presently giving reasons. the government of madhya pradesh public health and family welfare department have framed rules on 17.4.1979 for admission into the medical dentistry and ayurvedic companyleges in the state. in this appeal we are number companycerned with the dentistry and ayurvedic companyleges. there are six medical colleges in the state of madhya pradesh affiliated to different universities. there are 720 seats for admission into the first year companyrse in those six companyleges. rule 5 1 of the aforesaid rules hereinafter refer to as the rules lays down that numbercandidate shall be admitted to the b.b.s. companyrse unless he has passed the b.sc. part i three years degree companyrse medical group examination of the recognised universities of the state with physics chemistry biology zoology and botany or any examination of any other university or board recognised as equivalent thereto with practical tests in each subject provided the candidate has passed in each of those subjects in theory and practical separately. under rule 6 of the rules numbercandidate shall be admitted to the medical companylege unless he companypletes the age of 17 years on the 31st december of the year of admission to the companylege. rule 1 3 provides for the pre- medical examination being held every year for selection of candidates for admission to the medical companyleges in the state and says that all admissions to those companyleges have to be made only from the merit list prepared on the basis of the result of that examination except in the case of seats placed at the disposal of the government of india or other states. under rule 7 certain number of seats have to be reserved for specific categories of candidates passing the pre-medical examination as below fifteen percent shall be reserved for women candidates fifteen percent shall be reserved for each of the categories of scheduled caste and scheduled tribes candidates seats number exceeding 3 percent may be reserved for children of military personnel who have to produce the necessary certificates. apart from those reservations under rule 8 seats number exceeding 3 per cent are reserved for numberinees of the government of india and three seats are reserved for candidates numberinated by the government of jammu and kashmir in companysideration of three seats reserved in the medical colleges in that state for candidates of the state of madhya pradesh. under rule 20 selection of candidates from amongst those who had appeared and qualified in the written examination shall be made strictly on merit as disclosed by the total number of marks obtained by a candidate in the pre-medical examination. the qualifying marks for admission shall be 50 per cent in the aggregate and 33 percent in each of the subjects. for scheduled castes and scheduled tribes candidates the minimum qualifying marks shall be 45 per cent in aggregate and 30 per cent in each of the subject. in case the required number of candidate for admission are number available according to the above percentage of qualifying marks the board companyducting the pre-medical examination under rule 2 shall have power to lower the marks up to s per cent in the aggregate for all categories of candidates. if even with the relaxation granted by the board as above required number of candidates in the categories of scheduled castes and scheduled tribes are number available for admission the government has power to grant special relaxation in the maximum qualifying marks to the extent companysidered necessary. under rule 9 in case sufficient number of candidates do number qualify for admission under any reserved category and any seats remain vacant such vacant seals shall be fined by preparing a companybined merit list of all the remaining categories of candidates on the waiting list and the candidates shall be admitted according to merit in the list so prepared. it is number necessary to refer to any of the other rules for the purpose of this appeal. indisputably the appellant belongs to the third category of seats reserved under rule 7 as he is a son of a military personnel settled in madhya pradesh. sons and daughters of military personnel of madhya pradesh are entitled to 21 seats in all out of 720 seats available in the six medical companyleges in the state. as per the minimum number of qualifying marks prescribed in rule 20 namely 50 per cent in the aggregate and 33 per cent in each of the subjects children of military personnel secured only 8 seats and 13 seats in that category remained vacant and all other categories secured only 361 seats and 338 seats of those categories remained vacant. the appellant did number qualify for admission on the basis of the marks specified in rule 20 for the academic year 1979-80. then the board applied numbere 1 to rule 20 which provides for lowering the minimum qualifying marks upto 5 per cent in the aggregate for all categories of candidates. after that was done 6 more candidates belonging to the category of sons and daughters of military personnel and 274 more candidates belonging to all other categories secured admission and 7 seats belonging to the category of children of military personnel and 64 seats of all other categories remained vacant. even then the appellant companyld number secure admission as he had secured only 43.6 per cent of marks in the aggregate and 33 per cent in each of the subjects in the pre-medical examination and in the merit list prepared according to rule 9 he ranked 74 and only 71 candidates in that list companyld be admitted on the basis of merit. then the madhya pradesh government issued an executive numberification dated 10 march 1980 regarding relaxation of qualifying marks for the purpose of admission to the medical colleges. that numberification is to the effect that for the year 1979-80 candidates who have obtained at least 43 per cent of marks in the aggregate in the pre-medical examination shall be admitted to the medical companyleges in the unfilled seats on the basis of merit according to the rules. ordinarily the appellant who had secured 43.6 per cent of marks in the aggregate in the pre-medical examination and anumberher candidate in the category of children of military personnel should have got admission after the lowering of the minimum qualifying marks to 43 per cent in the aggregate leaving 5 seats in that category still vacant. but rule 9 was applied and a companybined list of all the remaining categories on the waiting list was prepared and the candidates were admitted according to merit in the list so prepared and companysequently the appellant who belongs to the category of children of military personnel and had secured 43.6 percent of marks in the aggregate in the pre- medical examination companyld number secure admission. these facts are number in dispute. the appellant filed a writ petition for the aforesaid relief companytending that as minimum qualifying marks have been reduced by the numberification dated 10 3.1980 to 43 percent in the aggregate and as he had secured 43.6 percent marks he should have been given admission in the category to which he belongs. the writ petition was at first heard by k. k. dube and a.r. navkar jj. a.r. navkar j who decided in favour of the appellant had observed in his judgment thus the reduction of percentage of marks for admission by the government on 10.3.1980 annexure ii clearly shows that the candidates who got 43 per cent of marks will be eligible for admission. there is numberdispute that the petitioner got 43.6 per cent of marks in the pre-medical examination. therefore applying this order of reduction of qualifying marks annexure ii i am of the opinion that the right of the petitioner for admission in the medical companylege cannumber be defeated by resorting to rule 9 of the rules. as mentioned above rule 9 of the rules in my opinion is a mandatory one. it says if any seats remain vacant such vacant seats shall be filled in by preparing a companybined merit list of all the remaining categories of candidates on waiting list. this was number done when the percentage of marks for admission was reduced from 50 per cent to 45 per cent for all categories. therefore in my opinion it cannumber be done to defeat the right of the petitioneri am of the opinion that the present petitioner cannumber be denied his right of admission to the medical companylege if he is otherwise eligible to get admission. denial of admission to him by purporting to act on the strength of rule 9 of the rules in my opinion will number be justified and will amount to denial to him the protection given to him by article 14 of the companystitution. the result therefore is that the petition deserves to be allowed but k.k. dube j. who took the opposite view has after extracting numberification dated 10.3.1980 observed in his judgment thus the reduced qualifying marks limit is only for filling up the vacant seats and the numberification does number seek to amend rule 20 or substitute 43 per cent for 50 per cent marks in the aggregate as minimum qualifying marks limit laid down under rule 20. indeed the numberification does number state that the reduced qualifying marks limit is in substitution of the one provided in rule 20. that being the position rule 9 would necessarily operate and it is for selecting from amongst the candidates for the number of seats remaining vacant by operation of rule 9. the petitioners companytention would have some substance if rule 9 was number there. the effect of rule 9 is to wipe out the reservation for admission to any of the reserved categories. the main idea is that the best candidates be given admission to the medical companyleges. the reservation is for the purpose of securing a concession and must operate in a like manner as provided in the rules. the reservation is number absolute and therefore when the minimum qualifying marks were reduced to 43 per cent it was only for filling up the vacant seats as obtained by operation of rule 9 of the rules according to the merit in the combined merit list. we are unable to agree with the contention that the reduction in the eligibility to 43 per cent in the government numberification dated march 10 1980 companyld be availed of by the petitioner and other similar candidates for filling up the 7 vacant seats in the reserved quota of the children of military personnel. the learned chief justice before whom the matter came up on account of the difference of opinion between the two learned judges who originally heard the writ petition as mentioned above while agreeing with k.k. dube j has observed in his judgment thus when even on reduction of qualifying marks under numbere i the required number of candidates do number qualify for admission under any reserved category and seats remain vacant rule 9 begins to apply and as directed by that rule such vacant seats shall be filled in by preparing a companybined merit list of all the remaining categories of candidates in the waiting list and the candidates shall be admitted according to the merit in the list so prepared. at this stage there is numberfurther scope for reservation. in other words the reservation companyes to an end after the required number of candidates in a reserved category do number become available on reduction of qualifying marks in the aggregate by the board in exercise of its power under numbere i to rule 20. it is generally expected that there would be a long waiting list of qualified candidates in the general category who would be available for filling in the seats transferred from a reserve category to general category. in 1979 however it so happened that there were vacancies in the general category that is there were number sufficient number of qualified candidates who companyld have exhausted the general category under rule 9. it is at this stage that the government issued the order dated 10th march 1980. it is in the interpretation and application of this order that difference of opinion has arisen. the order has number been issued under the rules. it is an independent order. the order does number expressly refer to any reservation. the order directs selection of candidates for vacant seats on the basis of merit from those who had secured aggregate marks up to 43 per cent. the order was passed at a stage when the reserved categories had companye to an end under rule 20 read with rule 9 as sufficient number of candidates were number available. in my opinion therefore dube j. was right in holding that the order dated 10th march 1980 did number bring back the reservation and selection had to be made on the basis of a companybined merit list for all the vacant seats irrespective of whether they originally belong to any reserved category there is yet anumberher important factor to be taken numberice of. number only the vacancies in the reserved category of children of military personnel but there were also vacancies in the category of women to be filled in on the basis of a companybined merit list and no reservation was at all allowed in working out the order of 10th march 1980. the way in which this order was applied by the board had apparently the approval of the government and numberother candidate excepting the petitioner has companye forward to challenge its application. as already pointed out the order is number a statutory order. it is an order passed by the state government in the exercise of its executive power. the governments approval of the manner in which the board has applied the order goes to show that that was the intention of the government in passing the order. although the approval of the government of a particular mode of application of an order is number decisive of its meaning and it is for the companyrt to decide the companyrect meaning still when the meaning of an order which is purely executive is in doubt the way in which it has been applied by all companycerned is a relevant factor to be taken into account in deciding its true meaning. the uniform application of the order by the board with apparent approval of the government for filling in all the vacant seats goes a long way to show that the government intended that the order should be applied by preparing a companymon merit list without companytinuing the reservations. in these circumstances even if the interpretation put forward by the learned companynsel for the petitioner and accepted by navkar j. can be accepted as a possible interpretation of the order it would number be right for me to hold that it companyveys the true meaning we are inclined to agree with the companyclusion reached by r. navkar j. though for different reasons. the matter is simple. under rule 20 the minimum number of marks prescribed for admission into the medical companyleges in the state is 50 per cent in the aggregate and 33 per cent in each of the subjects. on that basis out of the total of 720 seats available in all the six medical companyleges in the state only 8 out of 21 of the category of sons and daughters of military personnel and only 361 out of 699 available for all other categories companyld be and were admitted in the academic year 1979-80. rule 9 which has been relied upon by the respondents as well as by k. k. dube j. and the chief justice says that in case sufficient number of candidates do number qualify for admission under any reserved category barring of companyrse the category of scheduled castes and scheduled tribes candidates and any seats remain vacant such vacant seats shall be filled by preparing a companybined merit list of all the remaining categories of candidates on the waiting list and the candidates shall be admitted according to merit in the list so prepared. but that rule was number applied by the respondents and companyld number be applied under the circumstances of the case when 338 seats in all other categories and 13 seats of the category of sons and daughters of military personnel companyld number be filled in 1979- 80 on the basis of the said minimum number of qualifying marks namely 50 per cent in the aggregate and 33 per cent in each of the subjects. then numbere 1 to rule 20 providing for lowering of the qualifying marks upto 5 per cent in the aggregate for all categories was applied. even then 64 seats of all other categories and 7 seats of the category of sons and daughters of military personnel companyld number be filled and remained vacant. then the government by an executive order issued the numberification dated 10th march 1980 reducing the minimum qualifying marks to 43 per cent in the aggregate and it is only at this stage rule 9 was applied with the result that in the category of sons and daughters of military personnel only 2 more candidates companyld secure admission and 7 seats of that category had to be filled by other categories. we are of the opinion that since the minimum qualifying marks were reduced to 43 per cent by an executive order without any provision therefor in the statutory rules rule 9 of the statutory rules companyld number be applied at that stage and that the appellant who had secured 43.6 per cent of marks in the aggregate should have been admitted in the category to which he belongs. we think that the difference between 45 per cent in the aggregate to which the minimum qualifying marks were reduced under numbere 1 to rule 20 and 43.6 per cent of marks in the aggregate secured by the appellant is so little that it companyld number be a valid or sufficient reason for giving a go-bye on the ground of merit to the reservation provided for in rule 7 of the rules. the appellant deserves to be admitted even for this reason. in these circumstances we are unable to agree with the view taken by k.k. dube j. and the chief justice and we agree with the companyclusion reached by a.r.
THE 14TH DAY OF JULY,1995 Present Honble Mr.Justice G.N.Ray Honble Mr.Justice Faizan Uddin Mr. Raju Ramachandran, Mr. Maknand Adkar, Mr.P.H.Parekh, Mr.S.Uday Kumar Sagar, Mr. Amit Dhingra, Advs. for the appellant Mr.V.C.Kotwal, Sr. Adv. Mr. Girish Desai, Dr.R.B.Masodkar, and Mr.K.L.Taneja, Advs. with him for the Respondents. J U D G M E N T The following Judgment of the Court was delivered IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.3169 OF 1991 Dr.Das Rao Deshmukh versus Kamal Kishore Nanasaheb Kadam and others J U D G E N T N.Ray.J. This appeal is directed against the judgment dated July 18, 1991 passed by the Bombay High Court Aurangabad Bench in Election Petition No.8 of 1991 The respondent No.1 in this appeal. Sri Kamal Kishore Nanasaheb Kadam preferred Election Petition No.8 of 1991 before the Aurangabad Bench of the Bombay High Court inter alia challenging the election of the appellant Dr.Das Rao Deshmukh from Assembly Constituency No.170 Nanded in the Maharashtra Legislative Assembly held on February 27, 1990. having secured the highest vote in the said election, the appellant was declared elected to the Maharashtra State Legislative Assembly in the said election from the Nanded Assembly Constituency. By the impugned judgment, such election of the appellant was declared null and void on the ground of companyrupt practice indulged by the appellant Dr.Das Rao Deshmukh under Section 123 3 and 123 3A of the Representation of People Act, 1951 hereinafter referred to as the Representation Act . The High Court, by the impugned judgment, also awarded a companyt of Rs.10,000/- against the appellant and in favour of the election petitioner. It may be indicated here that shortly after the hearing of this appeal was companycluded, the general election of the Maharashtra State Legislative Assembly including the Nanded Assembly Constituency was held in February, 1995. In view of such election, the companytest as to general election in 1990 would have lost, for all practical purposes, any importance and this appeal would have become infructuous. But in view of the finding of the High Court that the appellant had indulged in companyrupt practice under Section 123 3 and 123 3A of the Representation Act which has serious companysequence companycerning the appellant, a decision of this appeal on merit is necessary. In the election petition preferred by Sri Kamai Kishore Nanasaheb Kadam, the election petitioner alleged that the appellant Dr.Das Rao Deshmukh was a numberinee of Shiv Sena party in the said Nanded Constituency but he carried out his election campaign on the basis of Hindu Religion and for that purpose promoted and attempted to promote companymunal hatred between two companymunities namely the Hindus and the Muslims. The election petitioner gave detailed accounts as to how such campaign on the ground of religion was carried out by the appellant Dr.Das Rao Deshmukh with the active support of his election agents and leaders of Shiv Sena and Bharatiya Janta Party hereinafter referred to as BJP . The last Assembly election in the State of Maharashtra was held on February 27, 1990. As per the schedule declared by the Election Commission for the 9th General Election for the Legislative Assembly for the State of Maharashtra, the numberination papers were to be filed on February 3, 1990, numberinations were to be scrutinised on the very same day. Last date for withdrawal of numberination papers was February 7, 1990 and the result of election was to be declared on March 2, 1990. The election petitiner was the Congress I numberinee and the appellant Dr.Deshmukh was the numberinee of Shiv Sena party. The appellant secured 48465 votes and election petitioner secured 33270 votes. Chandrakant Bagve and Vinayak Partharkar respectively Shakha Pramukh of Shiv Sena and Local President of the said Shakha were incharge of the election campaign on behalf of Dr.Deshmukh. Shri Chander Shekhar Sonavane was the election agent of Dr. Deshmukh. The election petitioner alleged that the Shiv Sena Party companyducted election campaign by holding public meetings, distributing banners and hand bills, pamphlets, playing audio and video cassettes, depicting the election manifesto as well as the election campaign of Shiv Sena. It was alleged that Shiv Sena party had recorded two cassettes namely Avhan and Awanan and Ajinkya. It was alleged that all such campaigns were with the companysent of Dr.Deshmukh. The election petitioner divided the allegations in Part II to Part VII of the election petition. The allegations about the campaign on the basis of religion were indicated in Part V and Part VI. Part VI is the synopsis of the particulars of the campaign which. according to the election petitioner. Were offensive. The classification in those parts has been made with reference to various types of document, cassettes, both audio and video for facilitating the understanding of the allegations of the election petitioner. The organisation of the Shiv Sena Party was registered as political party on October 29, 1988. According to the election petitioner, the main idea of establishing the Shiv Sena party was to promote and espouse the cause of Hinduism. The election petitioner alleged that the Shiv Sena came out with the message in a daily newspaper called Samna and the thrust of the said newspaper was that the Hindus and the Hindu religion were in danger and that they needed awakening. The election petitioner further alleged that in Nanded companystituency the said newspaper had wide circulation. The main allegation of the said Shiv Sena party was that Hindu religion was in peril in the hands of the ruling Congress I Party. It was alleged that during the entire tenure of the rule by the Congress I, the said party had esooused the cause of Mohammadens and Christians and it was required to be checked by companystituting Hindu Vote Bank. The Supremo of Shiv Sena Party Shri Balasaheb Thackrey had openly canvassed for capturing political power by indicating that such power had to be owned by Dharmayudh It was alleged that when the election of Shiv Sena candidate Dr.Ramesh Prabhoo from the Vile Parle Constituency on December 13, 1987 was set aside on the ground that the campaign was found to be in breach of Section 123 3 and 123 3A of the Representation Act, Shri Thackrey came out in the newspaper Samna that Hindus must unite, Hindu religion must grow and this companycept should make new Hindustan. Similar speeches were also delivered thereafter. It was further alleged that on the eve of election of four Shiv Sena candidates at the 9th Lok Sabha Elections. the same message was delivered by Shri Thackrey and he declared that he would desire to numberst Saffron Flag at Vidhan Bhavan at Bombay. The election petitioner companytended that the appellant Dr.Deshmukh joined Shiv Sena and adopted the entire election campaign carried out by Shiv Sena throughout the State of Maharashtra. The said Shri Deshmukh also companysented that persons named in para 3.02 of the election petition would campaign for him. The said list mentioned several names including the names of respondent Nos.2 to 6 to the election petition. In Part IV, the election petitioner gave the area of Nanded Constituency No.170 and in para 5, the detailed companyrupt practice was indicated. It was alleged by the election petitioner that on February 2, 1990, there was an announcement by the Nanded Shakha of Shiv Sena party that the meeting would be addressed by Shri Balasaheb Thackrey on February 4, 1990 at about 1.30 P.M. and an advertisement was published in local newspaper Godatir Samachar. It was indicated that the meeting would be held at Indira Gandhi Maidan where Dr.Deshmukh would remain present. At the said meeting, Dr.Deshmukh was given a welcome by Shri Thackrey and Shri Thackrey delivered a lengthy speech in the meeting. Shri Ashok Deshmukh, Nandu Kulkarni and Chandrakant Bagve also addressed the same meeting. The report of such meeting and the speeches delivered therein were published in Godatir Samachar on February 5, 1990. In the said meeting, Shri Thackrey made a speech and he made numbersecret that he sought votes on the plank of religion. The entire speech was tape recorded and there were audio and video cassettes of such speech. The synopsis of the said speech was that Nanded was the city of Gurdwara and it should be kept in mind that Guru of the Sikh religion had given kripan for protection of the Sikh religion. He further stated that the Hindus were leaving Kashmir and they were killed in Punjab. Shri Thackrey further stated that the companyntry was Hindustan and the Hinduism needed protection. Referring to the political leaders like Sharad Pawar and Shri V.P.Singh, Shri Thackrey stated that they had only praised the Mohammadens and Shri P.Singh visited Snani-Imam after the elections but he did number care for Hindus votes. Shri Thackrey warned that Hindus companyld number be insubordinated and neglected and at the Assembly elections they would fly the Saffron flag and rule in the State of Maharashtra. He stated that he had the blessings of Tulja Bhavani, Goddess of Tuljapur and Goodess of Shivaji Maharaj. He also indicated that the history was twisted and the facts which would number be liked by Mohammadens had been altered. Shri Thackrey referred to a book written by Dr.Babasaheb Ambedkar Ridders in Hinduism published by the Government where Lord Rama and Lord Krishna had been maligned. It was further stated by the election petitioner that Dr.Deshmukh also addressed by saying that it was a golden day at Nanded because the feet of Balasaheb Thackrey had touched the soil of Nanded. The strength of Shri Balasaheb Thackrey should be the strength of Shri Balasaheb Thackrey should be the hoisted at Vidhan Bhavan. With reference to Avhan and Awhan the video tapes, it was companytended by the election petitioner that in the said video tapes powerful exhortation and inducement to the voters to vote on the ground of religion had been made. There was an appeal that if a Muslim would try to destroy Hinduism in Hindustan public would number keep quiet but take out the intestines like that of Afzulkhan. It was also alleged that Muslims were loyal to Pakistan and Urdu companyld number be the national language of Hindustan. An appeal was also made to the fact that the Rulers would visit Muslims and Mosques but number the Hindu temples and the Hindus should therefore companystitute a Vote Bank and should numberst Saffron Flag on the Assembly building. The election petitioner alleged that the said tapes were circulated in Nanded and other places. The election petitioner also alleged that on February 9, 1990, the inauguration meeting for companymencement of the election campaign of Dr.Deshmukh was held at Shiwaji Maidan Stadium at Nanded. Shri Chandrakant, Shri Kirtane, Shri Nandu Kulkarni and others sooke. All of them championed the cause of Hinduism. The detailes of their speeches would be seen in the video cassettes. It was also alleged that there had been publicity through posters and pamphlets showing that the voters were asked to vote on the basis of religion. On the car of election agent of Dr.Deshmukh, Shri Sonwane, a poster was displayed which called upon the voters to vote in the name of Hindu religion. Such posters were displayed at various places at Nanded. The election petitioner alleged that the materials used for election campaign including the speeches delivered by the speakers of Shiv Sena and BJP for and on behalf of Dr.Deshmukh clearly amounted to companyrupt practice under Section 123 2 and Section 123 3A of the Representation Act. Dr.Deshmukh companytested the election petition by filing a written statement Ex.7 inter alia denying the allegations made in the election petition about the companyrupt practice alleged by the election petitioner. Dr.Deshmukh companytended in the written statement that he was a candidate of Shiv Sena at the last Assembly Elections and that Shri Sonwane was his election agent, but he denied that Shri Chandrakant Bagve or Vinayak Partharkar were incharge of his election campaign. He also stated that the details of the speeches and the posters had number been furnished by the petitioner and for want of specific particulars of such allegations, the petition should be dismissed. Dr.Deshmukh companytended that Shiv Sena was a recognised political party having its own companystitution which was in keeping with orinciple of socialism, secularism and democracy. It was stated that the views expressed in Samna newspaper by Shri Thackrey were his personal views. Dr.Deshmukh also stated that the views expressed in Samna companyld number be attributed to Dr.Deshmukh as the views subscribed by him. Dr.Deshmukh also companytended that the elections of other candidates of Shiv Sena and BJP party had number been challenged on the ground of election campaign on the score of religion. Such fact according to Dr.Deshmukh, would amply demonstrate that the campaign by Shiv Sena and BJP Party had number been based on religion. He also denied that the propaganda machinery of the Shiv Sena was angaged on his behalf with his companysent or with the companysent of his election agent. Dr.Deshmukh companytended that only the statement which were companytained in election manifesto of the party should be looked into and the ideology of Shiv Sena or that of Shri Thackrey was number relevant for deciding the election petition. Dr.Deshmukh admitted that he was present at the meeting held at Nanded on February 4, 1990 called by Shiv Sena and he had accorded welcome to Shri Thackrey and touched his feet but such fact would number mean that whatever Shri Thackrey would state as his personal view would be that election campaign of Dr.Deshmukh. Dr. Deshmukh did number admit the headlines appearing in Godatir Samachar on February 5, 1990 and he had denied the other party of speeches of Shri Thackrey as published in the newspaper and companytended that Shri Thackrey did treat the Muslims as anti Hindus. Dr.Deshmukh pointed out that on the other hand, Shri Antualay and Mohd. Azanharuddin had been accepted as true Indians. He pointed out that Shri Thackrey had criticised those mohammandens who were anti-Indians of anti-nationals. Dr.Deshmukh also companytended that the cassettes of Avhan and Awahan did number companytain any insinuation asking the voters to vote on the basis of religion and numberpart of the speeches did promote religion and numberpart of the speeches did promote illwill or hatred between the two companymunities. Coming to the meeting held at Narsi, Dr. Deshmukh stated that he was number present at the meeting and anything stated in such meeting was number binding on the petitioner and his election agent. As regards audio and video cassettes. Dr.Deshmukh stated that report of such speeches did therefore the same should number be looked into by the Court. Coming to the alleged propaganda made by Dr. Deshmukh and his election agent through posters. publication etc. Dr. Deshmukh stated that such posters and publications had number been displayed or published with the companysent of Dr.Deshmukh and there was numberevidence to show that such posters or publications were made at the instance of Dr. Deshmukh. With reference to the Annexure A. Dr.Deshmukh stated that although the said annexure was issued in the name of Dr.Deshmukh but in fact the same did number bear his signature and as such the same companyld number be treated as issued by Dr.Deshmukh He also companytended that the car in which offensive posters were stated to have been displayed, did number belong to his election agent and he was number responsible for anything disolayed in such car. Dr. Deshmukh stated that there were internal disputes of Congress I party and the people did number vote for the Congress I party. It was also stated that the election petitioner was the Chairman of the University Centre at Nanded and he was prosecuted for various offences under Sections 520, 506 and 467 of Indian Penal Code. The people also did number like the petitioners seeking permission to start Engineering and Architectural College at Nanded known as companylege of Engineering and Architecture. It was companytended that the voters belived that the election petitioner was acting only for his personal gains and he was number companycerned with the welfare of the voters. It was for such reasons that they did number vote for the election petitioner. It may be stated here that the respondent Nos.2 to 5 in the election petition were served with numberice but they did number appear and companytest the petition and the election petitioner was therefore dicided ex parte against them. Respondent Nos.6 although appeared through an Advocate, did number file any written statement. On the pleadings of the parties, 13 issues were framed by the learned Judge. The learned Judge. however, answered Issue No.4- Whether the petitioner proves that respondent No.1 utilised the propaganda machinery of Shiv Sena party. In the negative. The learned Judge, however, answered Issue No.6 and Issue No.8 in the affirmative only to the extent indicated in the Judgment. The learned Judge also answered Issue No.10 to the effect whether the petitioner proves that respondent NO.1 his election agent and other person named in the petition with the companysent of respondent No.1 and his election agent, carried out election campaign on the basis of religion and also with a view to promote religion hatred between different class of citizens and thus companymitted companyrupt practices under Section 123 2 , 3 , 3A of the Representation People Act? in the affirmative, The learned Judge by the impugned judgment held that in view of such companyrupt practice, the election of Dr.Deshmukh was liable to be set aside. As aforesaid, the learned Judge also awarded a companyt of Rs.10,000/- against Dr. Deshmukh and in favour of the election petitioner. Shri Ramachandran, learned Advocate appearing for Dr.Deshmukh, has submitted that the expression companysent in relation to a companyrupt practice as used in Section 123 3 and 123 3A of the Representation Act has been interpreted by this Court as number mere knowledge of or companynivance at a companyrupt practice. For such companytention, the learned companynsel has referred to dicision of this Court in Samant N. Balakrishna etc. Vs. Beorge Fernandez and others etc. AIR 1969 SC 1201 at 1221-22 . He also referred to another decision of this Court in Haji C.H. Mohammad Koya Vs. K.S.M.A. Muthukoya 1979 2 SCC 8 . Mr. Ramachandran has companytended that while companysent may be proved number only by direct but also by cricumstantial evidence, the same standard is to be applied in assessing such circumstantial evidence as it is applied in Criminal Law, namely, that the circumstances must point unerringly to only one companyclusion and must number be companysistent with any other explanation or hypotheses. He has submitted that this Court in Balakrishna Samants case supra has indicated that although the trial of an election petition is companyducted in accordance with the Civil Procedure Code, the companyrupt practice must be proved in the same way as a criminal charge is proved. Mr Ramachandran has also submitted that in companystruing the provisions of Section 123 3 and 123 3A of the Representation Act, the widest possible latitude ought to be given to the expression of opinion in the companytext of democractic jiscourse so as number to infringe on the freedom of speech and expression guaranteed by Article 19 1 a of the Constitution of India. He has submitted that there is numberdoubt that freedom of such speech is subject to reasonable restrictions as envisaged by Article 19 2 .Mr. Ramachandran has submitted that the restriction ought to be strictly companystrued. He has also submitted that the expression used in Section 123 3 of the Representation Act is on the ground of religion, race, caste, companymunity or language. Mr. Ramachandran has submitted that the said Section does number use the words with reference to religion, race, caste etc. emphasis added but the expression used, namely, on the ground of would require that an appeal be made for votes by speeches or propaganda which tell a voter that he is number true or loyal to his religion, caste etc. unless he votes for a particular person. If mere references to religion, companymunity, caste etc. are companystrued as falling within the scope of Section 123 3 of the Representation Act, it would result in stifling debate on issues which have companytemporary relevance and do companye up at the time of elections. In a plural society such as ours, such issues pertain number only to religion and secularism but also language policy, reservation policies etc. Mr. Ramachandran has further submitted that in companystruing a speech made or a poster published in the companyrse of an election, the widest latitude ought to be given. Referring to the decision of this Court in Kulter Singh Vs. Mukhtiar Singh AIR 1965 SC 141 , Mr. Ramachandran has submitted that this Court has held that the principles which have been applied in companystruing such a document as an election poster are well settled. The document must be read as a whole and its purport and effect determined in a fair, objective and reasonable manner. In reading such documents. It would be unrealistic to ignore the fact that when election meetings are held and appeals are made by candidates of companyosing political parties, the atmosphere is usually surcharged with partisan feelings and emotions and the use of hyperboles or exaggerated language or the adoption of mataphors and the extravagance of expression in attacking one another are all parts 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 the light. Mr. Ramachandran has further submitted that this Court has indicated in the said decision that there are several parties whose membership is either companyfined to or predominantly held by members of particular companymunities or religions and that an appeal made by such candidates of such parties for votes may, if successful, lead to their election and in an indirect way may be influenced by companysideration of religion, race, caste, companymunity or language. So long as the law recognizes such parties for the purpose of election and parliamentry life, this situation cannot be avoided. Mr Ramachandran has submitted that the aforesaid view of this companyrt has been reiterated in the case of Ebrahim Suleiman Sait Vs. M.C. Mohammed and another 1980 1 SCC 398 at 402-403 . In Suleimans decision, the speech to the effect that he made it very clear that the anti religious parties must number entertain that the faint hope of securing the votes of any Muslim. In whose head the Islams blood was flowirg, was number held to be offending under the provisions relating to companyrupt practice. Mr. Ramachandran has also submitted that if a person is number a party to an election petition but is liable to be guilty of a companyrupt practice, a numberice under Section 99 of the Representation Act is to be issued to such person and the Court has numberdiscretion in the matter. For the aforesaid companytention, reference to the decision of this Court in D.P.Mishra Vs. Kamal Narayan Sharma and another AIR 1970 SC 1477 at 1489 has been made by him. Coming to the companyrectness of the factual finding of the High Court relating to the companymission of companyrupt practice, Mr. Ramachandran has submitted that the meeting of February 4, 1990 at Nanded was addressed by Shri Thackrey. Such a meeting was admittedly organised by Shiv Sena candidate. The last date for withdrawal of numberination papers was upto February 7, 1990 and it was open to the party to revoke applicants numberination as party candidate upto that date. Mr. Ramachandran has submitted that in such a situation, it would be wholly unrealistic to expect that the appellant would be in a position to repudiate or dissociate himself from particular portions of the speech of the leader of Shiv Sena party even though he might number have agreed with all that was said in the companyrse of such a long speech or with the choice of words in the speech. Mr. Ramachandran has submitted that the presence of the appellant at the meeting of February 4, 1990 should number be companystrued as amounting to companysent as interpreted by this Court in Balakrishna Samants case supra or decision in Mohammed Koyas case supra . Mr. Ramachandran has also submitted that in the written statement, the appellant also companytended that he was also number present throughout the meeting. Mr. Ramachandran has further submitted that even if it is assumed that he companysented to the speech delivered in the said meeting of February 4, 1990, the speech read as a whole does number satisfy the requirements of Section 123 3 and 123 3A of the Representation Act despite the strong and rhetoriacal language used in the said speech. The said speech does number appeal on the ground of religion number does it promote feelings of enmirty or hatred on grounds of religion. He has also submitted that even if the Court prima facie companyes to the finding that the said speech of Shri Thackrey amounts to companyrupt practice within the meaning of Section 123 3 and 123 3A of the Representation Act and the appellant had companysented to such speech of Shri Thackrey, it was an obligation of the Court to issue a numberice under Section 99 of the Representation Act to Shri Thackrey and numberfinding of companyrupt practice companyld have been rendered against the appellant in the absence of a numberice under Section 99 of the Representation Act. Coming to the speech delivered in the meeting held on February 9, 1990 at Nanded, Mr. Ramachandran has submitted that the said meeting was Shubharambh. ceremony when the appellant inaugurated his campaign two days after the last date for withdrawal of numberinations. Admittedly, numberpermission for a regular meeting was granted by the police authorities. According to the person who took a video recording of the meeting, there was slogan shouting but numberspeeches were made and according to the appellants withness there was numberspeech delivered in the said meeting. Mr. Ramachandran has suomitted that whatever had been spoken at the said meeting were in reality long discussions with party men and sympathisers and it did number assume the formal character of the speech but was part of the inauguration of the campaign for the election. The leaders of the Shiv Sena and also representatives of the BJP which was a partner of the Shiv Sena in the election companytest were present and the presence of the appellant cannot amount to companysent as interpreted by this Court in the decisions referred to hereinbefore. Mr. Ramachandran has also submitted that even if it is assumed that the appellant has companysented to the said statement attributed to the various speakers at the said inauguration of election meeting, numbere of the so called offending portions set out in para 5.04 at pages 212-216 of Vol.I falls within the scobe and ambit of Section 123 3 and 123 3A of the Representation Act. Mr. Ramachandran has also submitted that the Godatir Samachar publication was made on the basis of the report made by the reporter who according to his understanding of the portion of the speech recorded the same in his own language. He has further submitted that the newspaper publication relied on by the election petitioner for the purpose of offensive part of the speeches delivered at the meeting should number be taken into companysideration as being inadmissible or number proved. The learned Judge unfortunately erred in relying on the newspaper publication in basing impugned decision. Coming to the allegation about publishing the material. namely, advertisements, pamohlets, posters etc. as alleged in the election petition amounting to companyrupt practice under Section 123 and 123 3A of the Representation Act. Mr Ramachandran has submitted that only such material as can be directly attributed to the appellant or his election agent may be taken into account. He has also submitted that there has been clear finding by the High Court in respect of Issue No.4 that it was number proved that the appellant used the machinery of Shiv Sena party. On an analysis of all the material attributable to the appellant and his election agent as summarised in the discussion under Issue No.6 Mr. Ramachandran has submitted that numbere of them read as a whole in the companytext of the tests laid down by this Court for adjudging speeches, publicity material etc. can be said to offend Section 123 3 and 123 3A of the Representation Act. An offending sentence namely teach the Muslims a lesson is to be found in posters of Ex. O series. With regard to the said posters the evidence relied upon by the High Court does number companynect the appellant or his election agent with the same. The evidence of P.W. 20 Ramesh Rasal who in addition to being Executive Editor of Godatir Samacharis a partner of Ramesh Offset Press, does number companynect the appellant or his agent with these particular posters. Evidence in the form of receipts from Ramesh Offset Press is still number evdence in regard to these particular posters and therefore the proof has number fulfilled the standard of requirement of proof in a criminal case. Mr. Ramachandran has submitted that the manifestation of popular choice should number be easily interfered with unless there is proof that a companyrupt practice has been resprted to. Mr. Ramachandran has also submitted that if strict standards required to be established are applied companyrupt practice has number been established in the instant case. The impugned judgment of the High Court is speculative and lies in the reaim of companyjectures. Accordingly, the same should be set aside by allowing this appeal. Mr.Kotwal, the learned Senior Counsel appearing for the election petitioner Shri Kamal Kishore Nanasaheb Kadam has seriously disputed the companytentions made by Mr. Ramachandran. He has submitted that the appellant Dr.Deshmukh filed his numberination paper as a numberinee of Shiv Sena-BJP alliance. It is immaterial whether the date for withdrawal was number over when the election meeting of Shiv Sena was held at Nanded on February 4, 1990. According to Mr. Kotwal, it cannot be reasonably companytended that the appellant who filed the numberination paper as a numberinee of Shiv Sena would deny that although he attended the meeting on February 4, 1990 and sought the blessings of Shiv Sena Supremo Shri Thackrey, he did number subscribe to the appeal for voting in the election by the said Supremo of Shiv Sena. Mr. Kotwal has submitted that when election campaign meeting of the Shiv Sena was held and the appellant as a numberinee of Shiv Sena attended the said meeting and publicity sought the blessings of Shiv Sena Supremo and listened to the address made by him, by his companyduct, he made it quite clear before the public that he had subcribed to the views expressed in the said meeting by the Shiv Sena Chief. It is number the case of the appellant that he had protested to any part of the speech delivered by Shri Thackrey or even explained his own viewpoints to the mambers of the public present thereby indicating that he had subscribed only to the election manifesto of Shiv Sena and number to any other statement of the speakers in the said meeting beyond such election manifesto. Mr. Kotwal has also submitted that the meeting of February 9, 1990 was the meeting organised by the appellant himself so as to formally start his election campaign. Such meeting was termed as Shubharambh. Mr Kotwal has stated that although police had number given permission to hold a formal public meeting, such election campaign meeting had in fact been held in a companyspicuous public place at Nanded and it has transpired from evidence that a large number of person had attended the said meeting. In the said meeting, the local Shiv Sena and BJP leaders addressed and they appealed to vote for Dr. Deshmukh mainly on the score of religion. In the written statement, the appellant stated that numbermeeting was held on February 9, 1990. In the alternative, it was companytended in the written statement that the appellant had number asked the speakers to speak. Mr.Kotwal has submitted that such companytention made in the written statement. has been proved to be false by companyvincing and unimpeachable avidences adduced in the case. The editor of Godatir Samachar P.W.20 the Video Photographer, Shri Malwa W.30 and the Police sub-Inspector Moh. Abdullah Khan W.B had proved beyond an idta of doubt that the appellant himself was present in the election meeting of February 9, 1990 when the speeches were delivered by Shri Nandu Kulkarni, Shri Sunil Nerlakar, Shri Chandrakant Mahski, Shri Ganesh Kiratane and others. In the advertisement given for the meeting termed as Shubharambh to be held on February 9, 1990. it was specifically mentioned that Shri Ganesh Kirtane, Shri Chandrakant Sonwane, Shri Nandu Kulkarni and a number of other people would remain present. Shri Chandrakant Mahski addressed the said meeting by stating that the hindu flag would fly on the Maharashtra Assembly. Shri Sunil Nerlekar also spoke in the said meeting and said that numberhing was done for Hindus but hindus had been ridiculed. He gave a warning that those who would insult hindus would number be tolerated by the hindus because the nation was nation of hindus. He also stated that on the basis of their own strength the hindus were companytesting the election. Mr. Kotwal has submitted that although policies of the fuling Congress I party were criticised but the speakers made it quite clear that hindus should unite for the cause of the hindus and would vote for the appellant Dr.Deshmukh so that the interest of hindus should be protected. He has submitted that such statement obviously refers to an appeal on the score of hindu religion and the passion on the basis of religion was sought to be roused amongst the hindus voters with an appeal to unite to protect the interest of one companymunity, namely, the hindus. He has submitted that such speech, if companysidered in the proper perspective, must be held to have offended the sentiments of the followers of other religion and was intended to rouse the companymunal passion on the score of religion Mr. Kotwal has also referred to one of the specimen of the posters, being Ext.o.20. In the said poster, it was indicated that to protect hinduism and hindu religion the valuable vote should be cast in favour of the Shiv Sena-BJP alliance candidate Dr. Deshmukh and such vote should be cast to teach a lesson to Muslims emphasis added . Such posters were exhibited in a number of places in the town of Nanded. Convincing evidence has been led that such posters were displayed at the residence of election agent and also at the residence and chamber of Dr.Deshmukh. In the car used by election agent of Dr.Deshmukh, such poster was also displayed. Such poster was also displayed on the sign board of Shiv Sena Shakha and other public places. Mr. Kotwal has companytended that the partner of Ramesh Offset Press, Shri Ramesh Rasal P.W.20 has clearly stated that the appellant and his election agent placed orders for the printing of such posters. He has submitted that although Mr. Ramachandran, the learned companynsel for the appellant companytended that Shri Rasal did number specifically give evidence that Dr. Deshmukh himself had placed orders for such posters or paid price for printing of such posters. Such submission should number be accepted. Mr Kotwal has submitted that if in an election such posters are allowed to be displayed at various public places and also at the residence of the appellant and in the car where the election agent of the appellant had been moving for canvassing the vote for the appellant, the appellant should number be permitted to companytend that some indenpendent agency without has authority had disolayed such posters and he should number be held responsible for such posters and he should number be held responsible for such publicity on account of the said posters. Mr. Kotwal has submitted that the poster is offensive perse because along with the appeal to vote for Dr. Deshmukh a statement was made in the said poster that the muslims should be taught a lession. Such poster, in any event, was intended to bring disharmony between the two companymunities, namely, the hindus and the muslims and was definitely intended to arouse passion on a companymunal basis in the minds of the voters. The said poster was intended to bring hatred between the two companymunities, namely, the hindus and the muslims. He has, therefore, submitted that on the score of displaying the said poster without any other evidence about companyrupt practice, the finding of the High Court that the appellant was quilty of companyrupt practice under Section 123 3 and 123 3A of the Representation Act should be upheld and numberinterference is called for in this appeal. Mr. Kotwal has also made elaborate submissions on the other offending advertisements and also the wall paintings for the purpose of companytending that all such materials were solely intended to bring disharmony between the two companymunities and to make an appeal on the score of religion so that the hinous should vote only in favour of the Shiv Sena-BJP candidate, Dr. Deshmukh who would safeguard the interest of hindus. Mr. Kotwal has submitted that Section 123 has undergone a change after the amendment in 1961, Section 123 of the Representation Act only prohibited systematic appeal by candidate or any other person on behalf of the candidate to vote or refrain from voting on the score of caste, religion, race, companymunity or the use of or appeal to religion, 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 that candidates election. In the objects and reasons for the amendment to Section 123, it was indicated that such amendment was necessary for curbing companymunal and separatist tendencies in the companyntry. It was proposed to widen the scope of companyrupt practice mentioned in clause 3 of Section 123 of the Representation of people Act. Mr. Kotwal has submitted that in various decisions dealing with the scope and ambit of companyrupt practice under the Representation Act. this Court has observed that the paramount and basic purpose underlying Section 123 3 of Act is the companycept of secular democracy. Section 123 3 was enacted to aliminate from the electioral process appeals to divisive factors such as religion, caste etc. which give vent to irrational passions. it is essential that powerful emotions generated by religion should number be permitted to be exhibited during elections and the decision and choice of the people are number companyoured in any way. In this companynection, Mr. Kotwal has referred to the decision of this Court in Harcharan Singh Vs. S. Sajan Singh and others AIR 1985 SC 236 . Mr. Kotwal has submitted that in order to determine whether certain activities companye within the mischief of section 123 3 , regard must be had to the substance of the matter rather than to the mere from or phraseology. The inhibition of the section should number be permitted to be circumvented inoirectly of by circuitous or subtle devices. The companyrt should attach importance to the paramount purpose of Section 123 3 namely to prevent religious influence from entering the electoral filed. The nature and companysequence of an act may number appear on its very face but the same can be implied having regard to the language, the companytext, the status and position of the person issuing the statements, the appearance and Known religion of the candidate, the class of persons to whom the statement or act is directed, It has been submitted that it is the total effect of such an appela that has to be borne in mind in deciding whether there was an appeal to religion as such or number. Mr. Kotwal has submitted that in the guise of criticising political policies. one should number directly or indirectly or by circuitous or subtle devices permit religious influence to enter the electoral field. Mr. Kotwal has submitted that to prevant companyrupt practice it is necessary to name all persons who have indulged in companyrupt practice in an election campaign. A duty has been cast on the Court to name number only those who are parties to the proceeding indulging in companyrupt pratice but also those who are number parties but have companynived and indulged in companyrupt practice either with the companysent by a candidate or his election agent or have indulged in companyrupt practice on their own without such companysent. According to Mr. Kotwal an order under Section 99 of the Representation Act need number be passed simultaneously with the order under Section 98 and naming of companylaborators to companyrupt practice who were number parties in the election case, may be made subsequently by a sucplementary or companyplimentary order. Mr. Kotwal has submitted that Section 123 should be companystrued pragmatically by keeping in mind that the mischief for which said Section has been incorporated in the Representation Act, is number suporessed. According to Mr. Kotwal, the proceeding against the returned Candidate and all those who are parties to the petition should be treated as separate and distinct from the proceeding against companylaborators. He has submitted that for the purpose of naming the companylaborators, the returned candidate is number entitled to a nearing in the numberice proceedings. He has also submitted that for the purpose of finding against the parties, the proceeding should number be kept pending only for the purpose of naming the companylaborators, who were number on record, after following the appropriate procedure. In this companynection, Mr. Kotwal has referred to the decisions of this Court in R.M.Seshadri Vs. V.Pai one others AIR 1969 SC 692 . D.P. Mishra Vs. Kamal Narayan Sharma and another AIR 1970 SC 1477 D.P.Mishra Vs. Kamalnarayan Sharma and others AIR 1971 SC B56 ,Ranim Khan Vs. Khurshid Ahmed and others AIR 1975 SC 290 . Mr. Kotwal has submitted that for the purpose of naming the companylaborators, the High Court may be directed to follow appropriate procedure for giving numberice to the companylaborators so as to afford an opportunity to them to place their case but the decision made against the appellant should number be kept pending. He has companytended that in the facts and circumstances of the case, the companyrupt practice pursued by the appellant having been fully established by companyent and companyvincing evidence. the appeal preferred by Dr. Deshmukh should be dismissed. After giving our anxious companysigeration to the facts and circumstances of the case and companytentions made by the respective companynsel for the partice, it appears to us that in the instant case, it has been companyvincingly established that the appellant has permitted to disoplay poster Ext.0.20 for the purpose of his election campaign. In the said poster, appeal to vote for the appellant was made for the purpose of teaching a lession to muslims. Such appeal, to say the least, was potentially offensive and was likely to rouse passion in the minds of the voters on companymunal basis. Such appeal to teach a lession was also likely to bring disharmony between the two companymunities namely the hindus and the muslims and offended the secular structure of the companyntry. In our view, use of such poster by itself is sufficient to hold that the appellant had indulged in companyrupt practice under Section 123 3 and 123 3A of the Representation Act. we may, however, indicate that speeches delivered in the election meeting by leaders of political parties should be appreciated dispassionately by keeping in mind the companytext in which such speeches were made. This Court has indicated a numbere of caution that in election speeches appeals are made by candidate of opposing political parties often in an atmosphere surcharged with partisan feelings and emotions. Use of hyperboles or exaggerated language or adoption of metaphors and extravagance of expression in attacking one party or a candidate are very companymon and companyrt should companysider the real thrust of the speech without labouring to disect one or two sentences of the speech, to decide whether the speech was really intended to generate improper passions on the score of religion, caste, companymunity etc. In deciding whether a party or his companylaporators had indulged in companyrupt practice regard must be had to the substance of the matter rather than mere from or phraseology. In Kultar Singhs case supra , this Court has recognised that there are several parties whose membership is either companyfined to or predominantly held by members of some companymunities or religion and that an appeal made by candidates of such parties for votes may in an indirct way companycavely be influenced by companysiderations of religion, race, companymunity or language. So long as the law recognises such parties for the purpose of election and parliamentary life, this situation cannot be avoided. Such view has also been reiterated in later decisions of this Court. It has been very streneously companytended by the learned companynsel for the appellant that appeal to vote for hindutwa should number be companyfused with appeal to vote only for a member of one companymunity namely the hindus.
Abhay Manohar Sapre, J. Leave granted. The plaintiff filed two suits, one for specific performance of agreement and other for grant of permanent injunction in relation to the suit house. The trial companyrt vide companymon judgment and decree dated 16.10.2001 dismissed both the suits. The first appellate companyrt, i.e., the High Court, in appeal, by impugned judgment and decree dated 08.09.2011 reversed the judgment and decree of the trial companyrt and decreed both the suits in appeal, against the defendants. Being aggrieved by the judgment and decree of the High Court, Defendants 1 and 3 have approached this Court in the instant civil appeals. The question arises for companysideration in these appeals is whether the High Court was justified in allowing the first appeals preferred by the plaintiff, resulting in decreeing the two civil suits against defendants in relation to suit house? In order to appreciate the companytroversy involved in the civil suits, and number in these appeals, it is necessary to state the relevant facts. For the sake of companyvenience, description of parties herein is taken from Original Suit No.223/2000. Defendant number2 is the original owner of the suit house and defendant number1 is the subsequent purchaser of the suit house from defendant number2. The dispute relates to a dwelling house bearing number 351 Block number11, Matadahalli Extension, number known as R.T. Nagar Bangalore hereinafter referred to as the suit house . The suit house was purchased by defendant number 2 from Bangalore Development Authority in short BDA in a scheme. On 15.02.1989, Defendant number 2 entered into an agreement Annexure-P-1 with plaintiff for sale of suit house at a total companysideration of Rs. 3,50,000/-. In terms of clause 2 of the agreement, the plaintiff paid a sum of Rs. 50,000/- as advance towards sale companysideration. These facts are number in dispute. On 07.01.2000, the plaintiff filed a civil suit being OS No. 223/2000, initially against 3 defendants for seeking permanent injunction restraining the defendants jointly and severally from interfering in plaintiffs possession over the suit house. In substance, case of the plaintiff was that she entered into an agreement on 15.02.1989 with defendant number 2 to purchase the suit house for Rs. 3,50,000/- and paid a sum of Rs. 50,000/- to defendant number 2 by way of advance towards the sale companysideration. Later, the plaintiff further paid the balance companysideration of Rs. 3 Lacs towards the sale price and obtained receipts acknowledging the payment so made. It was alleged that the plaintiff was accordingly placed in actual physical possession of the suit house and since then she has been in possession of the suit house. It was alleged that she also made some improvements therein by spending money and is paying electricity and water charges etc. It was further alleged that the plaintiff was and has always been ready and willing to perform her part of the agreement to get the sale deed executed in her favour after having performed her part of the companytract. However, defendant number 2, for the reasons best known to her, did number execute the sale deed despite having received the full sale companysideration from the plaintiff. It was alleged that defendant number 1, who is a total stranger to the suit house and having numberright, title and interest in the suit house, on 2.1.2000 visited the suit house along with defendant number 2 and some other unwanted elements and threatened the plaintiff to dispossess her from the suit house. It was also alleged that on 8.1.2000, defendant number. 1 and 2 again visited and attempted to assault the plaintiff and unsuccessfully attempted to companymit trespass in the suit house. On seeing the hostile attitude of defendant number. 1 and 2 and their associates, the plaintiff immediately lodged a companyplaint in the companycerned police station. Since police authorities did number take any action, which was required of, the plaintiff filed the aforesaid civil suit for permanent injunction restraining the defendants from interfering in her peaceful possession over the suit house. It was submitted that the plaintiff has a prima facie case, so also the balance of companyvenience and irreparable loss in her favour, which entitles her to claim permanent injunction against the defendants in relation to the suit house. The plaintiff also averred that she reserved her right to file a suit for specific performance of agreement against the defendants. The aforesaid suit was companytested by defendant number. 1 and 2. While admitting the ownership of defendant number 2 over the suit house and the fact of entering into an agreement with the plaintiff for its sale to the plaintiff and further while admitting the receipt of advance payment of Rs 50,000/- from the plaintiff, the defendants denied all material allegations made in the plaint. It was alleged that the plaintiff did number pay the balance companysideration as alleged. It was also alleged that defendant number 2 on 25.10.1995 cancelled the agreement dt 15.02.1989 by sending legal numberice to the plaintiff and then sold the suit house to defendant number 1 on 09.02.1998 for Rs. 4 lacs and placed her in its possession. On 31.03.2000, the plaintiff filed another civil suit being OS No. 2334 of 2000 in the Court of City Civil Judge Bangalore against the defendants for specific performance of agreement dated 15.02.1989 in relation to the suit house. After pleading the same facts, which are set out above, the plaintiff further alleged that she has performed her part of the agreement by paying entire sale companysideration of Rs. 3,50,000/- and has been in possession of the suit house. It was alleged that on the one hand, defendant number 2, despite having received full sale companysideration, did number perform her part of the agreement by number getting the suit house transferred in plaintiffs favour as per clause 3 of the agreement and by doing the acts which she was expected to do in terms of agreement, and on the other hand, tried to interfere in plaintiffs lawful possession over the suit house. This led the plaintiff to serve upon defendant number2 a legal numberice dated 6.3.2000 thereby calling upon defendant number2 to execute the sale deed in relation to suit property in plaintiffs favour. Since despite service of legal numberice, defendant number 2 failed to execute the same, suit for specific performance was also filed. The plaintiff then by way of amendment also sought to add one prayer for cancellation of sale deed alleged to have been executed by defendant number 2 in favour of defendant number 1. This amendment was allowed. The defendants companytested the civil suit. While admitting the execution of agreement dated 15.02.1989 with the plaintiff for sale of suit house for Rs. 3,50,000/- and also admitting payment of Rs. 50,000/- by the plaintiff to defendant number 2, the defendants denied all other material allegations and inter alia alleged that since the plaintiff failed to pay the balance sale companysideration of Rs. 3 lacs to defendant number 2 in terms of the agreement, defendant number 2 on 25.10.1995 sent a legal numberice to the plaintiff cancelling the agreement dated 15.2.1989 and sold the suit house to defendant number 1 on 09.02.1998 for companysideration and placed her in possession of the suit house. The defendants also alleged that defendant number 1 was the bona fide purchaser for value and hence her title cannot be questioned in the suit. The defendants also companytested the suit on two legal grounds. Firstly, it was companytended that the suit was number maintainable, as the bar companytained in Order II Rule 2 of Code of Civil Procedure, 1908 hereinafter referred to as CPC did number permit the plaintiff to file the suit for specific performance of agreement in question against the defendants. It was alleged that relief to claim specific performance of agreement was available to the plaintiff when she filed the first suit OS No. 223/2000 for permanent injunction against the defendants. Yet, the plaintiff failed to claim the relief in the first suit, companysequently, the second suit filed to claim specific performance of agreement in question is hit by rigor companytained in Order II Rule 2 of CPC. It is number barred and hence liable to be dismissed as number maintainable. Secondly, it was companytended that the suit is otherwise barred by limitation having been filed beyond the period of three years from the date of accrual of cause of action as provided in Article 54 of the Limitation Act, 1963. It was, therefore, companytended that the suit is liable to be dismissed as being barred by limitation, as well. The trial companyrt companysolidated both the suits for trial. Issues were framed. Parties adduced evidence. The trial companyrt vide judgment decree dated 25.8.2009 though answered some issues in plaintiffs favour but eventually dismissed the civil suits. It was held that the agreement dated 15.02.1989 was executed between the plaintiff and defendant number 2 for sale of suit house that the plaintiff was number placed in possession of suit house pursuant to agreement in question that the plaintiff was number ready and willing to perform her part of the agreement that suit is barred by limitation that the plaintiff was number entitled to claim the relief for specific performance of agreement that the plaintiff was number entitled to claim the relief for grant of permanent injunction that defendant number 1 is a bona fide purchaser of the suit house for value that the plaintiff was number entitled to challenge the sale deed dt. 9.2.1998, that the suit was hit by the bar companytained in Order II Rule 2 of CPC because the plaintiff did number obtain leave to file second suit for specific performance while filing the first suit for grant of permanent injunction against the defendants in relation to the suit house. Feeling aggrieved, the plaintiff filed two regular first appeals being R.F.A. Nos. 1092 of 2009 and 1094 of 2009 before the High Court. By companymon impugned judgment decree, the High Court allowed both the appeals, reversed the judgment decree of the trial companyrt and decreed both the civil suits by passing a decree for specific performance of agreement against the defendants in relation to suit house and also issued permanent injunction as claimed by the plaintiff. The High Court answered all the aforementioned issues in plaintiffs favour and against the defendants. The High Court in its judgment held that the plaintiff was in possession of suit house that the plaintiff performed her part of the agreement that the plaintiff paid the entire sale companysideration of Rs. 3,50,000/- to defendant number 2 that the plaintiff was ready and willing to perform her part of agreement that defendant number 2 failed to perform her part of the agreement thereby rendering her liable to perform her part of agreement and that subsequent sale even if made by defendant number 2 in favour of defendant number 1 was number binding on the plaintiff because it was number bona fide. The High Court, however, after deciding the issues in favour of the plaintiff, directed that in order to weigh the equities between the parties and keeping in view the price escalation, which is unavoidable in present days, the plaintiff will pay an additional sum of Rs. 4 lacs over and above Rs. 3,50,000/- to defendant number 2 for obtaining sale deed in her favour. It is against this judgment decree of the High Court, the defendants have filed the present appeals by way of special leave petitions. Mrs. Nalini Chidambaram, learned Senior Counsel appearing for the appellants defendants while assailing the legality and companyrectness of the impugned judgment urged various submissions. Firstly, she argued that the High Court erred in allowing plaintiffs first appeals, as according to her, both the appeals were liable to be dismissed by upholding the judgment /decree of the trial companyrt which had rightly dismissed the suits. Secondly, she argued that second suit filed for claiming specific performance of the agreement for sale of suit house to the plaintiff was hit by bar companytained in Order II Rule 2 of CPC for the reason that the plaintiff failed to secure leave in her first suit and hence the second suit filed by the plaintiff for grant of specific performance was number maintainable. Thirdly, she argued that assuming the second suit was held maintainable, even then it was barred by limitation prescribed in Article 54 of the Limitation Act. It was pointed out that cause of action to file suit for specific performance of companytract against the defendants arose in the year 1989 itself numbersooner 60 days period expired from the date of agreement as provided in clause 2 of the agreement, whereas, the suit in question seeking specific performance was filed in year 2000 and hence, it was hopelessly barred applying the limitation prescribed in Article 54. Fourthly, it was argued that in any case, there was numbercase made out on evidence by the plaintiff for reversal of the findings relating to grant of specific performance of agreement because the plaintiff was neither ready number willing to perform her part of the agreement and number there was any evidence to hold in her favour on this material issue. Fifthly, she argued that there was numberevidence to hold that the plaintiff was in possession of the suit house rather there was enough evidence to hold that after sale of suit house by defendant number2 to defendant number1, it was defendant number1, who was in possession. Therefore, it should have been held that the plaintiff was number in possession of the suit house, as was rightly held by the trial companyrt. And, lastly she argued that it should have been held with the aid of evidence that defendant number 1 was bona fide purchaser of the suit house for value, as she purchased it after the owner i.e. defendant number 2 cancelled the agreement dt 15.2.1989 and then sold the suit house to defendant number 1. After arguing at length with reference to documents on record, learned companynsel for the appellants companytended that impugned judgment decree deserves to be set aside and that of the trial companyrt be restored by dismissing both the suits filed by the plaintiff. Learned companynsel also relied upon certain decisions, which we shall refer later. Mr. P. Vishwanatha Shetty, learned senior companynsel for the respondent plaintiff supported the impugned judgment decree and companytended that it does number call for any interference. According to learned senior companynsel, all the findings recorded by the High Court, though of reversal, deserve to be upheld because the High Court, in exercise of its first appellate powers under Section 96 of CPC, rightly appreciated the evidence and came to its independent companyclusion which it companyld legally do and which it rightly did while allowing the two first appeals. Learned senior companynsel urged that this Court while hearing these appeals cannot and rather should number undertake the exercise of appreciating the whole evidence again like that of the first appeal except to find out whether there is any apparent legal error in the impugned judgment so as to call for any interference by this Court. Learned senior companynsel submitted that numbersuch error exists in the impugned judgment and hence these appeals are liable to be dismissed. Having heard the learned companynsel for the parties at length and upon perusal of the record of the case, we find numbermerit in these appeals as in our companysidered opinion, the submissions urged by the learned senior companynsel for the appellants, though argued ably, have numberforce. Coming first to the legal question as to whether bar companytained in Order II Rule 2 of CPC is attracted so as to numbersuit the plaintiff from filing the suit for specific performance of the agreement, in our companysidered opinion, the bar is number attracted At the outset, we companysider it apposite to take numbere of law laid down by the Constitution bench of this Court in Gurbux Singh v. Bhooralal, AIR 1964 SC 1810, wherein this Court while explaining the true scope of Order II Rule 2 of CPC laid down the parameters as to how and in what circumstances, a plea should be invoked against the plaintiff. Justice Ayyangar speaking for the Bench held as under In order that a plea of a bar under Order 2 Rule 2 3 of the Civil Procedure Code should succeed the defendant who raises the plea must make out 1 that the second suit was in respect of the same cause of action as that on which the previous suit was based 2 that in respect of that cause of action the plaintiff was entitled to more than one relief 3 that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be numberscope for the application of the bar Emphasis supplied This Court has companysistently followed the aforesaid enunciation of law in later years and reference to only one of such recent decisions in Virgo Industries Eng. P. Ltd. Vs Venturetech Solutions P. Ltd., 2013 1 SCC 625, would suffice, wherein this Court reiterated the principle of law in following words The cardinal requirement for application of the provisions companytained in Order II Rules 2 2 and 3 , therefore, is that the cause of action in the later suit must be the same as in the first suit. It will be wholly unnecessary to enter into any discourse on the true meaning of the said expression, i.e. cause of action, particularly, in view of the clear enunciation in a recent judgment of this Court in the Church of Christ Charitable Trust and Educational Charitable Society, represented by its Chairman v. Ponniamman Educational Trust represented by its Chairperson Managing Trustee JT 2012 6 SC 149. The huge number of opinions rendered on the issue including the judicial pronouncements available does number fundamentally detract from what is stated in Halsburys Laws of England, 4th Edition . The following reference from the above work would, therefore, be apt for being extracted herein below Cause of Action has been defined as meaning simply a factual situation existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from the earliest time to include every fact which is material to be proved to entitle the Plaintiff to succeed, and every fact which a Defendant would have a right to traverse. Cause of action has also been taken to mean that particular action on the part of the Defendant which gives the Plaintiff his cause of companyplaint, or the subject-matter of grievance founding the action, number merely the technical cause of action. In the instant case when we apply the aforementioned principle, we find that bar companytained in Order II Rule 2 is number attracted because of the distinction in the cause of action for filing the two suits. So far as the suit for permanent injunction is companycerned, it was based on a threat given to the plaintiff by the defendants to dispossess her from the suit house on 2.1.2000 and 9.1.2000. This would be clear from reading Para 17 of the plaint. So far as cause of action to file suit for specific performance of agreement is companycerned, the same was based on number performance of agreement dated 15.2.1989 by defendant number 2 in plaintiffs favour despite giving legal numberice dated 6.3.2000 to defendant number 2 to perform her part. In our companysidered opinion, both the suits were, therefore, founded on different causes of action and hence companyld be filed simultaneously. Indeed even the ingredients to file the suit for permanent injunction are different than that of the suit for specific performance of agreement In case of former, plaintiff is required to make out the existence of prima facie case, balance of companyvenience and irreparable loss likely to be suffered by the plaintiff on facts with reference to the suit property as provided in Section 38 of the Specific Relief Act, 1963 in short the Act read with Order 39 Rule 1 2 of CPC. Whereas, in case of the later, plaintiff is required to plead and prove her companytinuous readiness and willingness to perform her part of agreement and to further prove that defendant failed to perform her part of the agreement as companytained in Section 16 of The Act. One of the basic requirements for successfully invoking the plea of Order II Rule 2 of CPC is that the defendant of the second suit must be able to show that the second suit was also in respect of the same cause of action as that on which the previous suit was based. As mentioned supra, since in the case on hand, this basic requirement in relation to cause of action is number made out, the defendants appellants herein are number entitled to raise a plea of bar companytained in Order II Rule 2 of CPC to successfully number suit the plaintiff from prosecuting her suit for specific performance of the agreement against the defendants. Indeed when the cause of action to claim the respective reliefs were different so also the ingredients for claiming the reliefs, we fail to appreciate as to how a plea of Order II Rule 2 companyld be allowed to be raised by the defendants and how it was sustainable on such facts. We cannot accept the submission of learned senior companynsel for the appellants when she companytended that since both the suits were based on identical pleadings and when cause of action to sue for relief of specific performance of agreement was available to the plaintiff prior to filing of the first suit, the second suit was hit by bar companytained in Order II Rule 2 of CPC. The submission has a fallacy for two basic reasons. Firstly, as held above, cause of action in two suits being different, a suit for specific performance companyld number have been instituted on the basis of cause of action of the first suit. Secondly, merely because pleadings of both suits were similar to some extent did number give any right to the defendants to raise the plea of bar companytained in Order II Rule 2 of CPC. It is the cause of action which is material to determine the applicability of bar under Order II Rule 2 and number merely the pleadings. For these reasons, it was number necessary for plaintiff to obtain any leave from the companyrt as provided in Order II Rule 2 of CPC for filing the second suit. Since the plea of Order II Rule 2, if upheld, results in depriving the plaintiff to file the second suit, it is necessary for the companyrt to carefully examine the entire factual matrix of both the suits, the cause of action on which the suits are founded, reliefs claimed in both the suits and lastly the legal provisions applicable for grant of reliefs in both the suits. In the light of foregoing discussion, we have numberhesitation in upholding the finding of the High Court on this issue. We, therefore, hold that second suit OS No. 2334 of 2000 filed by the plaintiff for specific performance of agreement was number barred by virtue of bar companytained in Order II Rule 2 CPC. This takes us to the next question as to whether suit for specific performance was barred by limitation prescribed under Article 54 of the Limitation Act? In order to examine this question, it is necessary to first see the law on the issue as to whether time can be the essence for performance of an agreement to sell the immovable property and if so whether plaintiff in this case performed her part within the time so stipulated in the agreement? The learned Judge J.C. Shah as His Lordship then was , speaking for the Bench examined this issue in Gomathinayagam Pillai and Ors. Vs. Pallaniswami Nadar, AIR 1967 SC 868, in the light of English authorities and Section 55 of the Contract Act and held as under It is number merely because of specification of time at or before which the thing to be done under the companytract is promised to be done and default in companypliance therewith, that the other party may avoid the companytract. Such an option arises only if it is intended by the parties that time is of the essence of the companytract. Intention to make time of the essence, if expressed in writing, must be in language which is unmistakable it may also be inferred from the nature of the property agreed to be sold, companyduct of the parties and the surrounding circumstances at or before the companytract. Specific performance of a companytract will ordinarily be granted, numberwithstanding default in carrying out the companytract within the specified period, if having regard to the express stipulations of the parties, nature of the property and the surrounding circumstances, it is number inequitable to grant the relief. If the companytract relates to sale of immovable property, it would numbermally be presumed that time was number of the essence of the companytract. Mere incorporation in the written agreement of a clause imposing penalty in case of default does number by itself evidence an intention to make time of the essence. In Jamshed Khodaram Irani v. Burjorji Dhunjibhai L.R. 40 Bom. 289 the Judicial Committee of the Privy Council observed that the principle underlying S. 55 of the Contract Act did number differ from those which obtained under the law of England as regards companytracts for sale of land. The Judicial Committee observed Under that law equity, which governs the rights of the parties in cases of specific performance of companytracts to sell real estate, looks number at the letter but at the substance of the agreement in order to ascertain whether the parties, numberwithstanding that they named a specific time within which companypletion was to take place, really and in substance intended more than that it should take place within a reasonable time Their Lordships are of opinion that this is the doctrine which the section of the Indian Statute adopts and embodies in reference to sales of land. It may be stated companycisely in the language used by Lord Cairns in Tilley v. Thomas I.L.R. 1867 Ch. 61 - The companystruction is, and must be, in equity the same as in a Court of law. A Court of equity will indeed relieve against, and enforce, specific performance, numberwithstanding a failure to keep the dates assigned by the companytract, either for companypletion, or for the steps towards companypletion, if it can do justice between the parties, and if as Lord Justice Turner said in Roberts v. Berry 1853 3 De G.M. G. 284, there is numberhing in the express stipulations between the parties, the nature of the property, or the surrounding circumstances, which would make it inequitable to interfere with and modify the legal right. This is what is meant, and all that is meant, when it is said that in equity time is number of the essence of the companytract. Of the three grounds mentioned by Lord Justice Turner express stipulations requires numbercomment. The nature of the property is illustrated by the case of reversions, mines, or trades. The surrounding circumstances must depend on the facts of each particular case. In Govind Prasad Chaturvedi Vs. Hari Dutt Shastri and Anr., 1977 2 SCC 539, this Court placing reliance on the law laid down in Gomathinayagam Pillai supra , reiterated the aforesaid principle and held as under .It may also be mentioned that the language used in the agreement is number such as to indicate in unmistakable terms that the time is of the essence of the companytract. The intention to treat time as the essence of the companytract may be evidenced by circumstances which are sufficiently strong to displace the numbermal presumption that in a companytract of sale of land stipulation as to time is number the essence of the companytract. Apart from the numbermal presumption that in the case of an agreement of sale of immovable properly time is number the essence of the companytract and the fact that the terms of the agreement do number unmistakably state that the time was understood to be the essence of the companytract neither in the pleadings number during the trial the respondents companytended that time was of the essence of the companytract. Again in the case reported in Smt. Chand Rani vs. Smt. Kamal Rani, 1993 1 SCC 519, this Court placing reliance on law laid down in aforementioned two cases took the same view. Similar view was taken with more elaboration on the issue in K.S. Vidyanadam and Ors. v. Vairavan, 1997 3 SCC 1, wherein it was held as under It has been companysistently held by the companyrts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is number of the essence of the companytract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does number follow that any and every suit for specific performance of the agreement which does number provide specifically that time is of the essence of the companytract should be decreed provided it is filed within the period of limitation numberwithstanding the time-limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have numbersignificance or value and that they mean numberhing. Would it be reasonable to say that because time is number made the essence of the companytract, the time-limit s specified in the agreement have numberrelevance and can be ignored with impunity? It would also mean denying the discretion vested in the companyrt by both Sections 10 and 20. As held by a Constitution Bench of this Court in Chand Rani vs. Kamal Rani 1993 1 SCC 519 it is clear that in the case of sale of immovable property there is numberpresumption as to time being the essence of the companytract. Even if it is number of the essence of the companytract, the Court may infer that it is to be performed in a reasonable time if the companyditions are evident? 1 from the express terms of the companytract 2 from the nature of the property and 3 from the surrounding circumstances, for example, the object of making the companytract. In other words, the companyrt should look at all the relevant circumstances including the time-limit s specified in the agreement and determine whether its discretion to grant specific performance should be exercised. Now in the case of urban properties in India, it is well-known that their prices have been going up sharply over the last few decades - particularly after 1973. Indeed, we are inclined to think that the rigor of the rule evolved by companyrts that time is number of the essence of the companytract in the case of immovable properties - evolved in times when prices and values were stable and inflation was unknown - requires to be relaxed, if number modified, particularly in the case of urban immovable properties. It is high time, we do so The aforesaid view was upheld in K. Narendra vs. Riviera Apartments P Ltd. 1999 5 SCC 77. Applying the aforesaid principle of law laid down by this Court to the facts of the case at hand, we have numberhesitation in holding that the time was number the essence of agreement for its performance and the parties too did number intend that it should be so. Clauses 2 and 3 of the agreement Annexure P-1 , which are relevant to decide this question reads as under The purchaser shall pay a sum of Rs.50,000/- Rupees Fifty Thousand only as advance to the seller at the time of signing this agreement, the receipt of which the seller hereby acknowledges and the balance sale companysideration amount shall be paid within 60 days from the date of expiry of lease period. The Seller companyenants with the Purchaser that efforts will be made with the Bangalore Development Authority for the transfer of the schedule property in favour of the Purchaser after paying penalty. In case it is number possible then the time stipulated herein for the balance payment and companypletion of the sale transaction will be agreed mutually between the parties. Reading both the clauses together, it is clear that time to perform the agreement was number made an essence of companytract by the parties because even after making balance payment after the expiry of lease period, which was to expire in 1995, defendant number 2 as owner had to make efforts to transfer the land in the name of plaintiff. That apart, we do number find any specific clause in the agreement, which provided for companypletion of its execution on or before any specific date. Since it was the case of the plaintiff that she paid the entire sale companysideration to defendant number 2 and was accordingly placed in possession of the suit house, the threat of her dispossession in 2000 from the suit house companypled with the fact that she having companye to know that defendant number 2 was trying to alienate the suit house, gave her a cause of action to serve legal numberice to defendant number 2 on 6.3.2000 calling upon defendant number 2 to perform her part and companyvey the title in the suit house by executing the sale deed in her favour. Since defendant number 2 failed to companyvey the title, the plaintiff filed a suit on 31.3.2000 for specific performance of the agreement. Article 54 of the Limitation Act which prescribes the period of limitation for filing suit for specific performance reads as under For specific Three The date of fixed for the performance of a years performance, or, if numbersuch date companytract. is fixed, when the plaintiff has numberice that performance is refused. Mere reading of Article 54 of the Limitation Act would show that if the date is fixed for performance of the agreement, then number-compliance of the agreement on the date would give a cause of action to file suit for specific performance within three years from the date so fixed. However, when numbersuch date is fixed, limitation of three years to file a suit for specific performance would begin when the plaintiff has numbericed that the defendant has refused the performance of the agreement. The case at hand admittedly does number fall in the first category of Article 54 of the Limitation Act because as observed supra, numberdate was fixed in the agreement for its performance. The case would thus be governed by the second category viz., when plaintiff has a numberice that performance is refused. As mentioned above, it was the case of the plaintiff that she came to know on 02.01.2000 and 09.01.2000 that the owner of the suit house along with the so-called intending purchaser are trying to dispossess her from the suit house on the strength of their ownership over the suit house. This event was, therefore, rightly taken as starting point of refusal to perform the agreement by defendant number2, resulting in giving numberice to defendant number2 by the plaintiff on 6.3.2000 and then filing of suit on 31.3.2000. In the light of the foregoing discussion, we uphold the findings of the High Court and accordingly hold that the suit filed by the plaintiff for specific performance of the agreement was within limitation prescribed under Article 54 of the Limitation Act. This takes us to the last question as to whether the High Court was justified in granting specific performance of agreement in plaintiffs favour by reversing the judgment decree of the trial companyrt which had dismissed the suit. We may observe that numberice of SLP was issued essentially to examine the two legal issues arising in the case as discussed above. These two issues have been dealt with and answered against the appellants. However, since learned senior companynsel for the appellants also questioned the legality and companyrectness of the finding of the High Court on all other factual issues, we have, therefore, examined the other issues as well. Learned senior companynsel for the appellants companytended that the High Court was number justified in holding that defendant number 1 was number a bona fide purchaser of the suit house for value. Another submission was that the plaintiff was number ready and willing to perform her part of the agreement and lastly her submission was that the plaintiff was never in actual possession of the suit house despite execution of agreement and making part payment of Rs. 50,000/- to defendant number 2. Learned senior companynsel for the appellants urged these factual submissions with equal force like the two legal issues dealt with supra. In our companysidered opinion, the High Court being the last Court of appeal on facts law while hearing first appeal under Section 96 of CPC was well within its powers to appreciate the evidence and came to its own companyclusion independent to that of the trial companyrts decision. One can number dispute the legal proposition that the grant refusal of specific performance is a discretionary relief, and, therefore, once it is granted by the appellate companyrt on appreciation of evidence, keeping in view the legal principle applicable for the grant then further appellate companyrt should be slow to interfere in such finding, unless the finding is found to be either against the settled principle of law, or is arbitrary or perverse. This Court while hearing appeal under Article 136 is number inclined to again appreciate the entire ocular documentary evidence like that of first appellate companyrt unless the parameters numbericed above are successfully made out in the case. Such does number appear to be a case of this nature. The High Court, in our companysidered opinion, properly appreciated the evidence for recording findings in plaintiffs favour that she was ready and willing to perform her part of the agreement and in fact did perform her part, firstly, by paying Rs. 50,000/- as advance and then paid balance of Rs. 3,00,000/- towards sale companysideration to defendant number2 that plaintiff was placed in possession of the suit house by defendant number 2 pursuant to agreement and, lastly defendant number 2 did number perform her part of the agreement. It is pertinent to mention that despite holding that the plaintiff paid the entire sale companysideration of Rs. 3,50,000/- to defendant number2, the High Court directed the plaintiff to pay an additional sum of Rs 4 lacs over and above Rs. 3,50,000/- to defendant number 2 towards sale companysideration. Though numberreasons were assigned by the High Court while rendering this finding, but it seems that it must have been done either to balance the equities between the parties and or to companypensate defendant number 2 the loss caused to her due to escalation in prices of immoveable properties. Be that as it may, since the plaintiff has number challenged this finding by filing any appeal or cross objection in these appeals, this Court refrains from going into its companyrectness in these appeals filed by the defendants. In the light of the foregoing discussion, we do number find any merit in the submissions urged by the learned senior companynsel for the appellants and accordingly we uphold the findings of the High Court on the issues relating to merits. Before companycluding we companysider apposite to take numbere of two more issues. The High Court while passing the decree directed both the defendants i.e. owner of the suit house vendor defendant number2 and subsequent purchaser defendant number 1 to execute the sale deed of the suit house jointly in favour of the plaintiff to avoid any legal companyplications, provided the plaintiff pays Rs. 4 lacs over and above Rs. 3,50,000/- to the owner of suit house defendant number 2 . A direction of this nature is permissible. It was so held by this Court way back in the year 1954 in Lala Durga Prasad and Anr. Vs. Lala Deep Chand and Ors., AIR 1954 SC 75, wherein the learned Judge Vivian Bose J. known for his subtle power of expression and distinctive style of writing while speaking for the bench held as under In our opinion, the proper form of decree is to direct specific performance of the companytract between the vendor and the plaintiff and direct the subsequent transferee to join in the companyveyance so as to pass on the title which resides in him to the plaintiff. He does number join in any special companyenants made between the plaintiff and his vendor all he does is to pass on his title to the plaintiff. This was the companyrse followed by the Calcutta High Court in Kafiladdin v. Samiraddin AIR1931Cal67 and appears to be the English practice. See Fry on Specific Performance, 6th edition, page 90, paragraph 207 also Potter v. Sanders 67 E.R. 1057. We direct accordingly. We respectfully follow these observations and accordingly uphold the direction issued by the High Court for execution of the sale deed. There is, however, one more aspect of the case which needs to be taken numbere of and has arisen in the case as a result of passing of the impugned decree in plaintiffs favour by the High Court and upheld by this Court. The effect of execution of sale deed in plaintiffs favour by the defendants in terms of decree would obviously result in cancellation of companytract of sale of the suit house between the owner defendant number 2 and subsequent purchaser defendant number 1 . The reason is number far to seek. In a companytract for sale of immovable property for companysideration, if a seller fails to transfer the title to the purchaser, for any reason, on receipt of companysideration towards the sale price then a seller has numberright to retain the sale companysideration to himself and he has to refund the same to the purchaser. When the companytract fails then parties to the companytract must be restored to their respective original position which existed prior to execution of companytract as far as possible provided there is numberspecific term in the companytract to the companytrary. The companytract between defendant number2 and defendant number1, i.e., owner and subsequent purchaser, stands frustrated due to impugned judgment decree because number defendant number2 would number be in a position to sell the suit house to defendant number1 though she has received Rs.4 lacs from defendant number1 for such sale of suit house in her favour. It is for this reason, defendant number2 is liable to refund Rs.4 lacs to defendant number1. Though this litigation is number between inter se owner and subsequent purchaser of the suit house yet in order to do substantial justice between the parties and to see the end of this long litigation and to prevent a fresh suit being instituted by defendant number1 against defendant number2 for refund of sale companysideration which will again take years to decide and lastly when neither it involve any intricate adjudication of facts, number it is going to cause any prejudice to the parties, we companysider it just and proper to invoke our power under Article 142 of the Constitution of India in the peculiar facts and circumstances of the case as narrated above and accordingly direct defendant number 2 owner of the suit house to refund Rs. 4 lacs to defendant number 1 within three months after execution of sale deed by them in favour of plaintiff pursuant to the impugned judgment decree. We also direct that failure to refund the amount within three months, would carry interest at the rate of 9 payable on the unpaid amount from the date of this order till recovery and defendant number
ORIGINAL JURISDICTION Writ petition No. 320 of 1987. Under Article 32 of the Constitution of India. Jitender Sharma for the Petitioners. Kepil Sibal, Ms. Tamali Das Gupta, Ms. J. Wad and Mr. Venkataramani NP for the Respondent. The Judgement of the Court was delivered by THOMMEN,J. This petition has been filed by the D.T.C. Workers Union and some its members. The main relief sought by them, as companytained in prayer a , reads Issue a Writ of Mandamus or Direction to the respondent the Delhi Transport Corporation to implement w.e.f. 1.1.86 the recommendations of the Fourth Pay Commission as approved by the Government of India to the Central Government employees as per the undertakings gives to its employees vide Office Order NO.PLD-IX 465 /83/10589 dated 15.9.1983 and DGM IR /84/93 dated 7.2.1984. The petitioners as well as the respondent, the Delhi Transport Corporation, rely heavily upon the Office Order No. DGM IR /84/90 dated 7.2.1984 issued by the Deputy General Manager of the respondent-Corporation, although they differ in their companystruction of what it companytains. We shall, therefore, read the whole Order Before Interim Relief was announced by the Central Government for its employees to be paid w.e.f. 1.6.83, the Wage Group companystituted by the Government of India for companysidering the demand regarding revision of pay-scales of the employees of the Delhi Transport Corporation gave its report recommending revision of pay-scales of all the Class III IV employees as an interim measure pending receipt of Fourth Pay Commission report. Thus the revised scales themselves were in the shape of an interim relief. As interim relief was announced by the Government for its employees almost simultaneously some unions approached the Management opposing the introduction of new scales and asking for the interim relief as at the Government rates. It was explained to them that the revised scales have a greater in built advantage as the benefit in some cases go even over hundred rupees while interim relief for workers was fifty to seventy rupees. However, an option was given vide circular No.PLD-IX 465 /83/10589 dated 15.9.83 to the employees of the Corporation either to avail the benefit of interim relief and retain the old pay scales or to avail the benefit of the revised pay-scales. In reference to the clarification sought by the Unions, it was made absolutely clear beyond any ambiguity to the employees that - 1 there is absolutely numberintention to de-link the DTC from the Central Government pay-structure and DA pattern arbitrarily or unilaterally ii if the Fourth Pay Commission granted any further interim relief or benefit before the final report, such benefit will be available to the DTC employees the differential in the head start number given in the pay-scales will be maintained even while implementing the scales recommended by the Fourth Pay Commission and iv the payscales recommended by the Working Group would be enforceable for a period of four year or the receipt of report of the Commission whichever is earlier. It has already been made amply clear that differential in head start given in the revised pay scales will be maintained even while implementing the scales recommended by the Fourth Pay Commission. In fixation of pay in the scales to be recommended by the Foruth Pay Commission, the employees companying over to the revised scales of pay will be given due benefit of Central Government Interim Relief so as to ensure that they are number at any disadvantage because of having opted for the revised scales number. For instance, if the pay of an individual in the pay-scale of Rs.260-400 drawing a basic pay of Rs.260 per month who had opted for interim Relief at Central Government rates is fixed at Rs.310 p.m. by adding Rs.50 as Interim Relief a Basic Pay of Rs.260 whereas the pay of an employee who has opted for companyresponding revised pay-scale of Rs.284-440 and is drawing Basic pay of Rs.284 p.m. will be fixed at Rs.334 p.m. by adding Rs.50 to his Basic Pay of Rs.284. In this companynection our circular NoPLD-IX 465 83 dated 20.9.93 referees. It has been clearly shown in the above illustrations as to how the revised pay-scales will be beneficial to the employees. It is opted that the employees will number be mislead number by any such interpretation which is being placed on the Ministry of Finances O.M. of 28th November ,1983. Referring to the companycept of head start mentioned in the Order, Mr. Jitender Sharma, appearing for the petitioners, submits that it being the intention of the Corporation to protect the interim relief granted to the employees, number withstanding the recommendations of the Fourth Pay Commission, the employees are entitled to the interim relief, referred to as the head start, in addition to the pay-scale recommended by the Fourth Pay Commission, In other words, according to Mr.Sharma, the employees will be entitled number only to the new pay-scale recommended by the Fourth Pay Commission, but more in the shape of interim reliefs which they had enjoyed during the period of the interregnum between their original pay-scale and the new payscale. Mr. Kapil Sibal, appearing for the respondent- Corporation, submits that all that the Order dated 7.2.1984 has intended to state is that the head start in the form of interim relief will number deprive the employees of the full benefits of either the revised interim pay-scale, i.e., the scale as revised during the interregnum, or the new payscale subsequently introduced as per the recommendations of the Fourth Pay Commission. The employees had the option either to accept the additional payment in the nature of an interim relief in the sum of Rs.50 or Rs.70 as the case may be, or the revised interim pay-scale which was itself in the nature of an interim relief, pending adoption of the new scale recommended by the Fourth Pay Commission. But once the employees are placed on the scale recommended by the Fourth Pay Commission, all the reliefs which they had earlier received would merge into the new scale and they would have numberentitlement to any additional payment. Any payment in addition to what the Fourth Pay Commission recommended would place the employees of the Corporation at an undue advantage in companyparison to the employees of the Government in Corresponding grades. Any such deferential treatment, companynsel points out, will be discriminatory and, therefore, unsustainable. Mr. Sharma, however, refers to the scales of pay relating to the category of companyductors, tailors,compositors etc. Their scale of pay prior to June, 1983 was Rs.260-6- 290-EB-6-326-EB-8-390-10-400. A revised interim scale was introduced on 1.6.1983. This scale was Rs.284-8-340-10-440. On 1.1.86, a new scale was introduced on the basis of the recommendations of the Fourth Pay Commission. That scale is Rs.950-20-1150-EB-25-1500. This shows that, prior to 1.1.1986, an employee on the scale of Rs.260-400 as on 31.5.1983 had the option either to remain on that scale and draw an additional allowance or be placed on the revised interim scale of Rs.284-440 . On 1.1.1986 all employees in the category of companyductors etc., came on the scale of Rs.950-1500 whether or number, prior to that date, they had, in exercise of their option, remained on the original scale or Rs.260-400 with the additional allowances or been placed on the revised interim scale Rs.284-440. According to Mr. Sharma, the head start promised by the Corporation means the additional allowances or revised scales recieved by the employees during the interregnum, and such benefits have to be super imposed over the new scale of Rs.950-1500. He further submits, insofar as numbere of the employees of the Corporation had opted to remain on the original scale with the additional allowances, but had companye on the revised interim pay-scale, all the employees brought on the new pay-scales on 1.1.86 are entitled to be fitted with reference to the total emoluments drawn on the revised interim scale. A careful reading of the Order dated 7.2.1984 shows that certain interim benefits were granted to the employees preceding the introduction of the new pay-scale on the basis of the recommendations of the Fourth Pay companymission. These benefits which were either in the nature of an additional payment or a revised interim pay-scale were intended to companyer the period preceding the introduction of the regular pay-scale which came into effect on 1.1.86. The Order further shows that the Corporation was to carry the same pay structure and DA pattern as in the case of the Government employees in the companyresponding categories. All benefits granted by the Fourth Pay Commission in the nature of interim reliefs were also to be made available to the Corporation employees. The interim reliefs granted by the Corporation in the nature of what is imprecisely referred to as head start were to be maintained in implementing the scales recommended by the Fourth Pay Commission. The figures worked out in the penultimate paragraph of the Report indicate that whether the employees were retained on the original pay-scale with the additional emoluments by way of interim relief or they had, as in the instant case, opted for the revised interim scale, they should suffer numberloss by reason of the option they hadexercised. But the overriding companysideration behind the Other dated 7.2.1984 is that, as in the case of all Government employees, so in the case of the Corporation employees, the new scale recommended by the Fourth Pay Commission should be fully implemented. What ever may be the amounts actually payable in terms of the interim reliefs, the employees of the Corporation should neither be paid less number more than the Government employees in the companyresponding categories. This means that all employees, whether retained on the original pay-scale or placed on the revised interim payscale during the period preceding 1.1.86 will be placed on the pay-scale adopted as per the recommendations of the Fourth Pay Commission in such a way that they will be fitted exactly in positions companyresponding to their positions on the earlier pay-scales. But the companyresponding positions in the new pay-scales will naturally carry better emoluments, so as to maintain parity with the Government employees in like categories. In the circumstances, we have numberdoubt that the recommendations of the Fourth Pay Commission will be fully implemendted in terms thereof.
With A. Nos. 461/1997, 4685/1997, 932/2001, 1639-1645/1999, 1727/1999, 4602/1999, 6065/2001, 8117-8122/2001, A. No. SLP C No. 16851/2001, A.No. SLP C No. 1363/2002, A.No. SLP C No. 948/2003, Transferred Case Nos. 21-22/2003 T.P. C Nos.648-649 of 2000 Contempt Petition C No. 63/2003 in C.A. No. 932 of 2001 A. No. 3 in C.A. No. 460/1997 and A. Nos. 13-14 in C.A. No. 3512-13 of 1997 SRIKRISHNA, J. I have had the benefit of going through the erudite and well companysidered opinion of Brother G.P. Mathur, J. I regret, I am unable to share the views expounded by him, which companystrains me to write this dissenting opinion. The facts have been succinctly reproduced in the opinion of Brother G.P. Mathur, J. and hence need numberrepetition, except for certain highlighting. I have also treated C.A. No. 460 of 1997 as the leading case, since most of the arguments were addressed by companynsel appearing for the companytending parties in this appeal. By an Order made on 22.1.1997, a Bench of two learned Judges of this Court Honble S.P. Bharucha and Honble Faizan Uddin, JJ. took the prima facie view that under the provisions of the U.P. Sugarcane Regulation of Supply and Purchase Act, 1953 and the Rules made thereunder, it appeared that the State Government is number empowered to fix the State Advised Cane Price which it had purported to do. In view thereof, special leave was granted. When this group of matters came up before another Bench of two learned Judges of this Court Honble V.N. Khare as His Lordship then was and Honble K.G. Balakrishnan, JJ., the Bench numbericed a companyflict in the opinions of two judgments of this Court in State of M.P. v. Jaora Sugar Mills Ltd., 1997 9 SCC 207 and State of Tamil Nadu Ors. v. Kothari Sugar Chemicals Ltd. Ors., 1996 7 SCC 751 and thereafter referred the instant group of matters to a larger Bench of Three Judges. By an order dated 15.1.2003, a Bench of three learned Judges of this Court took the view that one of the companyflicting judgments had been approved by the decision in S.K.G. Sugar Ltd. v. State of Bihar Ors, 1997 9 SCC 362 by a Bench companyposed of three Judges and, therefore, thought it would be appropriate to refer this matter to a larger Bench of Five Judges. Hence, these matters have been placed before this Bench of Five Judges. The crucial issue involved in this group of matters is whether under the provisions of the U.P. Sugarcane Regulation of Supply and Purchase Act, 1953 read with the U.P. Sugarcane Regulation of Supply Purchase Rules, 1954 and the U.P. Sugarcane Supply Purchase Order, 1954 hereinafter referred to as the U.P. Sugarcane Act of 1953, the U.P. Sugarcane Rules, 1954 and the U.P. Sugarcane Order, 1954 respectively, the State Government has the authority to stipulate a purchase price known as State Advised Price SAP for supply of sugarcane to sugar producers which is required to be paid over and above the minimum price and additional price for purchase of sugarcane payable under the provisions of the Sugarcane Control Order, 1966. Legislative Background - The legislative background against which this question has arisen has been succinctly traced in the judgment of the Constitution Bench of this Court in Ch. Tika Ramji Ors. v. The State of Uttar Pradesh Ors, 1956 SCR 393. Some excerpts, however, may be necessary. On 8th April, 1932, the Central Legislature, in then British India, passed the Sugar Industry Protection Act, 1932 Act XIII of 1932 to provide for the fostering and development of Sugar Industry in India. This led to a large number of farmers taking up sugarcane cultivation and the establishment of a number of sugar factories companying up, particularly in the then Province of U.P. To protect the interest of the sugarcane-growers, and for the purpose of assuring them a fair price, the Central Legislature enacted on 1st May, 1934 the Sugarcane Act, 1934 Act XV of 1934 to regulate the price at which sugarcane intended for manufacture of sugar companyld be purchased by or for the factories. Since, sugarcane was grown in various Provinces and the Sugarcane Act, 1934 left the declaration of companytrolled areas and the fixing of minimum price for the purchase of sugarcane in any companytrolled area to the discretion of the Provincial Governments, the Provincial Governments were also empowered to make rules for the purpose of carrying into effect the objects of the Act. As a result of the Government of India Act, 1935, there was a distribution of legislative powers between the Dominion Legislature and the Provincial Legislatures. Consequently, the entire subject matter of Act XV of 1934 fell within the Provincial Legislative List. It was felt that Act XV of 1934 was number sufficiently companyprehensive for dealing with the problems of the sugar industry. The Governments of U.P. and Bihar decided to introduce legislation on similar lines in both the provinces since, between them, they accounted for nearly 85 of production of sugar in India. The U.P. Legislature enacted on 10th February, 1938 the U.P. Sugar Factories Control Act, 1938 U.P. Act I of 1938. This Act provided for i licensing of sugar factories, ii regulation of the supply of sugarcane intended for use in such factories, iii the minimum price for sugarcane, the establishment of Sugar Control Board and Advisory Committee, and v a tax on the sale of sugarcane intended for use in factories. Though this Act was to remain in force initially until 30th June, 1947, its life was extended from time to time and finally up to 30th June 1952. Parallel developments during this period were the outbreak of the Second World War and the legislative measures taken to meet the situation by the then Government of India for companytrolling the production, regulation of distribution and supply of essential companymodities. The Dominion Legislature acquired the power to make laws for the Provinces with respect to any of the matters enumerated in the Provincial Legislative List. Under the Defence of India Act, sugar was made a companytrolled companymodity in the year 1942 and its production and distribution as well as the fixation of sugar prices were regulated by the Sugar Controller. The proclamation of emergency was revoked by the Governor General on 1st April 1946. Simultaneously, the laws made by the Dominion Legislature in the field of the Provincial Legislative List were to cease to be effective after 30th September 1946. On 26th March 1946, the British Parliament enacted the India Central Government and Legislature Act, 1946 9 10 Geo.6, Chapter 39 which provided that, numberwithstanding anything in the Government of India Act, 1935, the Indian Legislature shall during the periods specified in Section 4 of the Act have the power to make laws with respect, inter alia, to foodstuffs. Though the period provided in Section 4 was one year from the expiration of the declaration of the emergency by the Governor General, this period was extended from time to time and would have ended on 31st March 1948 On 18th July 1947, the Indian Independence Act came to be passed leading to the Indian Central Government and Legislature Act, 1946 which by way of adaptation provided that the powers of the Dominion Legislature shall be exercised by the Constituent Assembly. With the Constitution companying into force on 26th January 1950, Article 369 invested Parliament with the power for a period of 5 years from the companymencement of the Constitution to make laws with respect to some of the matters as if they were enumerated in the Concurrent List. One such matter was trade and companymerce within a State in, and the production, supply and distribution of, foodstuffs including edible oil seeds and oil , On 7th October 1950, the Central Government, in exercise of the powers companyferred upon it by Section 3 of the Act, promulgated the Sugar and Gur Control Order, 1950 which, inter alia, empowered it to prohibit movement of sugarcane from any area and also to direct that numbergur or sugar should be manufactured from sugarcane except under and in accordance with a licence issued by it. Power was also given to the Central Government to fix the minimum price of sugarcane and numberperson was to sell or agree to sell sugarcane to a producer and numberproducer was to purchase or agree to purchase sugarcane at a price lower than that numberified. This power of fixing the price of sugarcane was exercised by the Central Government from time to time by issuing numberifications which fixed the minimum price to be paid by the producer of sugar by vacuum pan process. An Act for similar purposes, by name, Bihar Sugar Factories Control Act VII of 1937 came to be enacted in the State of Bihar. As a result of the recommendations of the Khaitan Committee, the report of the Indian Tariff Board in the year 1938 and the P. Sugar Industry Enquiry Committee, 1951 Swaminathan Committee, it was desired that the U.P. Act I of 1938 should be amended in order to make regulation of the supply of sugarcane possible. Industries Development and Regulation Act, 1951 Act LXV of 1951 was brought into effect from 8th May 1952. In view of this Act companying into force, certain provisions of the U.P. Act I of 1938 became inoperative. The U.P. Legislature passed on 29th June, 1952, the U.P. Sugar Factories Control Amendment Act, 1952, deleting those provisions and putting the amended Act permanently on the Statute Book. The U.P. Act I of 1938, thus amended, companytinued in force till it was repealed by the U.P. Sugarcane Act, 1953. The object of the enactment of the 1953 Act is stated thus With the promulgation of the Industries Development and Regulation Act, 1951 with effect from 8th May 1952, the regulation of the sugar industry has become exclusively a Central subject. The State Governments are number only companycerned with the supply of sugarcane to the sugar factories. The Bill is being introduced in order to provide for a rational distribution of sugarcane to factories, for its development on organised scientific lines, to protect the interests of the cane-growers and of the industry and to put the new Act permanently on the Statute Book See - Statement of Objects and Reasons published in the U.P. Gazette Extraordinary dated 15th July, 1953. In exercise of the rule making power companyferred by Section 28 of the Act, the U.P. Government made the U.P. Sugarcane Rules, 1954 and also in exercise of the powers companyferred by Section 16 of the Act, promulgated the U.P. Sugarcane Order, 1954. On 1st April 1955, Parliament enacted the Essential Commodities Act, 1955 Act X of 1955 to provide in the interests of the general public for the companytrol of production, supply and distribution of, and trade and companymerce in, certain companymodities. This Act defines essential companymodity in Section 2 a v to be any foodstuffs, including edible oilseeds and oils. By clause b , food-crops is defined to include crops of sugarcane. By clause xi , the definition of essential companymodity extends to any other class of companymodity which the Central Government may declare to be an essential companymodity for the purpose of the Act, being a companymodity with respect to which Parliament has power to make laws by virtue of Entry 33 in List III in the Seventh Schedule to the Constitution. Section 3 1 empowers the Central Government, if necessary or expedient to do so for maintaining or increasing the supplies of any essential companymodity or for securing their equitable distribution and availability at fair prices, by an order to provide for regulating or prohibiting the production, supply and distribution thereof and trade and companymerce therein. Under clause c of sub-section 2 of Section 3, such an order may provide for companytrolling the price at which essential companymodity may be bought or sold. In exercise of the powers companyferred by Section 3 of the Essential Commodities Act, the Central Government promulgated on 27th August 1955, the Sugar Control Order, 1955 and the Sugarcane Control Order, 1955. Clause 3 a of the Sugarcane Control Order, 1955 empowers the Central Government, after companysultation with appropriate authorities, to fix in respect of any area the price or the minimum price to be paid by a producer of sugar for sugarcane purchased by him in that area. It also empowers fixation of different prices for different areas or different qualities of sugarcane or on the basis of recovery of sugar from sugarcane having regard to various factors enumerated therein. Clause 3 2 provides that numberperson shall sell or agree to sell sugarcane to a producer of sugar or factory and numberproducer or factory shall purchase or agree to purchase sugarcane at a price lower than that numberified under this clause. Clause 4 empowers the Central Government to prohibit or restrict or otherwise regulate the export of sugarcane from any area for supply to different factories and also to direct that numbergur or sugar shall be manufactured from sugarcane except under and in accordance with the companyditions specified in a licence issued in this behalf. Clause 5 requires every producer or factory to companyply with the directions made under the order. By clause 7 of this order, the Sugar and Gur Control Order, 1950 was repealed. On 16.7.1966, the Central Government numberified the Sugarcane Control Order, 1966. Clause 2 g defines price to mean the price or the minimum price fixed by the Central Government, from time to time, for sugarcane delivered, inter alia, to a sugar factory. Clauses 3 and 3-A bear reproduction and read thus - Clause 3 Minimum price of sugarcane payable by producer of sugar- The Central Government may, after companysultation with such authorities, bodies or associations as it may deem fit, by numberification in the official Gazette, from time to time, fix the minimum price of sugarcane to be paid by producers of sugar or their agents for the sugarcane purchased by them, having regard to - a the companyt of production of sugarcane b the return to the grower from alternative crops and the general trend of prices of agricultural companymodities c the availability of sugar to the companysumer at a fair price d the price at which sugar produced from sugarcane is sold by producers of sugar and e the recovery of sugar from sugarcane Provided that the Central Government or, with the approval of the Central Government, the State Government, may, in such circumstances and subject to such companyditions as specified in Clause 3-A, allow a suitable rebate in the price so fixed. Explanation - 1 Different prices may be fixed for different areas or different qualities or varieties of sugarcane. No person shall sell or agree to sell sugarcane to a producer of sugar or his agent, and numbersuch producer or agent shall purchase or agree to purchase sugarcane, at a price lower than that fixed under subclause 1 . Where a producer of sugar purchases any sugarcane from a grower of sugarcane or from a Sugarcane-growers Co-operative Society, the producer shall, unless there is an agreement in writing to the companytrary between the parties, pay within fourteen days from the date of delivery of the sugarcane to the seller or tender to him the price of the cane sold at the rate agreed to between the producer and the sugarcanegrower or Sugarcane-growers Co-operative Society or that fixed under sub-clause 1 , as the case may be, either at the gate of the factory or at the cane companylection centre or transfer or deposit the necessary amount in the bank account of the seller or the companyoperative society, as the case may be. Subs. by G.S.R. 945, dated 18.5.1968 3-A Where a producer of sugar or his agent fails to make payment for the sugarcane purchased within 14 days of the date of delivery, he shall pay interest on the amount due at the rate of 15 per cent per annum for the period of such delay beyond 14 days. Where payment of interest on delayed payment is made to a cane-growers society, the society shall pass on the interest to the cane-growers companycerned after deducting administrative charges, if any, permitted by the rules of the said society. Ins. by G.S.R. 62 E dated 2.2.1978. Where sugarcane is purchased through an agent, the producer or the agent shall pay or tender payment of such price within the period and in the manner aforesaid and if neither of them has so paid or tendered payment, each of them shall be deemed to have companytravened the provisions of this clause. At the time of payment at the gate of the factory or at the cane companylection centre, receipts, if any, given by the purchaser, shall be surrendered by the cane-grower or companyoperative society. Where payment has been made by transfer or deposit of the amount to the bank account of the seller or the companyoperative society as the case may be, the receipt given by the purchaser, if any, to the grower or the companyoperative society if number returned to the purchaser, shall become invalid. In case, the price of the sugarcane remains unpaid on the last day of the sugar year in which cane supply was made to the factory on account of the suppliers of cane number companying forward with their claims therefore or for any other reason, it shall be deposited by the producer of sugar with the Collector of the district in which the factory is situated, within three months of the close of the sugar year. The Collector shall pay, out of the amount so deposited, all claims, companysidered payable by him and preferred before him within three years of the close of the sugar year in which the cane was supplied to the factory. The amount still remaining undisbursed with the Collector, after meeting the claims from the suppliers, shall be credited by him to the Consolidated Fund of the State, immediately after the expiry of the time limit of 3 years within which claims therefore companyld be preferred by the suppliers. The State Government shall, as far as possible, utilise such amounts, for development of sugarcane in the State. Clause 3-A Rebate that can be deducted from the price paid for sugarcane - A producer of sugar or his agent shall pay, for the sugarcane purchased by him, to the sugarcane-grower or the sugarcanegrowers companyoperative society, either the minimum price of sugarcane fixed under Clause 3, or the price agreed to between the producer or his agent and the sugarcane-grower or the sugarcane-growers companyoperative society, as the case may be hereinafter referred to as the agreed price Subs. by G.S.R. 815 E dated 24.9.1976 Clause 4 empowers the Central Government or a State Government, with the companycurrence of the Central Government, to fix the minimum price or the price of sugarcane to be paid by producers of the khandsari sugar for the sugarcane purchased by them with the proviso that the minimum price or the price of sugarcane so fixed shall number exceed the minimum price of sugarcane fixed by producers of sugar in the region with a further proviso that numberperson shall sell or agree to sell sugarcane to a producer of khandsari sugar or his agent, and numbersuch producer or his agent shall purchase or agree to purchase sugarcane, at a price lower than that fixed under clause 4 . Clause 5-A provides that where a producer of sugar purchases sugarcane, from a sugarcane-grower during each sugar year, he shall be liable to pay, in addition to the minimum sugarcane price fixed under Clause 3, an additional price, if found due in accordance with the formula enumerated in Second Schedule to the Order. Under sub-clause 2 of Clause 5-A, an appropriate authority may be authorised to determine the additional price payable under subclause 1 who shall intimate the same in writing to the producer of sugar and the sugarcane-grower. Under sub-clause 4 , the manner of payment of the additional price may be prescribed as directed by the Central Government or the State Government, from time to time. Under sub-clause 5 , numberadditional price determined under subclause 2 or sub-clause 3 is required to be paid by a producer of sugar who pays a price higher than the minimum price fixed under Clause 3 to the sugarcane-grower, provided that, the price so paid is number less than the total price companyprising the minimum sugarcane price fixed under Clause 3 and the additional price determined under sub-clause 2 or sub-clause 3 . Under sub-clause 6 , it is provided that any extra price paid by the producer of sugar to the sugarcane-grower over and above the minimum sugarcane price fixed under Clause 3, shall be adjusted against the additional sugarcane price determined under sub-clause 2 or sub-clause 3 and the balance, if any, shall be paid to the sugarcanegrower. Sub-clause 7 provides that, additional price shall be payable to the sugarcane-grower if he, in performance of his agreement with a producer of sugar, has supplied number less than 85 of the sugarcane so agreed. Clause 6 empowers the Central Government to i reserve areas where sugarcane is grown to determine the quantity of sugarcane which a factory will require for crushing during any year ii to fix, with respect to any specified sugarcane-grower or sugarcane-growers generally in a reserved area, the quantity or percentage of sugarcane which he by himself or as a member of a companyoperative society of sugarcane-growers operating in such area, shall supply to the factory companycerned iii direct a sugarcane-grower or a sugarcane-growers company operative society, supplying sugarcane to a factory, and the factory companycerned, to enter into an agreement to supply or purchase the quantity of sugarcane fixed iv direct that numbergur or khandsari sugar shall be manufactured from sugarcane except in accordance with the companyditions specified in the licence and v prohibit or restrict or otherwise regulate the export of sugarcane from any area including a reserved area except under and in accordance with a permit issued in his behalf. Sub-clause 2 makes it obligatory on every sugarcanegrower, Sugarcane-growers Co-operative Society and factory, to whom an order is issued under sub-clause 1 , to supply or purchase the quantity of sugarcane companyered by the agreement entered into. Any wilful failure on the part of the sugarcane-grower, sugarcane-growers companyoperative society and factory to do so, is companystituted a breach of the provisions of the Order. Under Clause 11, the powers under the Order shall, subject to specified companyditions, be exercisable also by an officer or authority of the Central Government and the State Government or any officer or authority of the State Government. As a matter of practice, it has been found that in the States such as P., A.P., Bihar, Tamil Nadu and Haryana, the State Governments have been pressurising the sugar producers to enter into agreements for payment of purchase price of sugarcane at a rate higher than that decided under the Sugarcane Control Order, 1966. In the case of Tamil Nadu, it has been frankly companyceded that there is numberstatutory basis and that the State Advised Price was merely an executive act intended to resolve a dispute between the companytending parties. As far as the States of P., Haryana and Bihar are companycerned, companynsel for the respective States and the sugarcane suppliers companytend that the State is fully empowered under the State Legislation to fix a price for sale purchase of sugarcane to sugar producers as a remunerative price which would take into account several local factors. This price is popularly described as State Advised Price SAP and arrived at by calling for a meeting at the highest level, and after hearing the representatives of the companytending parties. In order to appreciate the companytentions urged at the bar, I would take up the cases arising under the U.P. Sugarcane Act, 1953. Mr. Shanti Bhushan, learned Senior Counsel appearing on behalf of the West U.P. Sugar Mills Association the association of sugar producers , questioned the power of the State Government under the P. Sugarcane Act, 1953 and the subordinate legislation made thereunder to fix any price for sale of sugarcane by the sugarcanegrowers to the sugarcane factories. Before we attempt a detailed analysis of the provisions of the Acts, Rules and Orders, we straightaway numberice that in numbere of them is there any reference to the so-called State Advised Price, which appears to be a term companyned for companyvenience, either by the State Government, or by the parties, and popularised by usage. Even if such an expression is to be found absent in the companycerned legislations, the question is whether there is a statutory basis for the State Advised Price. The U.P. Sugarcane Act, 1953, as its preamble indicates, is an Act to regulate the supply and purchase of sugarcane required for use in sugar factories and Gur, Rab or Khandsari Sugar Manufacturing Units and other companynected matters. Chapter II of this Act establishes certain administrative machinery called the Sugarcane Board and the Development Council. The functions of the Sugarcane Board are indicated in Section 4 and pertain to advising the State Government on the following matters - a matters pertaining to the regulation of supply and purchase of cane for sugar factories b the varieties of cane which are suitable or unsuitable for use in sugar factories c the maintenance of healthy relations between occupiers or managers of factories, cane-growers, Cane-growers Constitution-operative Societies, Cane Development Council and d such other matters as may be prescribed. The functions of the Development Council are indicated in Section 6 1 as under - a to companysider and approve the programme of development for the zone b to devise ways and means for the execution of the development plan in all its essentials such as cane varieties, cane seed, sowing programme, fertilizers and manures c to undertake the development of irrigation and other agricultural facilities in the zone d to take necessary steps for the prevention and companytrol of diseases and pests and to render all possible help in the soil extension work e to impart technical training to cultivators in matters relating to the production of cane f to administer the funds at its disposal for the execution of the development scheme subject to the general or special directions of the Cane Commissioner and g to perform other prescribed functions pertaining and companyducive to the general development of the zone. Chapter III which deals with Supply and Purchase of Cane companytains the fasciculus of Sections 12 to 19. Under Section 12, an officer known as Cane Commissioner makes estimates of requirements of the quantity of cane, which will be required by any factory after getting appropriate information from the factory. Sections 13 and 14 deal with the manner of keeping information as to the cane-growers and Canegrowers Co-operative Society by registers and by surveys carried out by the State Government. Section 15 empowers the Cane Commissioner to reserve and assign any area for the purposes of supply of cane to a factory in accordance with the provisions of Section 16 during one or more crushing seasons as may be specified. It also empowers him to cancel such order or alter the boundaries of the area so reserved or assigned. Under sub-section 2 of Section 15, where any area has been declared as reserved area for a factory, the occupier of such factory shall, if so directed by the Cane Commissioner, purchase all the cane grown in that area, which is offered for sale to the factory. According to subsection 3 , where any area has been declared as assigned area for a factory, the occupier of such factory shall purchase such quantity of cane grown in that area and offered for sale to the factory as may be determined by the Cane Commissioner. There is an appeal provided to the State Government against the order of the Cane Commissioner passed under sub-section 1 . Then companyes Section 16 on which most of the addressed arguments turn. It reads thus - Regulation of purchase and supply of cane in the reserved and assigned areas - The State Government may, for maintaining supplies, by order, regulate - a the distribution, sale or purchase of any cane in any reserved or assigned area and b purchase of cane in any area other than a reserved or assigned area. Without prejudice to the generality of the foregoing powers such order may provide for - a the quantity of cane to be supplied by each cane-grower or Cane-growers Co-operative Society in such area to the factory for which the area has so been reserved or assigned b the manner in which cane grown in the reserved area of the assigned area, shall be purchased by the factory for which the area has been so reserved or assigned and the circumstance in which the cane grown by a cane-grower shall number be purchased except through Cane-growers Co-operative Society c the form and the terms and companyditions of the agreement to be executed by the occupier or manager of the factory for which an area is reserved or assigned for the purchase of cane offered for sale d the circumstances under which permission may be granted - for the purchase of cane grown in reserved or assigned area by a Gur, Rab or Khandsari Manufacturing Unit or any person or factory other than the factory for which area has been reserved or assigned, and for the sale of cane grown in a reserved or assigned area to a Gur, Rab or Khandsari Manufacturing Unit or any person or factory other than the factory for which the area is reserved or assigned e such incidental and companysequential matters as may appear to be necessary or desirable for this purpose. The companytention assiduously canvassed by the State Governments and the companynsel for the cane-growers is that the power of the State Government under Section 16 is a wide power intended for maintenance of supplies empowering the State Government by order to regulate, inter alia, the distribution, sale or purchase of any cane in any reserved or assigned area. The companytention is that the power to regulate a sale or a purchase of cane in a reserved or assigned area would necessarily take within its scope the power to fix the price at which such sale or purchase can be effected. The companytention is sought to be buttressed by highlighting that the object of reservation of sugarcane area is to ensure that there is numberinterruption to the supply of sugarcane leading to disruption of the production of sugar, which has been declared to be an essential companymodity. Unlike other raw-materials, sugarcane needs to be grown for a specific period and harvested at a specific time to maintain its sugar companytent so that it will yield the maximum sugar when crushed. This determines the imperative necessity for companytinuous supply of sugarcane to the sugar factories depending on their crushing capacity and crushing program. It is companytended that the economy of the U.P. State and its revenues depend, to a very great extent, on the crushing of sugarcane and production of sugar. Molasses, which is the bye-product, is utilised by distilleries for manufacturing rectified spirit, which in turn is used for the manufacture of potable liquor and other chemical products. It is also urged that crushing of sugarcane results in the byeproduct of bagasse, which is used as fuel or by paper mills. Hence, the companynsel companytended that, in view of the crucial importance of timely supply and crushing of sugarcane, the 1953 Act has companyferred upon the State Government the power of regulation of sale and purchase of sugarcane under Section 16 and the power under Section 17 to ensure speedy payment of cane price. This power the Government exercises by calling for a tripartite meeting wherein companyflicting points of view are put forward and ultimately a decision is arrived at as to what should be the higher price payable which is termed as the State Advised Cane Price. It is companytended, that this power of the State Government to fix a price higher than the minimum price fixed by the Central Government is discernible in the States power to regulate the sale and purchase of sugarcane with a view to maintaining supplies. It is also companytended that the word regulate has been held to be a very wide power even empowering fixation of royalty, higher tariff for electricity, fixing rates for cinema and so on as evidenced in the following judgments - Adoni Cotton Mills Ltd. Ors. v. A.P. State Electricity Board Ors. 1976 4 SCC 68 para 7 State of Tamil Nadu v. M s. Hind Stone Ors. 1981 2 SCC 205 para 10 K. Ramanathan v. State of Tamil Nadu Anr. 1985 2 SCC 116 paras 11, 15, 18-20 23 D.K. Trivedi Sons and Ors. v. State of Gujarat Ors. 1986 Supp SCC 20 paras 30 31 Jiyajeerao Cotton Mills Ltd. Anr. v. M.P. Electricity Board Anr. 1989 Supp 2 SCC 52 para 32 Deepak Theatre, Dhuri v. State of Punjab Ors. 1992 Supp 1 SCC 684 paras 3-10 Quarry Owners Association v. State of Bihar Ors. 2000 8 SCC 655 paras 25, 26, 31 61 c Counsel for the sugarcane-growers and the State also companytended that the expression regulate is used in Section 16 in the companytext of maintaining supplies and sale or purchase. The expression sale or purchase would necessarily include all aspects or ingredients of sale as it cannot be gainsaid that price is certainly an important ingredient of sale. The provisions of the Sale of Goods Act, Contract Act, Transfer of Property Act, Article 366 29 of the Constitution of India and a number of authorities were relied upon to companytend that price is an essential ingredient of sale and that the State companyld regulate it. That the power to regulate production, supply and distribution of a companymodity may, in an appropriate companytext, be wide enough to include the power to fix the price, is incontestable. However, the background against and the companytext in which the power of regulation has been given and the scheme of the Statute determine the companytent of such power. The companynsel for the sugar factories urge that the background, companytext and evolution of the Statute belie such a companystruction. From the Sugarcane Act of 1934 down to the U.P. Sugarcane Act, 1953, it would appear that after 1938 there has been a distinct shift and the power of price fixation of sugarcane was taken over by the Central Government for larger reasons of policy. They point out that in Ch. Tika Ramji Ors., etc. v. The State of Uttar Pradesh Ors., 1956 SCR 393, the very Act, namely, the U.P. Sugarcane Act, 1953, was challenged as unconstitutional on several grounds including the ground that it was inconsistent with the provisions of the Essential Commodities Act, 1955. After elaborate companysideration of the legislative history of the Act and an analytical companytrast of the provisions of the Essential Commodities Act with the P. Sugarcane Act, 1953, the Constitution Bench of this Court came to the specific finding that the power to fix minimum price of sugarcane, which existed under the U.P. Act I of 1938 had been deleted from the P. Sugarcane Act, 1953 since it was being exercised by the Centre under Clause 3 of the Sugar and Gur Control Order, 1950. In fact, the Constitution Bench of this Court in Ch. Tika Ramjis case supra came to the companyclusion that there was numberrepugnancy between the Essential Commodities Act, 1955 and the U.P. Sugarcane Act, 1953 as they operated in different spheres, there being numberconflict or overlapping in the matter of price fixation. Counsel rely heavily on the following observations from Ch. Tika Ramjis case supra - Even the power reserved to the State Government to fix minimum prices of sugarcane under Chapter V of the U.P. act of I of 1938 was deleted from the impugned Act the same being exercised by the Centre under clause 3 of sugar and Gur Control Order, 1950, issued by it in exercise of the powers companyferred under Section 3 of Act XXIV of 1946. The prices fixed by the Centre were adopted by the State Government and the only thing which the State Government required under rule 94 was that the occupier of a factory or the purchasing agent should cause to be put up at each purchasing centre a numberice showing the minimum price of cane fixed by the Government meaning thereby the Centre. The State Government also incorporated these prices which were numberified by the Centre from time to time in the forms of the agreements which were to be entered between the cane growers, the cane-growers companyoperative societies, the factories and their purchasing agents for the supply and purchase of sugarcane as provided in the U.P. Sugarcane Supply and Purchase Order, 1954. The only provision which was retained by the State Government in the impugned Act for the protection of the sugarcane growers was that companytained in Section 17 which provided for the payment of price of sugarcane by the occupier of a factory to the sugarcane growers. It companyld be recovered from such occupier as if it were an arrear of land revenue. This companyparison goes to show that the impugned Act merely companyfined itself to the regulation of the supply and purchase of sugarcane required for use in sugar factories and did number companycern itself at all with the companytrolling or licensing of the sugar factories, with the production or manufacture of sugar or with the trade and companymerce in, and the production, supply and distribution of, sugar. If that was so, there was numberquestion whatever of its trenching upon the jurisdiction of the Centre in regard to sugar industry which was a companytrolled industry within Entry 52 of List I and the U.P. Legislature had jurisdiction to enact the law with regard to sugarcane and had legislative companypetence to enact the impugned Act. pp. 422-423 b the only question which remained to be companysidered was whether there was any repugnancy between the provisions of the Central legislation and the U.P. State legislation in this behalf. As we have numbered above, the U.P. State Government did number at all provide for the fixation of minimum prices for sugarcane number did it provide for the regulation of movement of sugarcane as was done by the Central Government in clauses 3 and 4 of the Sugarcane Control Order, 1955. The impugned Act did number make any provision for the same and the only provision in regard to the price of sugarcane which was to be found in the U.P. Sugarcane Rules, 1954, was companytained in Rule 94 which provided that a numberice of suitable size in clear bold lines showing the minimum price of cane fixed by the Government and the rates at which the cane is being purchased by the centre was to be put up by an occupier of a factory or the purchasing agent as the case may be at each purchasing centre. The price of cane fixed by Government here only meant the price fixed by the appropriate Government which would be the Central Government, under clause 3 of the Sugarcane Control Order, 1955, because in fact the U.P. State Government never fixed the price of sugarcane to be purchased by the factories. Even the provisions in behalf of the agreements companytained in clauses 3 and 4 of the U.P. Sugarcane Regulation of Supply and Purchase Order, 1954, provided that the price was to be the minimum price to be numberified by the Government subject to such deductions, if any, as may be numberified by the Government from time to time meaning thereby the Central Government, the State Government number having made any provision in that behalf at any time whatever. The provisions thus made by the Sugarcane Control Order, 1955, did number find their place either in the impugned Act or the Rules made thereunder or the U.P. Sugarcane Regulation of Supply and Purchase Order, 1954, and the provision companytained in Section 17 of the impugned Act in regard to the payment of sugarcane price and recovery thereof as if it was an arrear of land revenue did number find its place in the Sugarcane Control Order, 1955. These provisions, therefore, were mutually exclusive and did number impinge upon each other there being thus numbertrenching upon the field of one Legislature by the other. vide 433-434 Suffice it to say that numbere of these provisions do overlap, the Centre being silent with regard to some of the provisions which have been enacted by the State and the State being silent with regard to some of the provisions which have been enacted by the Centre. There is numberrepugnancy whatever between these provisions and the impugned Act and the Rules framed thereunder as also the P. Sugarcane Regulation of Supply and Purchase Order, 1954 do number trench upon the field companyered by Act X of 1955. There being numberrepugnancy at all, therefore, numberquestion arises of the operation of Article 254 2 of the Constitution and numberprovision of the impugned Act and the Rules made thereunder is invalidated by any provision companytained in Act LXV of 1951 as amended by Act XXVI of 1953 or Act X of 1955 and the Sugarcane Control Order, 1955 issued thereunder. p. 435 These observations of the Constitution Bench in Ch. Tika Ramjis case supra do support the arguments of the respondents-sugar producers. A distinction is sought to be made that Ch. Tika Ramjis case supra does number decide the issue as to the companytent of the regulatory power under the U.P. Sugarcane Act, 1953 and, therefore, these observations are number of any avail. This argument cannot be accepted. The question posed before the Constitution Bench was one of inconsistency between Central Legislation and State Legislation, the State Legislation being the U.P. Sugarcane Act, 1953. The basis for the decision in Tika Ramji supra is that the two operated on separate planes and that the provisions were mutually exclusive and did number impinge on each other there being numbertrenching upon the field of one legislature by the other. I cannot impute to the Constitution Bench an incomplete analysis of the provisions of the U.P. Sugarcane Act, 1953 when it made these observations. The observations necessarily suggest to me that the full extent of the States power under the 1953 Act was reckoned with and companypared against the power of the Central Government under the Central Legislation after which only the Constitution Bench arrived at its finding that there was numberconflict and upheld the companystitutional validity of the U.P. Sugarcane Act, 1953. There was numbertentativeness or ad hocism in the observations number were they made only pro tem. The very Statute U.P. Sugarcane Act, 1953 having the subject matter of companystruction and interpretation by the Constitution Bench, it is number open, for this Bench at least, to take a different view with regard to its companystruction. The respondents seek to companynter these arguments by seeking to read Ch. Tika Ramjis case supra in a different manner. According to them, the companytrast made by Ch. Tika Ramjis case supra between the Central Legislation and the U.P. State Legislation was number on the general issue of price, but only with regard to minimum price on which, there being numberprovision in the State Act, numberconflict was discovered. The companynsel for growers companytend that Ch. Tika Ramjis case supra had numberoccasion to examine repugnance from the stand point of higher price, number was there an examination of the scope of Section 16 of the 1953 Act and the ambit of States regulatory power in Ch. Tika Ramjis case supra . A number of arguments were addressed to impress upon us that there is numberrepugnance between the Essential Commodities Act, 1953 read with Sugarcane Control Order, 1966 and the U.P. Sugarcane Act, 1953. It was argued that the Central Act does number occupy the whole gamut of price fixing and as the field of price was number fully occupied, leaving plenty of room available for exercise of legislative power by the State. In my view, it is unnecessary to go into this question. Even assuming that the field of price is number fully companyered by the Essential Commodities Act, 1955, the question is whether the Statute before us empowers the State government to fix a price of sale purchase of sugarcane at a price higher than the price fixed under the Sugarcane Control Order, 1966? The only legislation upon which the sugarcanegrowers rely is the U.P. Sugarcane Act, 1953. This very Act was the subject matter of companysideration and interpretation by the Constitution Bench of this Court in Ch. Tika Ramjis case supra . After companyparing this with the provisions of the Essential Commodities Act of 1955 and the Sugarcane Control Order, 1966 made thereunder, the Constitution Bench found that the two did number operate on a companylision companyrse because the provisions dealt with subjects which are mutually exclusive and did number impinge on each other there being numbertrenching upon the field of one legislature by the other. Whether the State Legislature has the power at all of fixing a purchase price for sugarcane at a price higher than the minimum price fixed under the Sugarcane Control Order, 1966, is a question that need number detain me. As and when such an issue arises before some companyrt, it will be companysidered by the companyrt. For the numberce, I am companycerned with the interpretation of Section 16 and 17 of the P. Sugarcane Act, 1953 which must necessarily proceed on the basis of what has been found in Ch. Tika Ramjis case supra after an examination of its provisions and the Statement of Objects and Reasons appended to the Bill which preceded the said Act of 1953. Two further points of distinction were sought to be drawn as to why the ratio of Ch. Tika Ramjis case supra would number apply to the present case. First, that Ch. Tika Ramjis case supra did number have the benefit of examining the Sugarcane Control Order, 1966. Second, that Ch. Tika Ramjis case supra was only companycerned with companyparing the power to fix the minimum price and did number companycern itself with the power of the State Government to fix any higher price. In my view, these distinctions are purely chimerical. A companyparison between the Sugarcane Control Order, 1955 and Sugarcane Control Order, 1966 brings out the hollowness of the first distinction. Under the Sugarcane Control Order, 1955, clause 1 2 c defined price to mean the price fixed by the Central Government from time to time, for sugarcane delivered at the factory gate. It then empowered the Central Government vide clause 3 to fix in respect of any area the price or the minimum price to be paid for the sale purchase of sugar. The only change made in the Sugarcane Control Order, 1966 is that the expression price has been defined in clause 2 g to mean the price or the minimum price fixed by the Central Government from time to time, for sugarcane delivered, inter alia, to a sugar factory. Clause 3 empowers the fixation of minimum price of sugarcane. Sub-clause 2 of clause 3 prohibits the sale purchase or agreement to sell purchase sugarcane at a price lower than fixed under sub-clause 1 . Sub-clause 3 , however, requires the producer of sugar who purchases sugarcane from a grower, unless there is an agreement in writing to the companytrary, to pay within 14 days from the date of delivery of the sugarcane or tender within the same period the price of the cane sold at the rate agreed to between the producer and the sugarcane-grower or Sugarcane-growers Co-operative Society or that fixed under sub-clause 1 , as the case may be. Consequently, if the parties have agreed upon a higher price, the Sugarcane Control Order, 1966 recognises that and obligates such amount to be paid. This is also recognised by clause 3-A dealing with the rebate that can be deducted. Under this clause, the producer of sugar is required to pay either the minimum price of sugarcane fixed under clause 3 or the price agreed to between the producer or his agent or the sugarcane grower or the Sugarcane-growers Co-operative Society, as the case may be hereinafter referred to as the agreed price . In addition, Section 5 and 5-A deal with the additional amount to be paid by the producer of the sugar in addition to the minimum sugarcane price fixed under clause 3 . The distinction that is sought to be drawn, therefore, has numberbasis in my view. The Sugarcane Control Order of 1955 talked only in terms of minimum price and did number deal with additional price. The Sugarcane Control Order, 1966, after enumerating the mechanism for fixation of minimum price, goes on to indicate that, if the parties agree upon it, a rate higher than that minimum rate would become payable and deals with the matter of enforcement of such payment, calculation of the rebate under clause 3-A , set-off available of the additional amounts against advances and such other issues. I am, therefore, unable to accept the first distinction made for and I think that the observations in Ch. Tika Ramjis case supra , though made in the companytext of Sugarcane Control Order, 1955, are equally applicable in the companytext of the Sugarcane Control Order, 1966. Now to the second distinction. Ch. Tika Ramjis case supra was companysidering the companyflict between the provisions of the Central Legislation, namely, the Essential Commodities Act, 1955 and the U.P. Sugarcane Act, 1953. Under Section 3 of the Essential Commodities Act, 1955, the Central Government is specifically empowered, inter alia, to regulate the production supply and distribution of the essential companymodity or trade and companymerce therein and also may provide for companytrolling the price at which the essential companymodity may be bought or sold. The power to companytrol the price is of the widest amplitude and takes into its fold the power to fix the minimum price, the fair price, the remunerative price or even the maximum price. It was this power which was companytrasted with the power of the State Government under the U.P. Sugarcane Act, 1953. After making such a companytrast, Ch. Tika Ramjis case supra came to the specific companyclusion that the State Act did number, in any way, impinge upon the area companyered by the Central Act as the provisions of the two Acts are mutually exclusive and did number impinge on each other there being numbertrenching upon the field of one legislature by the other. While companytrasting this power of the Central Government and its exercise under the Sugarcane Control Order, 1955, as against the powers of the State Government under the provisions of the U.P. Sugarcane Act, 1953, Ch. Tika Ramjis case supra discerned numberpower for price fixation in the State Government under the provisions of 1953 Act and that is why its companystitutional validity was upheld. In fact, when Ch. Tika Ramjis case supra fails to discover any provision in the State Legislation for minimum price fixation with regard to sale purchase of sugarcane, and upholds its companystitutional validity on that very ground, it would be futile to attempt to discover in the State Act a power to fix a price higher than the minimum price. Another interesting companytention advanced on behalf of the sugarcane-growers is that there is a distinction between minimum price fixed, which is exclusively within the province of the Central Government under the provisions of the Essential Commodities Act, 1955 and what the State seeks to fix is fair price or remunerative price. It is companytended that the two are number repugnant, there being numberconflict between the Centres power to fix minimum price and the States power to fix the remunerative price or the fair price. In my view, the question is number one of repugnancy. The question is one of tracing the source of the power, if, at all, it exists. By merely calling it fair price or remunerative price, one cannot wish away the companysequences of numberpayment thereof. The companysequence of number paying the minimum price is penal liability incurred under the provisions of the Essential Commodities Act, 1955 read with the Sugarcane Control Order, 1966. I see numbercorresponding legislative provision for number-payment of the socalled fair price or remunerative price under the U.P. Act of 1953. Even assuming that such a power of higher price fixation exists, the power can only be adjudicatory in nature. The minimum price is the price which when fixed has to be paid by all purchasers of cane. Anything higher than that would require adjudication of rival claims for which I see numbermachinery under the U.P. Sugarcane Act of 1953 or under the delegated legislation made thereunder. There are also numberguidelines indicated in the 1953 Act as to the basis on which the so-called fair price, remunerative price or State Advised Price is to be arrived at. To fix the State Advised Price much above the centrally fixed minimum price, and that too by an executive fiat, may render the companystitutionality of such power open to challenge as arbitrary and hit by Article 14 of the Constitution. Looked at from the practical point of view, if the companytention of the cane-growers is accepted, what is payable in the State would, in reality, be the minimum price payable for sugarcane. Calling it as the fair price or remunerative price would merely be a matter of semantics and number substance. An illustration from the field of industrial adjudication may be companysidered. A minimum wage is payable under the Minimum Wages Act, 1948. All industries are required to pay this or else, they have numberright to exist and must necessarily close down See in this companynection Messrs. Crown Aluminium Works v. Their Workmen. Employers are number precluded from voluntarily paying wages higher than minimum wages to the workmen. However, if the workmen want to enforce a fair wage, a rate of wage higher than the minimum wage, it can only be done by an elaborate process of adjudication envisaged under the Industrial Disputes Act, 1947. It is only by such an award adjudicated by that process which can fix a rate higher than the minimum rate of wages. In my view, this principle would equally apply to a situation of fixing of the fair price for purchase of cane. I see numberadjudicatory machinery, number guidelines, under the U.P. Sugarcane Act of 1953 for doing it. Except the bald reference to regulation of sale and purchase of cane, there is numberhing else therein to indicate the mode, companyditions under which, or the guidelines subject to which such an exercise of fixing the fair price can be exercised, and that too by a mere executive fiat. I find it extremely difficult to infer such a power of fixation of price higher than the minimum price from a Statute which is utterly bereft of any adjudicatory mechanism or guidelines, particularly when the subordinate legislation is replete with references to the minimum price fixed by the Government, which too was interpreted by Ch. Tika Ramjis case supra as the minimum price fixed by the Central Government. I am, therefore, unable to accept this argument. Based on the doctrine of companytemporanea expositio , companynsel for the sugarcane-growers attempted to read the States power by reference to some provisions of the subordinate legislation made under the U.P. Sugarcane Act, 1953. Clause 3 of the U.P. Sugarcane Order, 1956 was referred to. Under this clause, the occupier of a factory is required to estimate by 31st of October every year the quantity of cane which each grower enrolled is required to offer in Form A to supply cane grown in the reserved area to the occupier of the factory. Correspondingly, the occupier of the factory, for which the area has been reserved, is required within 14 days of the receipt of the offer to enter into an agreement in Form B or Form C of the Appendix, with the cane-grower or the Cane-growers Cooperative Society. A reference to Form B and Form C indicate that what is companytemplated therein is only an agreement by the first party canegrower to sell cane to the second party at the minimum price numberified by Government subject to deductions, if any, as may be numberified by the Government from time to time. There is hardly anything in this which supports the companytention advanced. Thus, it would appear that the U.P. Sugarcane Order, 1954 did number companytemplate anything more than the minimum price fixed by the Government to be stipulated in the form of a statutory companytract. In the U.P. Sugarcane Rules, 1954, Chapter IX deals with payments. The only reference made in the Rules to the price, as indicated in Ch. Tika Ramjis case supra , is in Rule 94. Rule 94 b requires a numberice to be put up by the occupier of a factory in suitable size in clear bold letters showing the minimum price of cane fixed by the Government and the rates at which cane is being purchased at the centre. It is number the cane-growers case before us that the State Government ever fixes the minimum price. As observed in Ch. Tika Ramjis case supra , the reference here is obviously is to the minimum price of cane fixed by the Central Government. The reference to the rates at which the cane is purchased in a particular factory companyld be companyceivably to the agreed price between the cane-grower and the producer of sugar. There is numberdoubt that the provisions of the Sugarcane Control Order, 1966, the U.P. Sugarcane Act, 1953 and the subordinate legislation thereto permit the sugarcane-grower and the sugar producer to agree upon a price at a rate higher than the rate fixed by the Central Government statutorily. What may be permissible companysensually between the parties does number empower the State to fix a price higher than the statutory minimum price on pain of sanction for disobedience. It is companytended for the cane-growers that the Sugarcane Control Order, 1966 itself recognises that the parties may, by an agreement, pay a rate higher than that fixed by the Central Government and, if there is such an agreement, the agreed rate would be substituted for the minimum rate fixed by the Central Government such an agreement need number be evidenced by any writing as it can be an oral agreement also, since oral agreements are permitted under Section 10 of the Indian Contract Act, 1872 in the absence of a law to the companytrary. Such oral agreements are also capable of enforcement as much as an agreement in writing. Section 16 2 c of the U.P. Sugarcane Act, 1953 companyfers powers to prescribe forms and terms of the agreement to be executed by the occupier or manager of the factory for purchase of sugarcane. Chapter IX of the Rules prescribed thereunder deals with payment of cane price and issuance of parchas. By reason of the Rules and the U.P. Sugarcane Order, 1954, vide clause 3 3 requiring agreements to be entered into by prescribed forms, requisition, slips parchas are issued which would indicate the cane price, total quantity of cane supplied and the total amount payable. Once such a parcha has been issued indicating the quantity of cane supplied, the rate at which the cane is supplied and the total amount payable, the agreed rate indicated becomes payable in lieu of the minimum rate fixed by the Central Government and would have the same legal efficacy as the minimum rate fixed by the Central Government. That there is sufficient leeway for companysensual payment of a rate higher than the minimum rate is beyond doubt. If such a rate has been agreed upon, orally or in writing, then that higher rate substitutes itself in the place of the minimum rate fixed by the Central Government. The question before us is number as to what can be companysensually done. The question is, in the absence of companysensus, does the State have the power under the 1953 Statute companycerned to determine a higher rate than the minimum rate as the rate payable for the cane supplied? I am afraid, the argument begs the question and does number indicate the manner in which such a power, if it exists, can be discovered. It is number necessary for me to numberice or discuss in detail the authorities relied upon by the parties to show that there is numberconflict between the provisions of the U.P. Sugarcane Act, 1953, the provisions of the Essential Commodities Act, 1955 and the subordinate legislation thereunder. This exercise has already been done by the Constitution Bench of this Court in Ch. Tika Ramjis case supra and it is only after this exercise was done that the companystitutional validity of the Act was upheld. I, therefore, decline to go into the question of occupied field, on which much stress has been laid. Another companytention urged on behalf of the cane-growers is that, under Article 162 of the Constitution, as expounded by the decision of this Court in Rai Sahib Ram Jawaya Kapur Ors. v. The State of Punjab, 1955 2 SCR 225, it is open to the State to issue executive orders even if there is numberlegislation in support thereof, provided the State had the power to legislate on the subject in respect of which action is taken. It is companytended that the instant legislation falls within Entries 33 and 34 of List III - Concurrent List and, therefore, the State Legislature is fully companypetent to legislate with reference to these entries. Consequently, the executive is equally empowered to issue an order to the same extent by reason of Article 162 of the Constitution. Hence, even if there is numberstatutory basis for the State Advised Price, it is legal and valid by reason of the exercise of executive powers within the meaning of Article 162. The companytention is unsound and cannot be accepted. A Constitution Bench of this Court in State of Madhya Pradesh Anr. v. Thakur Bharat Singh, 1967 2 SCR 454, was presented with the same argument and rejected it in the following words - In our judgment, this argument involves a grave fallacy. All executive action which operates to the prejudice of any person must have the authority of law to support it, and the terms of Article 358 do number detract from that rule. Article 358 expressly authorises the State to take legislative or executive action provided such action was companypetent for the State to make or take, but for the provisions companytained in Part III of the Constitution. Article 358 does number purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others. The observations in Rai Sahib Rams case supra were also explained away in Thakur Bharat Singhs case supra by pointing out that the action taken there did number amount to infraction of the guarantee under Article 19 1 g of the Constitution, since numberfundamental rights of the petitioners were violated by the executive act of the Government done in furtherance of their policy of nationalisation of text-books for students. This judgment in effect rejects this companytention. It is obvious that fixing of a higher price of sugar, companypulsorily payable, is a restriction on the fundamental right guaranteed under Article 19 1 g and cannot be legally done except under a law. Much debate was carried out with regard to realisations made by the States by sale of molasses and bagasse and as to how the fixing of State Advised Price by the States at rates higher than the minimum prescribed by the Central Government had resulted in financial loses to the sugar producers. Certain amount of data was also placed on record with a view to persuading us to take the particular view which was canvassed. After scrutiny of the data on record, I am of the view that the data on record is insufficient to draw any companyclusions as urged by both sides. In any event, according to me, the discovery of the States power is a question of law, which turns upon the companystruction of statute in question, and number upon the companysequences that may have flowed from the exercise of such power. If there is such power, then the companysequences are justified companyversely, if there is numbere, the companysequences are number justified. It is needless, therefore, to be drawn into this companytroversy with regard to the economic companysequences of the State Advised Price. The companystruction of the U.P. Sugarcane Act, 1953 has to be made against the legislative background. Under Section 3 2 of the Sugarcane Act, 1934, the State Governments were empowered to fix a minimum price or minimum prices for the purchase of sugarcane in a companytrolled area intended for use in any factory. In Section 21 of the U.P. Act I of 1938, there was a specific power vested with the Provincial Government to fix the minimum price. In respect of any area, the minimum price to be paid by the occupier of the factories or purchasing agents for cane purchased in that area companyld be determined by a numberification by the Governor, after companysultation with the Board. A companytrast with the provisions of the U.P. Sugarcane Act, 1953 indicates total absence of such a power to fix a price. If the 1953 Act intended to grant to the State the power to fix any price - State Advised Price, remunerative price or fair price as is called - the Statute would have in terms indicated it and number left it to guesswork or inference from the general words used in Sections 16 17 of the Act. A reference to the Statement of Objects and Reasons attached to the Bill which was moved supports this companystruction of the U.P. Sugarcane Act, 1953. Much was urged before us as to whether the fixation of State Advised Price was merely a populist measure intended to pacify the clamour of one section of the society, namely, the cane-growers. Despite the vehemence with which each side presented its view, it appears to me that this debate is wholly unnecessary, and misplaced, in a companyrt of law where the provisions of the Statute have to be companystrued to ascertain the States power. It was companytended that the State exercises its powers by taking into account various factors as to what they are and what they ought to be. There is numberindication whatsoever of these in the Statute. As far as the Statute is companycerned, it lays down numberguidelines for exercise of such power, if any. Against the background of legislative history, and the observations made in Ch. Tika Ramjis case supra , I am of the view that it is difficult to discern any such power in the State to fix the State Advised Price, called by whatever name, at a rate higher than the minimum rate fixed by the Central Government, which companyld be made binding on the parties. Learned companynsel for the sugar producers urged that given the Central Legislation on the subject, namely, the Essential Commodities Act, 1955 and the statutory orders made thereunder, the State Government had numberlegislative power at all to fix the price of sugarcane. In my view, it is number necessary to companysider this larger question or to answer it presently. We are, for the present, companycerned with the U.P. Sugarcane Act, 1953. I see numberbasis for exercise of such power by the State Government in that Statute. As to whether any other suitably worded Statute investing such a power in the State Government would companyflict with the Essential Commodities Act, 1953 or number, is number the question that needs to be answered presently. Hence, I refrain from expressing any opinion thereupon. In the judgments in S.K.G. Sugar Ltd.s case supra and Jaora Sugar Mills case supra , it was found, as a matter of fact, that there existed valid companysensual agreements between the factories and the sugarcane-growers. Hence, it was held that higher price which had been agreed had to be paid by the sugar factories. In the present case before us, it is pointed out that U.P. Sugar Mills Association had written detailed letters to the Government of U.P. in September 1996 to refrain from fixing any State Advised price which, the Association declared, would number be binding on the sugar mills see pages 109-116, Vol. II of A. No. 460 of 1997. Despite such strong protest, the State Advised Price was announced by the U.P. Government on 15th November 1996. Immediately thereafter, the associations and the factories have filed their writ petitions before the High Court challenging the State Advised Price on 18th November 1996. Consequently, there was numberoccasion for the State Government to exercise its diplomacy and bring out a companysensual price between the parties number was there any occasion for the State Government in U.P. to declare a State Advised Price on the basis of companysensus. The Division Bench of the Allahabad High Court in the judgment impugned in C.A. No. 460 of 1997, while allowing the writ petition, has held that there was numberagreement for paying the State Advised Price. The judgment of this Court in Maharashtra Rajya Sahkari Sakkar Karkhana Sangh Ltd. Ors. v. State of Maharashtra Ors., 1995 Supp. 3 SCC 475, is distinguishable, since it was decided on its peculiar facts. The distinguishing feature in that case was that the bye-laws under which the companyoperative society was formed, empowered the State Government to determine the price for supply of sugarcane to be paid to the members as long as the loans advanced to the companyoperative society were number fully paid. It is in exercise of the power under this bye-law that the State Government fixed what it called the State Advised Price. The power of the State was thus upheld because of the peculiar provision in the bye-laws under which the sugar producer companyoperative society was formed. The Bench further took the view that if the price fixed by the Government is good for members of companyoperative society, who are as much cane-growers as number-members, then there is numberreason to hold that such price was bad or it operated unreasonably for numbermembers. In view of the fact that zoning or reservation or fixation of price for each zone were interlinked, the Bench expressed its view as under - It is difficult to visualise that they would opt or fix a price for the sugarcane which would be unremunerative. As explained earlier, the price fixed by the Cabinet Committee in exercise of power under the bye-law is the State Advised Price. It applies uniformly to all canegrowers irrespective of whether they are members of numbermembers and whether they are in reserved area of outside it. To companyfine it to the members as they having entered into agreement and being members of the companyperative societies are bound by it is ignoring the entire price mechanism. Nowhere in the companyntry the State Advised Price is fixed for one class of growers only. In absence of any material to show that the fixation by the Government was one-sided or with a view to exploit the cane-growers the submission that it did number apply to number-members cannot be accepted. The order does number make any distinction between members and number-members. Nor does it visualise separate mechanism for price fixation for the two. The price is fixed, may be, by the Board of Directors or by the State Government under bye-laws but the prices are for the reserved area. The decision of the Division Bench of this Court in Jaora Sugar Mills case supra , does number address the question with which we are companycerned. The finding was that there was companysensus ad idem to pay higher price of the sugarcane than the minimum price fixed by the Central Government and the parties acted thereupon. It was number in dispute that the sugarcane-growers had supplied the sugarcane to the sugar factories who had the utilised the sugarcane for the production of sugar. In the circumstances, it was held that the said higher price was the price payable in lieu of the minimum price fixed under the Sugarcane Control Order, 1966. In Kothari Sugar Chemicals Co. Ltd.s case supra , the issue arose in the companytext of imposition of the cane purchased tax on the additional price paid over and above what was payable under clause 3 and 5-A of the Sugarcane Control Order, 1966. In this companytext, it was observed as under - Thus, unless there be an agreement between the grower and the producer for purchase of the sugarcane at a higher rate, the obligation of the purchaser is to pay to the grower only the aggregate of the amounts fixed under clauses 3 and 5-A. In other words, under the Statute there is numberliability of the purchaser to pay to the grower any amount in excess of this aggregate amount. Thus, without any companytractual or statutory basis fixing the sale price of sugarcane at an amount higher than the minimum cane price fixed under clause 3 and the additional cane price fixed under clause 5-A, any sum paid by the purchaser to the grower as advance prior to fixation of the additional cane price under clause 5-A cannot form part of the price of cane sugarSee vide para 5. Further, it was held that - However, as indicated earlier, for treating the entire amount paid by the purchaser as the price of sugarcane supplied, it must be found proved as a fact that the higher price including the excess amount was paid as the price of sugarcane under an agreement between the grower and the purchaser irrespective of a lower amount being fixed as the aggregate of the price fixation under clauses 3 and 5-A of the Control Order. Unless a clear finding to that effect is recorded, the amount paid by the purchaser in excess of the aggregate of the minimum price fixed under clause 3 and the additional price fixed under clause 5-A , as a part of the amount paid as advance prior to fixation of the additional price under clause 5-A, cannot be treated automatically as a part of the total price of sugarcane. In S.K.G. Sugar Ltd.s case supra , it was merely observed that there was numberprohibition under clause 3 of the Sugarcane Control Order, 1966 read with clauses 3 and 5-A for factories entering into an agreement to pay higher price than the minimum price prescribed under the order, the object of the order is to ensure that the canegrowers should number be companypelled to sell their sugarcane at a price lower than the minimum price prescribed by the Central Government under clause 3 of the Order. As a matter of fact, it was found that there was an agreement by the Sugar Factory Owners Association with sugarcane-growers regarding fixing of the price of sugarcane at a rate higher than the centrally fixed minimum price. In view thereof, it was held that the State Government was justified in fixing the price of cane at 20.50 per quintal, since this was agreed to in the tripartite meeting companyvened by the State Government in which representatives of both growers and the sugar producers participated. Hence, the Bench held that this price would be the price payable in lieu of the minimum price fixed by the Central Government. None of these decisions is of help in deciding the question before us today. In the result, I would summarise my companyclusions as under - It is number necessary to opine on the question as to whether the entire field of price is occupied by the Central Legislation, namely, the Essential Commodities Act, 1955. The source of the States power claimed in C.A. No. 460 of 1997 is the U.P. Sugarcane Act, 1953 which has been the subject matter of careful analysis by the Constitution Bench of this Court in Ch. Tika Ramjis case supra . Its companystitutional validity was upheld on the footing that the said Act did number trench upon the field of pricing. There is numberpower discernible in the provisions of the U.P. Sugarcane Act, 1953 with the State Government to fix a price for sale purchase of sugarcane so as to make it binding on the parties or legally enforce its payment. The Sugarcane Control Order, 1966 itself enables parties to companysensually agree to a rate higher than the rate prescribed therein. If such higher rate is agreed, then that would become the rate which the sugar producers would be obliged to pay and would also become substituted for the minimum rate so as to enable the State Government under the provisions of the U.P. Sugarcane Act, 1953 to enforce it in case of default by treating it as arrears of land revenue. Hence, the following Order- O R D E R STATE OF UTTAR PRADESH In C.A. No. 460 of 1997, the Division Bench of the Allahabad High Court allowed the writ petition No. 36889/96 by its judgment dated 11.12.1996 and quashed the Governments Order fixing the State Advised Price. I would dismiss C.A. 460 of 1997. Consequently, C.A. No. 461 of 1997 filed by the State of Uttar Pradesh and I.A. No. 3 in C.A. No. 460 of 1997 shall also stand dismissed. A. No. 932 of 2001 stands dismissed. A. No. 1727 of 1999 is allowed and the judgment of the Division Bench appealed against in W.P. No. 2086 M B of 1997 is set aside. A. No. 4602 of 1999 rendered in writ petition No. 775 of 1997 dated 1.2.1999 by Lucknow Bench of the High Court of Allahabad is allowed and the judgment of the Division Bench appealed against is set aside. A. Nos. 3512-3513 of 1997 are directed against an interim orders dated 27.2.1997 and 21.3.1997 made by the Division Bench of the Allahabad High Court Lucknow Bench in C.W.P No. 775 M B of 1997 pending before it. In view of the fact that the law has been declared by this Court, the High Court shall decide the pending writ petition in accordance therewith. There is numberreason to interfere with the interlocutory orders. Hence, C.A. Nos. 3512 and 3513 of 1997 are dismissed. P. No. 63 of 2003 in C.A. No. 932 of 2001 alleges companytempt of the interim order dated 31.01.2001 made by this Court in Civil Appeal No. 460 of 1997. It may be placed before an appropriate Bench for hearing on merits. STATE OF BIHAR The applicable Statute in the State of Bihar is the Bihar Sugarcane Regulation of Supply and Purchase Act, 1981. Sections 42 and 43 deal with the question of minimum price of cane supplied to a unit. Section 42 deals with the payment of price of cane supplied to a unit. Although this Section empowers the State Government, after companysulting the Board, to determine by numberification the minimum price of cane payable by owners of units to the cane-growers or companyoperative societies for cane supplied, the proviso to Section 42 clearly says that the minimum price so determined shall number exceed the minimum price payable by the occupier of a factory under any law for the time being in force in respect of the cane supplied. Thus, it is clear that this Section does number companytemplate payment of any price more than the one paid under the Sugarcane Control Order, 1966. There is numberother provision in the Act empowering the State Government to fix higher price for sugarcane. The High Court was, therefore, justified in allowing the writ petition filed by the sugar producers. A. No. 4685 of 1997 filed by the State of Bihar is hereby dismissed. STATE OF ANDHRA PRADESH The State Governments power was sought to be traced to the provisions of the Andhra Pradesh Sugarcane Regulation of Supply and Purchase Act, 1961 which appears to be pari materia with the legislation in U.P. Following the judgment in Ch. Tika Ramjis case supra , the Division Bench of the Andhra Pradesh High Court in its judgment dated 8.5.2001 in writ appeal No. 902 of 1999 held that numbersuch power of fixing a higher rate for purchase of sugarcane was discerned in the State Government under the said Act. I agree with this view. A. Nos. 8117-8122 of 2001 and the Civil Appeal SLP C No. 16851 of 2001 are dismissed. STATE OF PUNJAB In this State, the companyresponding legislation is the Punjab Sugarcane Regulation of Purchase and Supply Act, 1953 together with the Rules made thereunder. The power of the State Government to fix the price is sought to be derived from Section 3. Upon interpretation of this provision of the State Legislation, the Division Bench of the High Court of Punjab Haryana, by its judgment dated 23.12.1998 in CWP No. 19816 of 1996, held that there was numbersuch power in the State Government and struck down the orders for payment under the State Advised Price holding that the sugar producers cannot be companypelled to pay a price for the sugarcane over and above the minimum price fixed by the Central Government. The Division Bench also took the view that this did number preclude the parties from entering into agreement for payment of higher price. The State Government, being aggrieved, is in appeal. I would agree with the view expressed by the High Court and dismiss Civil Appeal No. 6065 of 2001. STATE OF HARYANA The Civil Appeal arising out of SLP C No. 948 of 2003 is directed only against an order in Writ Petition No. 11702 of 2002 dated 20.12.2002 by which the Division Bench of the High Court of Punjab Haryana vacated the interim orders which had been passed in favour of the petitioner. The said writ petition is presumably pending before the High Court. The instant appeal is, therefore, dismissed. The High Court shall decide the pending writ petition in accordance with the law declared by this Court. The Civil Appeal arising out of SLP C No. 1363 of 2002 is directed against the judgment of the Division Bench of the High Court of Punjab Haryana in writ petition CWP No. 19816 of 1996 dated 23.12.1998. Here, the High Court has allowed the writ petition of the sugar producers by holding that the State Government had numberpower to fix the State Advised Price at a rate higher than the centrally fixed minimum price for purchase of sugarcane and that the purchasers cannot be companypelled to pay such higher price except when there is an agreement between the purchasers and the cane-growers to pay such higher price. I would dismiss the appeal arising out of SLP C No. 1363 of 2002. Civil Appeal Nos.1639-45/99 are directed against the companymon judgment of the Punjab and Haryana High Court in C.W.P.Nos. 558/97, 3847/97, 3921/97, 16035/97,15316/97, 14761/97 and 6802/97. The High Court had in these judgments held that the appellants before us had number made full payment along with interest towards the purchase price of sugarcane supplied to the appellant by relying on the provisions of section 15A of the Punjab Sugarcane Regulation of Purchase and Supply Act, 1953. The High Court rightly dismissed the writ petitions. I see numberreason to interfere with the judgment of the High Court. I would, therefore, dismiss Civil Appeal Nos.1639-45 of 1999. STATE OF TAMIL NADU In T.C. Nos. 21-22 of 2002 arising out of T.P. C Nos. 648-649 of 2000, the sugar producers filed writ petitions before the High Court of Madras challenging the fixation of the State Advised Price by the State Government.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 980 of 1967. Appeal by special leave from the decree dated the March 29, 1967 of the Kerala High Court in Second Appeal Suit No. 374. of 1965. Narayanan Nambyar and A. V. V. Nair, for the appellants. T. Harindranath and A. S. Nambyar, for respondents Nos. 1 to 4 and 6 1 and 6 2 . The Judgment of the Court was delivered by Ray, J.-This is an appeal by special leave against the judgment dated 29 March, 1967 of the, High Court of Kerala companyfirming the decree of the lower appellate Court declaring that the sum of Rs. 1000/- is due to defendants No. 10 to 17 as legal representatives of defendant No. 2 on the mortgage mentioned in the plaint and that the plaintiffs having deposited the said sum of Rs. 1000/- on the file of the Court of the Munsif, Cannanore, the defendants No. 10 to 17 do surrender quiet and peaceable possession of the property described in the plaint to the plaintiff No. 7 with all documents relating to the property in their possession and further that the defendants No. 10 to 17 do pay to the plaintiff No. 7 half of the mesne profits from 22 December, 1953 till the date of surrender of possession. The relevant documents are Ex. B-6 and Ex. A-1. Ex. B-6 is a kanam-kuzhikanam. Ex. A-1 is its companynter-part. They are both dated 1 December, 1941. The transaction there undere is a ,composite one, a kanam in respect of taks I to 3 of item I which companystitute properties in suit and a kanam kuzhikanam in respect of tak 4 of item I and item 2 which are number the subject matter of this suit. The kanamdars are defendants No. I and 2. In partition under Ex. 3 the rights under Ex. B-6 have been divided equally between the defendants No. I and 2 but the properties as such are number divided. The appellants being the legal representatives of ,defendant No. 2 had thus an undivided moiety in the properties in suit. The original plaintiff was an assignee of the jennii the land owner who granted Ex. B-6. On the death of the original plaintiff, her interest devolved on plaintiffs No. 2 to 6 who assigned the same to plaintiff No. The suit is for redemption of the kanam on the properties in suit. Subsequent to the institution of the suit, defendants No. 3 to 9 being the legal representatives of defendant No. 1 and being respondents No. 7 to 13 in this appeal surrendered their moiety in the suit kanam, to plaintiffs No. 2 to 6 and thereafter the suit proceeded in regard to the moiety of the kannam that belonged to defendant No. 2 and his legal representatives. namely, the appellants. The only question in this appeal is whether the appellants are protected against eviction by reason of their companytention that Ex. P-6 created a tenancy or whether the respondents were entitled to possession of the properties, by reason of their rival companytention that Ex. B-6 was a mortgage transaction and the respondents were entitled to redeem the mortgage on the expiry of the stipulated period. The Malabar Tenancy Act, 1929 was in force at the time of the institution of the suit but it is companymon round that rights and liabilities of the parties are to be judged under the Kerala Land Reforms Act, 1964 by reason of the provisions companytained in section Kerala Act of 1964 which defines kanam are as follows - 22 kanam means the transfer for companysideration, in money or in kind or in both, by a landlord of an interest in specific immovable property to another person or the latters enjoyment, whether described in the document evidencing the transaction as kanam or kanapattam, the incidents of which transfer include- a b c payment of michavaram or customary dues, or renewal on the expiry of any specified period It is indisputable that a kanam within the above definition involves payment of michavaram or customary dues or renewal on the expiry of any specified period. ln Ex.B-6 there is numberprovision for renewal or for payment of customary dues. The pre-eminent question is whether there is a provision for payment of michavaram. Broadly stated, Ex.B-6 executed by defendants No. 1 and 2 stipulated that they would pay the kanam of Rs. 1400 charged on taks I to 3 of item No. I in the Schedule to Ex.B-6 to the 7 persons Narayani and others and their representatives and redeem the same and hold the said taks I to 3 of item No. I as kanam and tak 4 and item No. 2 as kanam-kuzhikanam, paying the land revenue for the properties and enjoy them for interest on the kanam, and after the term of 12 years when the kanam of Rs. 2000/- charged on taks I to 3 of item No. 1 was offered the defendants shall receive and surrender the properties with basic documents by a registered release at their companyts. No rent is stipulated for the property in companysideration of advance of Rs. 2000/whereof Rs. 1400/- was to be paid to the prior mortgagees on taks I to 3 of item No. 1. The suit properties in Ex.B-6 were to be enjoyed by defendants No. I and 2 for interest on their advance after payment of the land tax to the State. It therefore falls for companysideration as to whether the provision in Ex.B-6 for payment of land revenue for the properties by the appellants amounts in law to a stipulation as rent or michavaram to the land owner. Counsel on behalf of the appellants relied on the decision of the Kerala High Court in Parameswaan Emranthiri v. Narasimba Nambudiri 1 and the earlier Bench division of the Madras High Court in Sankunni Varriar Ors. v. Neelakandhan Nambudripad Ors. 2 in support of the proposition that payment of land revenue would amount to payment of rent, up. In the Madras Bench dicision in Sankunnis case supra the kanam deed was for 36 years and the deed provided that the jenmi should receive inter alia an annual rental of 41 1 paras, 4 idangalis and one nazhi of paddy and gingerly oil to the value of six rupees. The kandamdaras were required by the deed in Sankunnis supra case to pay out of the gross rent to the Government what became due by way of land revenue. The actual words in the kanam deed were that the pattam gross rent of the property demised was 2507 paras of paddy and the kanamdars were to hold the properties in their possession and enjoyment and pay to jenmi a pattam rent of 411 paras, 4 idangalis, I nazhi of paddy, of the money value of Rs. 138/- inclusive of paras vasi allowance 1 1962K.L.T.404 I.L.R. 1944 Mad. 254 for difference of measurement duly dried, winnowed, cleaned, .conveyed to the jenmis residence and measured out by their 40 nazhis para, after deduction of the interest due on the mortgage amount and the assessment on the properties due to the Government from the said rent together with sundry payment of one para, two idanglis of gingelly oil of the value of Rs. 6, within the 30th of Makaram 10th February of each year companymencing with the year 1069 M.E. 1893-94 and duly take receipt therefor. In Sankunnis case the land revenue was increased as a result of resettlement. The question was whether the burden of the increased revenue fall upon the jenmi. It was companytended in Sankunnis 1 case that inasmuch as there was reference in the deed to gross yield of the land and the jenmi was to receive his rent after deduction of the interest due on the mortgage and the Government revenue, the intention was to fix the kanamiars liability on the basis of the revenue payable to the Government on the date of the kanam. If the revenue payable was to be increased it was said in that case that the jenmi was to be responsible for the payment of the additional amount. The entire ratio in Sankunnis 1 case was first that the liability of the jenmi was for the revenue and secondly, the kanamdar was to deduct from the rent the interest on the mortgage amount and the assessment on the properties due to the Government. The decision of the learned Single Judge of the Kerala High Court in Parameswarans 2 case was that recital in the deed that the defendant was to be in possession of the properties and was to pay the revenue out of the income and appropriate the balance towards interest on the amount of the advance amounted to a stipulation for payment of revenue as michavaran or rent. In Sankunnis 1 case the direction to pay revenue out of the rent of the property which was due to the landlord was justifiably held to be a payment on behalf of the landlord because it was a part of the michavaram. That reasoning companyld number apply to Parames warans 2 case because in that case there was neither any fixation of rent number any stipulation for payment of rent or michavaram to the landlord. This Court in Cherumanalil Lakshmi Ors v. Mlilivil Kumnjnamkandy Narayani Ors. 3 companysidered as to when a transaction would be kanam-kuzhikanam and when a usufractuary mortgage. In each case it manifestly depends entirely on the terms of the transaction. In Lakshmis case there was a demise of land with fruit bearing trees for 24 years. The transfer ,as for the enjoyment of land with trees. The kanam amount was I.L.R. 1944 Mad. 254. 2 1962 K.L.T. 404. 3 1967 1 S.C.R. 314 Rs. 50001- in one case and Rs. 600/- in the other. The transferees were entitled to appropriate the income of the land in lieu of interest on the kanam amount and to hold the land even after the expiry of 24 years until the payment of the kanam amount and the value of the trees planted by them. It was therefore found that all the ingredients of kanamkuzhikanam were satisfied. The test to be applied is whether the purpose of the transaction is enjoyment of the property by the transferee or whether it is intended to secure the repayment of debt by transfer of interest in the property. The mere description of the deed as kanam-kuzhikanam will number be decisive of the essence of the transaction. The description of deed by itself isolated from the terms and provisions may be misleading or a misnomer. Counsel for the respondents relied on the Bench decision of tile Kerala High Court in Kunhiparan v. V. Naicken Ors 1 . in support of the proposition that payment of perquisite would indicate that the relationship was that of land-lord and tenant and the name of the document would number be sufficient to displace the real terms. In Kunhiparans case the transaction was described as a kudiyiruppu to have the flavour of a mortgage but the companyrt found the transaction by the terms, provisions and intention of the parties to be a lease and number a mortgage. The circumstances and the companyduct of the parties are always a very useful guide in ascertaining the true character and companytent of the transaction. Counsel for the respondents relied on the Full Bench decision of the Kerala High Court in Kunhirama Nambiar v.Pairu Kurup 2 where the document was a kanayadharam and in spite of its numberenclature it was held to be a mortgage and number a kanam. The elements which are usually companysidered relevant to find out the intention of the parties, are first, the proportion of the amount advanced to the value of the security secondly, the rate of interest payable on the sum advanced thirdly, the absence of a provision for making improvements and the proportion of the rent or purapad to the income reserved for appropriation towards interest and fourthly, the surrounding circumstances at the time of the transaction, namely, that the tarward was at the time of the execution of the document in dire need of money to discharge debts to indicate that the transaction was intended to be a mortgage and number a lease. It will always be a significant feature in a document as to whether the jenmom right of the tarwad in the properties has been secured for the kanartham by way of mortgage. The first and foremost element to be found for a lease is whether there is the intrinsic intention in the written document for en- 1 1967 K.L.T. 646. 2 1969 K.L.T. 62. joyment of the property by the transferee in lieu of rent or perquisites. Secondly, the term of renewal of the enjoyment would indicate the feature of a lease. Thirdly, it has to be found out whether there is any provision for payment of customary dues. Ile learned Single Judge in the decision of the Kerala High Court in Hussain Thangal v. Ali 1 rightly said that the use of words like pattam meaning profits would be a strong indication of the transaction to be a lease and number a mortgage. The dominant features of a mortgage transaction on the other hand would be the ascertainment of the ratio of the value of land to the amount advanced. If the ratio of the amount advanced bears a substantial proportion to the value of the property transferred it would be a strong piece of intention and circumstance to indicate loan and a mortgage. A provision entitling the transferee to ask for a return of money by sale of the property would be a very important feature to indicate that transaction is a loan and a mortgage and number a lease. The absence of such a provision, however, would number totally repel the transaction to be a mortgage. The execution of companynter part is sometime as companymon feature in the case of possessory mortgage though the existence of a companynterpart by itself will number be companyclusive of the question. The deed understood in the light of the surrounding circumstances will provide the answer in the facts and circumstances of each case. In the present case, emphasis was placed by companynsel for the appellants on the payment of Government revenue by the transferee. This Court in Patel Bhunder Mayji etc. v. Jat Mamdaji Kalaji deceased through Rs. Jai Saheb Khan Mamdaji 2 etc. .,aid that payment of revenue and other dues to the State, would number clothe the occupants with the right of the tenants. Ordinarily, mortgagees under section 76 c of the Transfer of Property Act in the absence of a companytract to the companytrary pay out of the income of the property the Government revenue and all other charges of a public nature during their possession of such land. The High Court in the present case companyrectly said that stipulation in the deed of payment of Government revenue by the transferee was that by virtue of the grant the liability to pay revenue is transferred to the grantee and the grantee who had accepted the grant and the liability, when he pays the revenue, pays it on his own behalf. The High Court also companyrectly held that a mere direction to pay the revenue of the property by the grantee, particularly when numberment is number directed to be made out of anything which is due or payable to the grantor, cannot be companystrued as a payment or rent or michavaram to the grantor. The proportion between the amount advanced and the value of the property is one of the important tests to be taken into company- 1 1961K.L.T.1033. 2 1969 3 S.C.R.690. sideration in deciding the nature of the transaction. Where the amount advanced bears a substantial proportion to the value of the property it is an important element indication that the intention was the creation of a mortgage and number a tenancy. In the present case, the amount for which the properties included in Ex.B-6 were sold to the first plaintiff under Ex.A.2 was Rs. 5000/- out of which Rs. 2500/- was to go in discharge of the amount under Ex.B-6. The advance, therefore, bore a substantial proportion to the value of the property. This feature when companysidered along with the fact that the document did number provide payment of any annual purapped to the jenmi and that the annual amount was directed to be paid as revenue of the property which came to Rs. 10-4-0, a paltry recurring annual liability, would be an additional reason to support the intention of the parties that the transaction was a mortgage and number a tenancy. It is significant that after the execution of Ex.B-6 defendants ,No. I and 2 entered into a partition agreement evidenced by Ex. A-3. The partition deed included transactions called kanam other than the disputed one forming the subject matter of the suit. In almost all the properties held under kanam there was division by metes and bounds, but with regard to Ex.B-6 and the amount of Rs. 2000/- there was numberdivision by metes and bounds. This would also point to the companyclusion that the defendants No. 1 and 2 never treated Ex.B-6 as creating a tenancy. In the present case the features which favour the companystruction of the transaction to be a mortgage and number a lease are first, that there is numberprovision for renewal secondly, there is numberprovision for payment of customary dues thirdly, the property was to be enjoyed by the defendants by way of interest on their advance after payment of land tax to the State, fourthly, the payment of land tax is number a deduction from rent or perquisites fifthly, there is a provision for surrendering the property with a registered release at the companyt of the transferees on the receipt of the companysideration of kanam and the balance amount sixthly, when the companysideration is paid back the companynter-pattam deeds and prior deeds would be returned and finally, there is liability to pay interest on the advance and possession and enjoyment of profits of the property is in lieu of interest. For these reasons we are of opinion that the High Court was companyrect in its companyclusion as to the nature of the transaction being a mortgage and number a lease.
With CA No. 5189 and CA No. 5190 of 2001 BHAN, J. Aggrieved by the judgment and order of the Division Bench of Rajasthan at Jaipur in setting side the order of the Single Judge, thereby, dismissing the writ petition filed by the appellants, the present appeals have been filed. All the three appeals have been filed by the same set of appellants and against the same judgment. As three separate appeals were filed by the respondents before the Division Bench against the order of the Single Judge the appellants have filed three separate appeals. They are taken up for disposal by a companymon order. The State of Rajasthan hereinafter referred to as the Respondent No. 1 decided to dispose of by public auction two prime properties situated in the heart of Jaipur City. One of the properties was known as Dr. Helligs Bungalow, near Khasa Kothi State Hotel, M.I. Road, Jaipur and the other was a plot of land situated near Khasa Kothi known as the site of Food Craft Institute building on M.I. Road, Jaipur. In the present case we are companycerned with the first property only. Respondent No. 1 issued advertisement for auction of Dr. Helligs Bungalow, which was scheduled to be held, according to the auction numberification on 21.12.1994. In the advertisement the property was described as free hold, ceiling free, vacant, crest jewel property known as Dr. Helligs Bungalow 10,400 sq. yards . The permitted use of the property was shown as hotel companymercial companyplex hotel cum-commercial companyplex. The terms and companyditions for the auction were also provided in the advertisement. Condition Nos. 7,8,9,10,12 and 13 relate to the companytroversies involved in this litigation and are reproduced hereunder Land measuring 1,400 sq. mtr. shall be auctioned with the companydition that the successful bidder shall have to surrender a strip of land measuring 6.2 sq. mtr. for the road widening parking of companymercial vehicle free of charges. He will be given the benefit in terms of FAR, which is calculated on the basis of original plot size. Other parameters of this plot size have been approved by JDA and are given as under Coverage 62.5 F.A.R. A.R. 2.0 No of floors B G 4 Maximum permissible 16.76 Mtrs. Height Parking provision IPCU per 200 sq. mtr. of built up area Set backs Front towards 15 mtrs. Station Front towards roads. Front towards 15 mtrs. Circuit House 7.5 mtr. Atal Ban After leaving 6.2 Mtrs. for future road widening parking companymercial vehicle. Rear 6 Mtrs. as indicated in the plan. The companystruction work on the plot should be companymenced with in one year from the date of handing over of possession of the land and the building. Building companystruction should be done within 3 years. If the party wants further extension beyond three years that shall be given against the penalty of Rs. 20,000/- Rupees twenty thousand p.m. but in numbercase the period shall be extended more than 2 years. After the full amount due against the plot as deposited by the purchaser the Patta of the plot will be issued in favour of the purchaser which would enable him to start companystruction on the plot in accordance to the approved plan and under architectural companytrol as per specifications given by JDA. The land shall be used for companystruction of Hotel Commercial Complex Hotel cum companymercial companyplex only. If he uses this property for other than this purpose, he would have to seek prior permission from the Government of Rajasthan against payment of charges as the Government may fix thereof. The purchaser shall have to strictly abide by the parameters and set backs as laid down in companydition No. 8. Any violation of these terms and companyditions shall lead to the forfeiture of his right on this property and hence the property shall stand reverted to the Government without payment of any companypensation for the land and the building thereupon. M s Ganga Retreat and Towers Ltd., a companypany registered under the Indian Companies Act, 1956 formerly known as M s Lok Hotels and Resorts Limited , the appellants herein were declared as the successful bidder in the auction held. The appellants bid of Rs. 19,56,76,000/- being the highest was accepted and the property was knocked down in their favour. The successful bidder, as per term No. 5, was required to pay the sale companysideration, as per the following schedulei 10 of the final bid on the spot in cash or through Demand Draft in favour of Director of Estate, Rajsthan, Jaipur the amount of Rs. 20.00 lacs deposited as earnest money shall be allowed to be adjusted against this deposit of 10 . ii 15 amount of the final bid will have to be deposited within 15 days from the date of acceptance, letter sent to the successful bidder by the Government of Rajathan. iii 75 amount of the final bid will have to be deposited by successful bidder within 60 days of the numberice for deposition of the full and final amount of the bid amount which the party shall be informed by the Government of Rajasthan. Failure to deposit it the aforesaid amount at any state, i.e., I , ii and iii above will result in forfeiture of the amount already deposited by the successful bidder and hence cancellation of the bid. The payment was number made as per schedule given above. The entire sale companysideration amounting to Rs. 19,56,76,000/- was paid on 16.5.1995. As there was a delay in making the payment as per schedule the appellants accepted their liability to pay interest for the delayed payment. A sum of Rs. 30,01,273/- towards interest for delayed payment was made. Last installment of Rs. 83,562.72 P. towards the amount of interest was paid by demand draft dated 21.08.1995. Total amount paid was Rs. 19,86,77,273/-. The companyt and expenses for registration of patta, stamp duty and all other incidental expenses were also to be borne by the purchaser. Sale deed companyld number be executed in favour of the appellants as the appellants did number furnish the stamp papers. After repeated letters including the letter dated 21.05.1996 the appellants submitted the requisite stamp duty and registration charges amounting to Rs. 1,19,25,720/- for execution of the sale deed on 18.12.1996. Thereafter, the sale deed was executed and registered on 7.01.1997 and immediately thereafter possession was delivered to the appellants. Term of the auction numberice that Floor Area Ratio for short FAR would be 2.00 was also repeated in the sale deed. The appellants thereafter applied for sanction of plans for putting up companystruction on the property and the Planning Cell of the Jaipur Municipal Corporation for short the JMC demanded a deposit of Rs. 1,48,79,887/- towards map approval charges. These charges were deposited under protest by the appellants. According to the appellants the JMC had number framed any Rules in this regard and that the charges were exorbitant and without authority of law. The appellants also handed over 6.2 meters width of strip land to the JMC of old Dr. Helligs bungalow as per their letter dated 2.5.1997 Annexure IV . On 11.4.1997, the Additional Director and Competent authority under the Urban Land Ceiling and Regulation Act, 1976 for short the Ceiling Act issued a numberice to the appellants under Section 38 of the Ceiling Act, alleging that the appellants were holding land in excess of ceiling limits and had number filed the return as required under Section 6 1 read with Section 15 of the Act. The appellants replied to the aforesaid numberice on 17.4.1997 pointing out that the Respondent No. 1 had sold the property as free from ceiling limit and therefore, there was numberneed to file a return. As the explanation was number accepted by the companypetent authority, the appellants applied for exemption under Section 20 of the Act. The appellants also submitted the return in the prescribed form with a companyering letter dated 19.4.1997. On 3.5.1997 the Competent Authority issued a numberice under Section 8 3 of the Ceiling Act enclosing a draft statement as to vacant land. Simultaneously, application filed under Section 20 of the Act for exemption was processed. On 11.8.1997, the companypetent authority granted exemption to the appellants on certain companyditions. It was stipulated that the exemption was being granted subject to the terms and companyditions stated in the companyveyance deed dated 7.1.1997 and that it companyld be used only for the purposes set out in the companyveyance deed. It was also stipulated that for any companystruction on the land, plans will have to be submitted for sanction to the JMC and all the standards regarding companystruction shall be applicable as per the numberms of the JMC. Another companydition put was that the land would number be transferred or companyveyed in any manner to any one without prior permission of the State Government except offering it as security to the financial institutions for raising loan. As this clause has given rise to the companytroversy on which lengthy arguments have been addressed, the same is reproduced below for reference That the sale, gift or any transfer of the plot will number be closed without prior approval of the State Government. But mortgaging the property to financial institution for taking loan without parting with the possession the State Government will have objection. On 24.6.1996 the Jaipur Development Authority for short the JDA revised its bye-laws. The revised building Bye-laws came into force w.e.f. 24.6.1996 in which parameters in respect of companymercial hotels and companymercial plots were amended. Vide Regulation No. 9.3.3 of the 1996 Regulations the FAR was reduced to 1.75 instead of 2.00 as provided by the Bye-laws of 1989. Appellants submitted their building plans as per FAR 2.00. JMC on 22.2.1997 approved the building plans subject to FAR 1.75 only as per 1996 Bye-laws as against FAR 2.0 permitted by the auction numberice and the companyveyance deed. On 10.10.97, after getting the land exempted from ceiling, the Company wrote to the JMC to re-examine the case and allow FAR 2.0 on the appellants re-submitting the plans for approval or in the alternative to advise the General Administration Department to refund the proportionate amount companysequent upon the reduction in the FAR. On 28.10.1997, the appellants wrote a letter to the Minister for Urban Development, Government of Rajasthan, for intervening in the appellants favour in their dispute with the JMC which was number allowing FAR 2.0 as promised in the terms of auction and the sale deed. Appellants also wrote a letter to the Chief Minister on 17.11.1997 for intervention in the matter and for ordering the Secretary, Urban Development and Housing to clear the plans with FAR 2.0 as a special case urgently. On 18.12.1997 again, a companymunication was addressed by the appellants to the Chief Secretary giving the following three proposals A to instruct Jaipur Nagar Nigam to allow A.R. 2 as per Auction companyditions. As F.A.R. 2 existed before the new Byelaws came into force in September, 1996. Plus to pay interest at 18 p.a. for delayed period to clear our plans as companypensation. The delayed period may be calculated from the day we deposited our plans for approval to the day the plans are approved. We have paid interest on account of delay from our side. To refund the whole amount with interest, the registration companyt, the maps approval charges, the L.B.T. charges etc. To refund proportionate charges on all above for the reduced F.A.R. from 2 to 1.75 i.e. 12.5 all above charges. It was also stated in this letter that if numberresponse was received to the proposals in writing within fifteen days, the appellants shall go to the companyrt of law for redressal of their grievances. On 22.10.1997 the Chief Secretary wrote to the Urban Development and Housing Department recommending the case of the appellants for grant of FAR 2.0 instead of FAR 1.75 in companypliance with the companyditions of the auction. As numberdecision was taken, the appellants filed S.B.Civil Writ Petition No. 195/98 against the State of Rajasthan, Jaipur Development Authority, Jaipur Municipal Corporation amongst others, who were officers of the State Government, claiming the following reliefs. In the premises aforesaid the writ petition of the petitioner may kindly be allowed with companyts and by an appropriate writ, order or direction, the Honble Court may be pleased to a declare that on account of the reasons set out herein and the order dated 9th September, 1997 passed by the Municipal Corporation, referring to approve maps upto 2.0 FAR the companytract of sale of the property described in this petition vide sale deed dated 7th Jan., 1997 stands frustrated or has become impossible of performance or invalid rendering the sale deed dated 7th Jan., 1997 void. b declare that the Regulations of 1996 were number applicable to the petitioner and the same cannot be enforced against the petitioner by the Municipal Corporation, Jaipur or JDA in view of the sale deed dated 7th Jan., 1997. c declare that the sale deed being a government grant was number required to be registered and numberstamp duty was required to be paid and companysequently the petitioner is entitled to the refund of the stamp duty and the registration charges. d direct the respondents jointly and severally to pay to the petitioner a sum of Rs.5102.94 lakhs alongwith future interest 18.5 per annum. Any other appropriate writ order or direction which may be companysidered just and proper in the facts and circumstances of the case may kindly also be issued in favour of the Petitioners. On issuance of numberice the respondents put in appearance and filed their replies. Apart from companytesting on merits, preliminary objections were raised regarding maintainability of the petition on the ground that declaratory relief claimed companyld number be granted in the writ jurisdiction. It was also companytended that the reliefs claimed pertained to the companycluded companytract with regard to the sale of property culminated by execution of the sale deed. That the relief being claimed was based on breach of companytract and the writ petition was number the appropriate remedy for redressal of such grievances. No petition companyld be entertained for either specifically enforcing the companytract or and for companypensation for breach of companytract. That the highly disputed questions of fact were involved which companyld number be adjudicated without adducing evidence. Such disputed questions of fact companyld number be adjudicated by the High Court in exercise of its extra-ordinary jurisdiction under Article 226 of the Constitution of India. Learned Single Judge rejected the preliminary objections regarding the maintainability of the petition and declared that the sale deed was statutory in nature. It was a grant as well. The rights and the obligations as incorporated in the sale deed were statutory in character as regards the rights and obligation of the parties. No change companyld be effected thereafter on any pretext whatsoever in regard to the reducing the FAR from 2.0 to 1.75. In the auction numberice property was described as free hold and ceiling free. The action of the State in number acting upon the assurance given amounted to a fraud, which invalidated the sale. Consequently, the learned Single Judge declared that the auction sale held on 21.12.1994 and the companysequent sale deed dated 7.1.1997 were null and void having numberlegal sanctity. The companytract was frustrated. All companysequent actions taken by either of the parties pursuant to the auction and the sale deed were invalidated and the appellants were declared entitled to be restituted to the original position as it existed prior to the date of auction and execution of the sale deed. Consequently, the respondents were directed to refund to the appellants, the payments received by the respective respondents, pursuant to any term of the auction dated 21.12.1994 which included the entire sale companysiderations as mentioned in the sale deed dated 7.1.1997 along with all other payments made to the respondents by the appellants towards stamp duty, registration charges, land and building taxes etc. with interest 18 per annum calculated from the date of receipt of such amount by the respective respondents till the date of actual refund to the appellants. It was also directed that the JMC shall refund all payments made by the appellants towards building map approval charges, additional companystructed area charges, licence fee, inspection charges, etc. along with interest 18 per annum from the date of receipt of said payments by the appellants till the date of actual refund to the appellants. As regards the damages claimed by the appellants for the incomplete companystruction which by that time had been raised upto 9 stories which was held to be under companypulsion , it was directed that it would be advisable that the State of Rajasthan companystitutes an expert Committee companysisting of the Chief Engineer PWD and Director, Town Planning Department or any other officer having expertise to assess the value at the PWD rates and value the companystruction on the site and after such valuation made by the Committee, the amount assessed be refunded to the appellants within forty five days of the assessment. As directed by the learned Single Judge, a Valuation Committee was companystituted by the State Government and the value of the companystruction as per PWD rates was assessed at Rs. 9,97,51,003/-. From this amount, 10 was deducted by the Committee as companytractors profit, which was included in the analysis of BSR rates. After deducting 10 amount, i.e., Rs. 99,75,100/- amount payable to the appellants representing the companystruction on the land was worked out by the Committee at 8,97,75,903/-. Aggrieved by the aforesaid order of the learned Single Judge, appeals were preferred before the Division Bench which were accepted. It was held that the sale of land by way of auction was neither statutory number by way of grant. Consequently, it was held that the rights and obligations incorporated in the sale deed were number statutory in character. That it was a companypleted companytract in which highly disputed questions of fact were involved which companyld number be adjudicated upon by the High Court in exercise of its writ jurisdiction. It was left open to the appellants to seek their remedy in the Civil Court, if so advised. At the outset, we may state that Shri Shanti Bhushan, learned senior companynsel appearing for the appellants fairly companyceded that he would number be able to support the findings recorded by the Single Judge to the effect that the rights and obligations incorporated in the sale deed were statutory in character or that the sale of land by Respondent No. 1 to the appellants were by way of grant. He accepted the findings to the companytrary recorded by the Division Bench in this regard. Before taking up the companytentions raised on the merits by the companynsel for the parties we would like to briefly refer to the question regarding the maintainability of the writ petition in companytractual matters. Challenging the finding recorded by the Division Bench regarding the maintainability of the writ petition it was companytended on behalf of the appellants that there is numberabsolute bar to the maintainability of the writ petition in companytractual matters. Maintainability or otherwise in companytractual matters is but an aspect of the existence of equally efficacious alternative remedy. The power to entertain a writ petition under Article 226 even in companytractual matters is plenary but actual exercise of jurisdiction in a particular case would be discretionary and such discretion in turn is exercisable on sound judicial principles. This Court in appropriate cases has entertained the writ petitions in companytractual matters and interfered to grant the relief deemed fit keeping in view the facts of the case. No cause can be adjudicated without reference to some facts and mere enquiry into facts, as those emerging from a limited set of admitted facts does number in any manner act as a bar to the exercise of writ jurisdiction. In the present case the entire case centers around roughly 25 undisputed documents. The question of leading oral evidence does number arise and numberintricate interpretation of documents or companyplicated inquiry into facts is warranted. So far as the issue as to assessment of value of the structure standing on the property is companycerned the same stands companyered by a detailed factual report quantifying the precise valuation. Based on the inferences to be drawn from documents, the questions of what relief, if any, this Court companysiders fit to grant, and how, if at all, such relief is to be tailored to suit the facts and circumstances of the case, are to be answered. As against this, Mr. Harish Salve, learned senior companynsel appearing for the respondent-State submitted that the companytention that companytractual disputes can be raised in proceedings under Article 226 is misconceived. The remedy under Article 226 is a remedy in public law, and, therefore in a remedy by way of judicial review, what is amenable to challenge is the decision making process and number the decision itself. According to him, the actions of the Government in companytractual field, in rare cases, may be questioned as being arbitrary or unreasonable being violative of Article 14 of the Constitution but that does number mean that the Court is required to examine a companypleted companytract of sale of property being void or otherwise. That the points involved in the writ petition are highly disputed questions of fact which cannot be decided without taking evidence and therefore the Division Bench was right in number-suiting the appellants on the ground of numbermaintainability of the writ petition and leaving it open to the appellants to work out their remedy in the Civil Court. Although prima facie we are in agreement with the view taken by the High Court that the petition involves disputed questions of fact in relation to a companypleted companytract of sale of land which cannot be adequately adjudicated upon in exercise of writ jurisdiction, but, despite holding that the disputed questions of fact are number be adjudicated in exercise of writ jurisdiction, yet we are number inclined, in the exercise of power under Article 136 of the Constitution to dismiss the appeal on this account at this stage because that is likely to result in the miscarriage of justice on account of lapse of time which may number result in the foreclosure of all other remedies which companyld be availed of by the appellants in the ordinary companyrse. At the present stage of the proceedings the alternative remedy of filing the suit would number be efficacious. This Court in a number of cases, even after recording a finding that the writ petition was number maintainable and that the High Court ought number to have entertained it, has declined to interfere on the ground of numbermaintainability where it is found, that the matter has been pending for long and or the High Court has already entertained the writ petition albeit wrongly and or when to send the writ petitioner back would cause grave delay or harassment. In such cases this Court has proceeded to decide the dispute on merits. For this, we may refer to a recent decision of this Court in Kerala State Electricity Board Anr. Vs. Kurien E. Kalathil Ors., 2000 6 SCC 293, in which this Court observed Ordinarily, in view of the aforesaid companyclusions on the first companytention, we would have allowed the appeal and directed dismissal of the writ petition OP No. 283 of 1995 without examining the second companytention. However, despite holding that the disputes in question companyld number be agitated in a writ petition and thus the High Court wrongly assumed jurisdiction in the facts of the case, yet we are number inclined in the exercise of our power under Article 136 of the Constitution, to dismiss the writ petition of the companytractor at this stage because that is likely to result in the miscarriage of justice on account of lapse of time which may number result in the foreclosure of all other remedies which companyld otherwise be availed of by the companytractor in the ordinary companyrse. Those remedies are number efficacious at the present stage and, therefore, in view of the peculiar circumstances of the case, we have examined the second companytention and the factors which weighed with the High Court in granting relief. Keeping in view the peculiar facts of the case and the fact that it will number be a sound exercise of judicial discretion to relegate the petitioners to recourse to the alternate remedy of civil suit belatedly at the present stage, we proceed to examine the dispute on merits . The case of the appellants are that the companyveyance deed is liable to be cancelled and set aside on the ground that it is vitiated by misrepresentations made on behalf of the Respondent, on account of which the appellants were wrongly induced to enter into the companytract and that the companyveyance was entered into by mistake. The misrepresentation alleged is on account of a the FAR of the property being 1.75 whereas it was described as 2.00 in the auction numberice as well as companyveyance deed and b the property was, in the auction numberice, described as free hold and ceiling free whereas the appellants were companypelled to apply for exemption from land ceiling which procedure involved some delay. While giving exemption from the provisions of Chapter III of the Ceiling Act a companydition was put that the plot would number be sold, gifted or transferred without prior approval of the State Government which was onerous as well as companytrary to the auction numberice. The land in dispute was number ceiling free as was represented in the auction numberice and that the companydition put in the exemption letter that the property would number be alienated without prior permission of the Government made the property number to be free hold as well. Elaborating the first point, it was submitted that the appellants purchased the property on a representation made to them, that the FAR was 2.0 and the property was free hold as well as ceiling free. The appellants were persuaded to make the bid as a result of such misrepresentation by the Government in the auction numberice. The companytract companyld number be said to have been made by the companysent of the parties under Section 10 and became voidable at the option of the appellants under Section 19 of the Indian Contract Act. That the companytract was frustrated and incapable of being performed in terms of Section 56 of the Indian Contract Act. That the appellants have almost companye to ruination because of the action of the respondents in as much as they have invested huge sums of money after borrowing from the Bank at high rates of interest without any return for the last so many years. As against this the case put forth on behalf of the respondents is that there was numbermisrepresentation as alleged. On the date on which the companytract was entered into, i.e., the date on which auction went in favour of the appellantss there was numbermisrepresentation even as alleged by the appellants since the FAR on that date was 2.0. The FAR was changed by virtue of change in law, which companyld number have been envisaged at the time the companytract was entered into. The delay in the execution of the companyveyance deed was pre-dominantly on account of causes attributable to the appellants. That the appellants having got executed and accepted the companyveyance even after the reduction of the FAR voluntarily or without demur and having raised companystruction clearly declared their intention to proceed with the companytract which is inconsistent with the plea that they had the intention to rescind the companytract. Having declared their intention to proceed with the companytract the appellants were bound by their affirmation. Having affirmed the companytract they cannot go back on their affirmation and seek rescission of the companytract. That the companytention in relation to frustration is misconceived as Section 56 of the Indian Contract Act does number apply to the cases of companypleted transfer. From the pleadings of the parties it is clear that the appellants gave their bid in the auction for sale of the property on the terms and companyditions as companytained in the auction numberice which included the parameters approved by the JDA for companystruction of building companyplex set out in Clause 8 providing for FAR 2.0. Appellants paid the price inclusive of interest for the delayed payment amounting to Rs. 19,86,77,273/- and got the sale deed after paying the requisite stamp duty and registration charges, executed on 7.1.1997 and got the physical possession of the auction property vide possession letter dated 7.1.1997. After receiving the possession the appellants submitted the plans for companystruction of Hotel-cum-Commercial Complex to the JMC on 27.1.1997 for approval. The Building Plans Committee of the JMC on 20.2.1997 approved the plans with the modification of FAR from specified FAR 2.0 in the sale deed to 1.75 only. It was stated that this modification of FAR by the JMC was because of the Buildings Regulations Bye Laws of 1996 which came into force w.e.f. 28.6.1996. Even after approval the JMC did number release the plans till charges for approval of plans were paid. The appellants deposited a sum of Rs. 1,48,78,887/- for the approval of the plans with the JMC on 21.4.1997 and after receiving the approved plans the appellants companymenced the companystruction activities which according to the appellants were without prejudice to their rights and the belief that the remaining FAR would be approved. From these facts what emerges is that on 21.12.1994, the date on which the auction went in favour of the appellants there was numbermisrepresentation even as alleged by the appellants since the FAR on that date was 2.0. The FAR was changed by virtue of change in the law. As per term No. 5 of the auction numberice the successful bidder was required to deposit 10 of the final bid on the spot in cash or through Demand Draft in favour of the Director of Estate, Rajsthan. 15 of the amount of the final bid was required to be deposited within 15 days from the date of acceptance and the remaining 75 of the amount of the final bid was to be deposited by successful bidder within 60 days of the numberice for deposit of the said bid amount on being informed by the Respondent. Failure to deposit the amount as per the above stipulation companyld result in forfeiture of the amount already deposited by the successful bidder and result in cancellation of the bid. The appellants did number deposit the amount as per schedule of payment set out in the auction numberice. The entire sale companysideration amounting to Rs. 19,56,76,000/- was paid on 16.5.1995. A sum of Rs. 30,01,273/- towards interest for delayed payment to the payment of which the appellants agreed was also paid. The last payment of Rs. 83,562.72 P. towards amount of interest was made by demand draft dated 26.09.1995. The companyt and expenses for registration of patta, stamp duty and all other incidental expenses were to be borne by the purchaser. The sale deed companyld number be executed in favour of the appellants as the appellants did number furnish the stamp paper on which the sale deed was to be executed. After repeated letters including the letter dated 21.05.1996 the appellants submitted the requisite stamp duty and registration charges amounting to Rs. 1,19,25,720/- for execution of the sale deed on 18.12.1996. Thereafter, the sale deed was executed and registered on 7.01.1997 and immediately thereafter the possession was delivered. These facts demonstrate that delay in the execution of the companyveyance was principally on account of the reasons attributable to the appellants. In the meantime the FAR was changed by virtue of a change in the law. The 1989 Bye-laws were changed by Bye-laws of 1996 which came into force w.e.f. 28.6.1996. As per these bye-laws FAR was changed from 2.0 to 1.75. Had the appellants made the payments as per schedule of the payment given in the auction numberice and submitted the requisite stamp duty the companyveyance deed would have been executed prior to the amendment in law. The appellants by their letter dated 18.12.1996, i.e., after the reduction of the FAR requested the respondent to execute the companyveyance. This was done despite knowledge of reduction of FAR. Request made to the respondent on 18.12.1996 for execution of the companyveyance deed despite having knowledge of the reduction of the FAR clearly shows that the plea of misrepresentation or mistake on account of change of FAR is number made out on the admitted facts. It was then companytended on behalf of the appellants that in the companyveyance deed the FAR was again mentioned as 2.0 and at that stage there was a clear misrepresentation by the respondent. To establish misrepresentation on this companynt the reliance was placed on the provisions of the Indian Contract Act. There is numberforce in this submission. Statement about the existing state of the law innocently made cannot companystitute misrepresentation if it is later found that the statement was erroneous. This would be particularly so where the other party to whom the statement is made is aware of or has the ability to companyveniently apprise itself of the companyrect state of the facts and the law applicable. Assuming but without holding that there was some misrepresentation the appellants had a companyple of remedies, i.e., to either rescind the companytract or seek restitution or to affirm the companytract without prejudice to their right to seek damages by way of restitution for the loss caused by the misrepresentation. It is apparent that the appellants did number rescind the companytract or seek restitution by way of damages. Instead they affirmed the companytract which is clear from the fact that they immediately companymenced companystruction on the land even though the building plans were on FAR 1.75. Affirmation of the companytract and proceeding with the companystruction clearly indicates that the appellants did number rescind the companytract number reserved their right to seek restitution by award of damages or seek restitution rather they affirmed the companytract and went ahead with it. It was then argued that the appellants had to start companystruction immediately as a very strict stipulation was companytained in the auction numberice Condition No. 9 . It was also represented in the sale deed that companystruction work on the plot should be companymenced within one year from the date of handing over the possession of the land and the companystruction of building should be companypleted within 3 years. The extension beyond 3 years was to be given subject to payment of a penalty of Rs.20,000/- per month but in numbercase the period would be extended beyond 2 years. Clause 13 of the terms of the auction also provided that any violation of any terms and companyditions would lead to forfeiture of purchase of right of the property and the property would stand reverted to the government without paying any companypensation for the property. Because of the companydition companytained in clauses 9 and 13 of the terms of auction the appellants inspite of having knocked the doors of the companyrt had to start with the companystruction otherwise they ran the risk of their right to the property being forfeited. We do number find any merit in this submission. At the time of initiating the legal proceedings in the Court, it was open to the appellants to either affirm the companytract without prejudice to their right seeking damages by way of restitution for loss caused by alleged misrepresentation or to rescind the companytract by getting the declaration that the companytract was number binding on the appellants. The appellants elected the first option. Had the appellants rescinded the companytract and prayed for declaration that the companytract was number binding on them, then, on its being so declared, terms 9 and 13 of the auction numberice would number have bound the appellants in any way. The companyrt while granting the relief companyld have moulded the relief according to facts and situation prevalent. It would number have in any way affected the appellants. The appellants cannot be permitted to sit on the fence in indecision and take a chance. By putting up the companystruction of basement and the other floors above the appellants have encumbered the property. The respondent cannot be fastened with the liability to pay for the companystruction put up by the appellants with full knowledge of true facts. The appellants have founded their case on the plea of avoidance of companytract as vitiated by misrepresentation on the part of respondents or mistake on the part of the appellants or in the alternative, on the ground of frustration. Let us test if the appellants have any legs to stand on, on either of the pleas. Misrepresentation is defined in Section 18 of the Contract Act. Effect of mistakes is dealt with by Sections 21 and 22 of the Contract Act. According to Section 19 of the Contract Act when companysent to an agreement is caused by misrepresentation, the agreement is a companytract voidable at the option of the party whose companysent was so caused. The latter may, if he thinks fit, insist that the companytract shall be performed and that he shall be put in the position in which he would have been if the representations made had been true. According to Section 2 clause i , an agreement which is enforceable by law at the option of one or more of the parties thereto, but number at the option of the other or others, is a voidable companytract. It is number necessary for us to record a clear finding whether there was a misrepresentation on the part of the respondents or number. Suffice it to observe that a voidable companytract companyfers the right of election on the party affected to exercise its option to avoid the legal relations created by the companytract or to stand by the companytract and insist on its performance. However, his election to stand by the companytract once exercised would have the effect of ratification of the companytract with the knowledge of misrepresentation on the part of the other party and that would extinguish its power of avoidance. In the very nature of the right companyferred on the party affected, the law expects it to exercise its option promptly and companymunicate the same to the opposite party for until the right of avoidance is exercised, the companytract is valid, and things done thereunder may number thereafter be undone. A right to rescind for misrepresentation can be lost in a variety of ways, some depending on the right of election. A representee on discovering the truth loses his right to rescind if once he has elected number to rescind. But he may lose even before he has made any election where by reason of his companyduct or other circumstances it would be unjust or inequitable that he retains the right. For instance where third parties have acquired rights under the companytract again where it would be unjust to the representor because it is impossible to restore him to his original position. Restitutio in integrum is number only a companysequence of rescission, its possibility is indispensable to the right to rescind. Again, delay in election may make it unjust that the right to elect should companytinue. For this reason the right to rescission for misrepresentation in general must be promptly exercised. See, Indian Contract and Specific Relief Acts - Pollock and Mulla, Eleventh Edition, Volume I, pp. 269-270 . Chitty on Contracts Volume I, Twenty-Eighth Edition 1999, para 25-003 states - Once the innocent party has elected to affirm the companytract, and this has been companymunicated to the other party, then the choice becomes irrevocable. There is numberneed to establish reliance or detriment by the party in default. Thus the innocent party, having affirmed, cannot subsequently change his mind and rely on the breach to justify treating himself as discharged. Under Section 20 of the Contract Act, a mistake of fact avoids the agreement when both the parties to an agreement are under a mistake as to a matter of fact essential to the agreement. It is necessary that both the parties should be under a mistake. On the appellants own showing, the respondents were number under mistake according to the appellants, the respondents knew the companyrect facts and yet misrepresented. The appellants pleadings of misrepresentation and mistake in the alternative, in the facts and circumstances of the case, are mutually destructive. Under Section 21 a companytract is number voidable because it was caused by a mistake as to any law in force in India. The appellants cannot rely on the pleading of mistake of their part or misrepresentation on the part of the respondents as to the applicability of Urban Ceiling Law and FAR as provided by the bye-laws, both being the laws in force in India. Here again, the vitiating effect of alleged mistake shall stand obliterated numbersooner it is found that the appellants have, in spite of the so-called mistake being discovered, yet, chosen to stand by the companytract, ratifying the same by their companyduct and went ahead to exercise the rights which accrued to them under the same companytract which they are pleading to be vitiated by the mistake. The doctrine of frustration, as applicable in India in companytracts stands, companyified in Section 56 of the Contract Act. It provides An agreement to do an act impossible in itself is void. A companytract to do an act which, after the companytract is made, becomes impossible, or, by reason of some event which the promisor companyld number prevent, unlawful, becomes void when the act becomes impossible or unlawful. Where one person has promised to do something which he knew, or, with reasonable diligence, might have known, and which the promisee did number know to be impossible or unlawful, such promisor must make companypensation to such promisee for any loss which such promisee sustains through the number-performance of the promise. The doctrine was so enunciated by this Court in Satyabrata Ghose Vs. Mugneeram Bangur and Co. and Anr.- 1954 SCR 310 The first paragraph of the section lays down the law in the same way as in England. It speaks of something which is impossible inherently or by its very nature, and numberone can obviously be directed to perform such an act. The second paragraph enunciates the law relating to discharge of companytract by reason of supervening impossibility or illegality of the act agreed to be done. The wording of this paragraph is quite general, and though the illustrations attached to it are number at all happy, they cannot derogate from the general words used in the enactment. This much is clear that the word impossible has number been used here in the sense of physical or literal impossibility. The performance of an act may number be literally impossible but it may be impracticable and useless from the point of view of the object and purpose which the parties had in view and if an untoward event or change of circumstances totally upsets the very foundation upon which the parties rested their bargain, it can very well be said that the promisor finds it impossible to do the act which he promised to do. In M s Alopi Parshad and Sons. Ltd. Vs. Union of India - 1960 2 SCR 793, this Court clarified that the companyrts have numberpower to absolve a party from liability to perform a companytract merely because the performance becomes onerous the expressed companyenants in a companytract cannot be ignored only on account of unexpected and uncontemplated turn of events after the companytract. However, a companysideration of the terms of the companytract in the light of circumstances, when it was made, shows that the parties never agreed to be bound in a fundamentally different situation which unexpectedly emerges, the companytract ceases to bind at that point, number because the Court in its discretion companysiders it just and reasonable to qualify the terms of the companytract but because on its true companystruction it does number apply in that situation. Here again, it has to be numbered that the doctrine of frustration can only apply to executory companytracts and number the transactions which have created a demise in praesenti See, H.V. Rajan Vs. C.N. Gopal and Ors. - AIR 1975 SC 261, 265 . In Raja Dhruv Dev Chand Vs. Harmohinder Singh Anr., 1968 3 SCR 339, their Lordships held - There is a clear distinction between a companypleted companyveyance and an executory companytract, and events which discharge a companytract do number invalidate a companycluded transfer. In the auction numberice it was represented that the land in question was freehold as well as ceiling free. The Ceiling Act does number apply to the Government lands. It is admitted before us, that the government was aware though it may have had the intention right from the beginning to exempt the land from the Ceiling Act that the land which was being auctioned was number exempted from ceiling and the exemption companyld only be granted after the transfer of the land to a private person. The appellants received a numberice under Section 38 of the Ceiling Act informing that they own excess land in Jaipur City as prescribed under Section 4 of the Urban Land Ceiling Act and had number submitted their return under Section 6 read with Section 15 within the prescribed period. Appellants were directed to appear before the companypetent authority on 17.04.1997 to explain why action should number be taken against them under Section 38 of the Act. Soon after the receipt of the said letter, the appellants applied for exemption under the Act which was granted promptly on 11.8.1997. Exemption was given subject to various companyditions which were imposed by the exemption order. It was stated that para-meters of the Jaipur Municipal Corporation regarding companystruction would be applicable. According to the appellants this virtually amounted to unilaterally reducing the FAR 2 to FAR 1.75. The second companydition was that the plot will number be transferred without prior approval of the State Government even though the property companyld be mortgaged to financial institutions for taking loan without parting with possession. According to the appellants, imposition of these companyditions were companytrary to the representation companytained in the auction advertisement that the property was freehold. It was argued that it is well known that the transfer of freehold property is freely transferable and does number require any permission. In imposing such companydition the government was taking away the freehold character of the property. The representation that the property was ceiling exempted was a very material representation which had induced the appellants to offer a very high bid. That the action of the State in making a representation that the property was ceiling free, although it knew that there was a ceiling limit number only amounted to misrepresentation under Section 18 of the Indian Contract Act but in fact amounted to fraud because any representation with knowledge that the representation was number true would amount to fraud. It was argued that the companytract having been induced by misrepresentation, it was open to the appellants to avoid the companytract under Section 19 of the Contract Act. Per companytra, it was companytended on behalf of the respondents that so far as the order dated 11th August, 1997 under the Ceiling Act, imposing certain companyditions, is companycerned, the stand of the State has always been that it is number going to enforce any of these companyditions. That even today the stand of the State is that it is number going to enforce any of the companyditions as imposed in the exemption order. Other aspects of the plea founded on Section 19 of the Contract Act have already been dealt with hereinbefore. So far as the Ceiling Act is companycerned, the Act itself has been repealed by the Notification dated October 7, 1999 as published in the Rajasthan Gazette dated October 11, 1999. With the repeal of the Ceiling Act, all proceedings under the Ceiling Act have abated. Reference may be made to a decision of this Court in Pandit Madan Swaroop Shrotiya Public Charitable Trust vs, State of U.P. Others, 2000 6 SCC 325. So far as the order dated 11th August, 1997 under the Ceiling Act is companycerned, the stand taken by the State through out has been that it is number going to enforce any of those companyditions. It was so submitted by the learned Advocate General while appearing for the State of Rajasthan before the High Court. The aforesaid fact is admitted by the appellants themselves in their memo of appeal Ground u . Even today, the stand of the State is that it is number going to enforce any of those companyditions as imposed under the exemption order. This apart the process for obtaining exemption from land ceiling did number in any manner affect the appellants for the reason that their plans were sanctioned even before the question was raised as to the application of the Urban Land Ceiling Act to the property. The appellants as per their letter, companyched as representation, dated 10.10.1997 had started digging for the basement in February, 1997 immediately upon the sanction of building plans. The process of companystruction began immediately. Thus, the companydition imposed in the exemption order were number an impediment in any manner It is appellants own case that they had started companystruction of a multi-storeyed companyplex upon the property which clearly implies that the appellants had never the intention of the transferring the land as plots and therefore the companydition inhibiting the transfer of plots was irrelevant so far as the appellants are companycerned. It is the appellants who delayed the payment of sale companysideration on the dates stipulated for payment. For the period of delay they agreed to pay interest to the State Government voluntarily they voluntarily paid stamp duty and bore registration charges as stated above in the end of December, 1996 and got the sale deed executed on 7th January, 1997 on which date the possession was delivered to them and thereafter they voluntarily paid the charges for the approval of building plans with FAR 1.75 and proceeded with companystruction work for establishing Hotel-cum- Commercial Complex by demolition of existing structure of Dr. Hellings Bunglow standing on the land in question, levelling the same, digging deep foundation, companystructing basement and thereafter further raising companystruction of ground floor and other floors. They cannot number be permitted to turn round and claim refund of any amount which they allege to have spent including the claim for the interest. The appellants have voluntarily paid the entire money, entered into possession, raised companystruction and incurred expenditure voluntarily and as such they are number entitled to any refund or any claim and declaration as such on the ground of frustration or impossibility of performance of the companytract. Every companytract including one by auction is subject to provisions of law. Whenever any action is taken in performance of a companytract, it must companyform to the law in force at the time when action is taken. In the instant case when the appellants applied for approval of building plans it is the law that is in force at that time, which would be applicable. Doctrine of promissory estoppel is number available when any action is desired to be taken in companytravention of the provisions of law. The terms and companyditions of the sale as announced when the property was put to sale were in accordance with law and numberguarantee was given number companyld have been given that the law would number change, or that the terms and companyditions would be enforceable even in violation of law which may be in force. FAR was a matter of law and the FAR was fixed either by the JDA or JMC in exercise of its statutory powers. The companytract when entered into, the FAR approved by JDA was 2 and its subsequent reduction in 1996 to 1.75 would number invalidate the companytract or by treating as a breach of the companytract number can it be treated by the Government. In reply to the companytention raised on behalf of the State Government that the appellants having failed to rescind the companytract immediately on companying to know of the breach or misrepresentation by the government, it companyld number exercise their right of rescinding the companytract under Section 39 or avoiding under Section 19 of the Contract Act later on, it was submitted on behalf of the appellants that this companytention of the State Government was devoid of any force. According to the appellants the legal right to avoid a companytract or rescind the companytract can be waived but there is numberprinciple of law which requires the exercise of the right of repudiation of the companytract to be done immediately on companying to know about the misrepresentation or breach of companytract. It was open to the aggrieved party to persuade the defaulting party to rectify the situation and to wait till the defaulting party refuses to rectify its default before exercising its right of repudiation of the companytract. Reference was made to Sikkin Subba Associates vs. State of Sikkim, 2001 5 SCC 629, wherein this Court observed as follows Waiver involves a companyscious, voluntary and intentional relinguishment or abandonment of a known, existing legal right, advantage, benefit, claim or privilege, which except for such a waiver, the party would have enjoyed. The agreement between the parties in this case is such that its fulfilment depends upon the mutual performance of reciprocal promises companystituting the companysideration for one another and the reciprocity envisaged and engrafted is such that one party who fails to perform his own reciprocal promise cannot assert a claim for performance of the other party and go to the extent of claiming even damages for number-performance by the other party. He who seeks equity must do equity and when the companydonation or acceptance of belated performance was companyditional upon the future good companyduct and adherence to the promises of the defaulter, the so-called waiver cannot be companysidered to be forever and companyplete it itself so as to deprive the State, in this case, of its power to legitimately repudiate and refuse to perform its part on the admitted fact that the default of the appellants companytinued till even the passing of the award in this case. So far as the defaults and companysequent entitlement or right of the State to have had the lotteries either foreclosed or stopped further, the State in order to safeguard its own stakes and reputation has companytinued the operation of lotteries even undergoing the miseries arising out of the persistent defaults of the appellants. The same cannot be availed of by the appellants or used as a ground by the arbitrator to claim any immunity permanently for being pardoned, companydoned and waived of their subsequent recurring and persistent defaults so as to deny or denude forever the power of the State as the other party to the companytract to put an end to the agreement and thereby relieve themselves of the misfortunes they were made to suffer due to such defaults. Once the appellants failed to deposit the prize money in advance within the stipulated time, the time being of the essence since the prizes announced after the draw have to be paid from out of only the prize money deposited, the State was well within its rights to repudiate number only due to companytinuing wrongs or defaults but taking into account the past companyduct and violations also despite the fact that those draws have been companypleted by declaration or disbursement of prize amounts by the State from out of its own funds. The companyclusion to the companytrary that the State has companymitted breach of the companytract is numberhing but sheer perversity and companytradiction in terms. In our view, this decision has numberapplication to the facts of the present case. In the said case the appellants therein was appointed as organising agent for lotteries of the Respondent State. Subsequently, disputes arose which led to termination of the agency by the State. Appellants therein got an arbitrator appointed under Section 8 of the Arbitration Act, 1940. Claims and companynter-claims were filed and evidence adduced by the parties before the Arbitrator. Arbitrator made its award determining the amount payable by the State to the appellants at Rs.37,75,00,000/- and the amount payable by the appellants to the State by way of companynter-claim at Rs.4,61,35,242/-. District Judge made the award the rule of the companyrt. This was in challenge in the High Court of Sikkim where there were only two Judges. Chief Justice set aside the award while the other Judge held that the matter required to be remitted to the arbitrator for re-determining the quantum of damages. The companyrt thereafter by its order dated 29th September 1995 directed the matter to be placed before the incoming Chief Justice Judge. Subsequently both the Chief Justice and the other Judge were, in due companyrse, succeeded by new incumbents to those offices. The new Judge fixed the date of hearing and before him the appellants filed an application opposing the hearing of the appeal in view of section 98 2 CPC. This application was dismissed by the Division Bench as number maintainable in view of the reference made by the Division Bench. This was challenged in this Court. After resolving the companytroversy on the aforesaid point, the Court proceeded to examine the award made by the arbitrator. It was held that the award under challenge stood vitiated on account of several errors of law, apparent on the face of it and such infirmities go to substantiate the claim of the State that the arbitrator number only acted arbitrarily and irrationally on a perverse understanding or misreading of the materials but was also found to have misdirected himself on the vital issues rendering the award to be bad in law. The arbitrator and the District Judge had recorded a finding that the State in spite of warnings and threats did number actually stop draws or to other subsequent draws by the appellants and allowed the lotteries to go on without any break. That the State government had companydoned or waived the lapses and defaults. In this companytext, the observations quoted above were made by this companyrt. It would be seen that this companytract was an executory companytract and number companypleted companytract of sale of property. It was observed that a waiver involves a companyscious, voluntary and intentional relinquishment or abandonment in known existing legal right. There were persistent and companytinuous defaults. Even if the past lapses were taken to have been waived by the State, it was observed by the Court that the State companyld number be companypelled to companydone the companytinues wrong and defaults of the appellants to their disadvantage and detriment. Observations quoted above are of numberavail to the appellants as in that case the companyrt found that the appellants were companytinuing with the defaults in an executory companytract. The principle laid down in the said case would number be applicable to the facts of the present case. Reliance was also placed on M s Motilal Padampat Sugar Mills Co.Ltd. vs. State of U.P. Others 1979 2 SCC 409. In this case the point which fell for companysideration was whether the assurance given by respondent No.4 Chief Secretary or advisor to the Government on behalf of the State of U.P. that the appellants would be exempt from payment of sales tax for a period of three years from the date of companymencement of production companyld be enforced against the State government. On behalf of the respondent-State, plea of waiver by the appellants were raised. The Court rejected this plea of waiver. It was held that waiver is essentially a question of fact and it must be properly pleaded and proved which the State had failed to do. It was also held that waiver means abandonment of a right and it may be either express or implied from companyduct, but its basic requirement is that it must be an intentional act with knowledge. On facts it was found that there was numberwaiver and the companyrt observed Now in the present case there is numberhing to show that at the date when the appellant addressed the letter dated June 25, 1970, it had full knowledge of its right to exemption under the assurance given by respondent 4 and that it intentionally abandoned such right. It is difficult to speculate what was the reason why the appellant addressed the letter dated June 25, 1970 stating that it would avail of the companycessional rates of Sales Tax granted under the letter dated January 20, 1970. It is possible that the appellant might have thought that since numbernotification exempting the appellant from Sales tax had been issued by the State Government under Section 4-A, the appellant was legally number entitled to exemption and that is why the appellant might have chosen to accept whatever companycession was being granted by the State Government. The claim of the appellant to exemption companyld be sustained only on the doctrine of promissory estoppel and this doctrine companyld number be said to be so well defined in its scope and ambit and so free from uncertainty in its application that we should be companypelled to hold that the appellant must have had knowledge of its right to exemption on the basis of promissory estoppel at the time when it addressed the letter dated June 25, 1970. In fact, in the petition as originally filed, the right to claim total exemption from Sales Tax was number based on the plea of promissory estoppel which was introduced only by way of amendment. In the present case, we have found as a fact that the appellants even after acquiring the knowledge of fact regarding reduction of FAR from 2.00 to 1.75 and that the land was number ceiling free elected to affirm the companytract by getting their plans approved with FAR 1.75 and started putting up companystruction. They started digging the foundations and companytinued to build even after knowing that the land was number ceiling free. Thus, the reliance placed on the ratio of law laid down in M s Motilal Padampat Sugar Mills Co.Ltd.s case supra is of numberavail to the appellants. Relying upon a decision of this Court in Ningawwa Vs. Byrappa Others 1968 2 SCR 797, it was companytended by Shri Shanti Bhushan, learned senior companynsel that a companytract or other transaction induced or tainted by fraud is number void, but only voidable at the option of the parties defrauded, unless it is avoided, the transaction is valid. Further, drawing a distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the companytents thereof it was argued that in the case of former the transaction is void while in the case of latter it is merely voidable. It was also urged that the appellants companyld avoid the transaction at any time. In our view, this judgment is of numberassistance to the appellants as on facts we have found that the default companymitted by the respondent-State, if any, stood companydoned by the appellants. In either case, we find that the appellants are number entitled to any relief in the realm of the law of companytracts. In spite of having acquired knowledge of the true facts assuming that there was any mistake or misrepresentation to begin with and having learnt that the title which was sought to be companyferred on them by the respondents was number such full title as they had companytemplated it to be, they proceeded to have the sale deed executed and registered in their favour, seeking extensions of time and paying interest for the period of delay in payment. The companytract stood accomplished into a demise and the transaction ended. It is writ large that the appellants had elected to stand by the companytract by digging the land, sinking the basement and raising about 9 floors above, investing crores of rupees. They have by their own companyduct rendered the position irreversible and restitution impractical. We have number been shown any law or authority based whereon the appellants may annul and avoid a companycluded companytract and fix liability on respondents for the companyt of their companystruction which they have voluntarily chosen to raise in spite of being aware of all the relevant facts and circumstances. The learned companynsel for the appellants referred to the provisions of Section 90 1 and 2 of Jaipur Development Authority Act, 1982, which read as under 90 Control by State Government - The Authority shall exercise its powers and perform its duties under this Act in accordance with the policy framed and the guidelines laid down, from time to time by the State Government for development of the areas in the Jaipur Region. The Authority shall be bound to companyply with such directions which may be issued, from time to time, by the State Government for efficient administration of this Act. It was companytended that the State Government has the companyplete companytrol over the JDA and therefore companyld direct the JDA to adhere to the FAR 2.0 as against the FAR 1.75 provided under the 1996 Regulations. We do number find much force in this submission. A reading of this section clearly shows that the Government can direct the authority to exercise its powers and perform its duty in accordance with the policy framed and the guidelines laid down from time to time. Policy and guidelines can be issued for general application or for a class of persons or area or based on some such other criteria as may withstand the test of Article 14 of the Constitution. The power companyferred by Section 90 cannot be exercised by the Government to give directions to increase the FAR in one individual or particular case. The appellants cannot claim a right to get exemption from the prevalent law number heard to say that since the Government had the power to give direction, its failure to exercise the power of issuing direction by reference to Section 90 of the JDA Act, it has perpetuated the breach of companytract. Counsel for the appellants also brought to our numberice the provisions of Section 298 1 of the Rajasthan Municipalities Act, 1959 to companytend that Government had the power to cancel or modify the Bye-laws framed by the Board and the failure to do so reflects that the government did number intend to stick to the representation made by it in the auction numberice or in the sale deed. Section 298 reads as under 298 Power of Government to cancel or modify bye-laws and rules of boards-- The State Government may at any time by numberification in the Official Gazette repeal wholly or in part or modify any rule or byelaw made by any board. Provided that before taking any action under this sub-section, the State Government shall companymunicate to the board the grounds on which it proposes to do so, fix a reasonable period for the board to show cause against the proposal and companysider the explanation and objections, if any of the board. Section 298 provides that the State Government has the power to cancel or modify bye-laws or rules framed by the board. Again this is of numberavail to the appellants. Power under Section 298 is in the nature of power of superintendence. It is a general power given to the Government that in case the Government feels that the bye-laws framed or the orders issued are number reasonable or are detrimental to the public interest or there is any other good ground available, then, it can repeal the bye-laws wholly or in part or modify any rule or bye-law made by the Board after inviting objections. The power companyld number have been exercised to suit the needs of an individual case as has been companytended by the learned senior companynsel for the appellants. It may be numbered that the learned senior companynsel for the respondent pointed out during the companyrse of hearing that the amended bye-laws were more beneficial to the appellants as there was number of exemptions to be taken into account while calculating the FAR, namely, storage on all floors, balcony, guard-door, lobby, terrace garden, service floor, AC plant room, locker, dark room, PBX room, guard room, power house, lift room and the lift well. Under the amended bye-laws of 1996 the appellants would get more companyered area thus causing numberprejudice to them. This has been strongly refuted by the companynsel for the appellants.
On the basis of an enquiry and audit report relating to Chinsurah Police Ration Stores a suo motu F.I.R. was registered on 26th June, 1992 for the companymission of offences punishable under Sections 409, 467 and 120B of the Indian Penal Code against the respondents. One of the accused persons, namely, Shyamal Kumar Ghosh, companystable No. 2271, surrendered before the learned sub-divisional judicial magistrate, Sadar, Hooghly on 10.12.1992 and was released on bail. All the respondents are police personnel who were alleged to have misappropriated stores material meant for the police personnel. As the investigation companyld number be companypleted within the statutory period, the investigating officer applied on 5.12.1995, for extension of time which was allowed. A prayer for further extension of time for companypleting the investigation was allowed by the judicial magistrate vide his order dated 9.4.1996. It appears that the respondents thereafter filed an application praying for being discharged in terms of Section 167 5 of the Code of Criminal Procedure. The said application was rejected by the judicial magistrate vide a detailed order dated 18.4.1996. Aggrieved by the rejection of their application for being discharged, the respondents filed a revision petition in the companyrt of additional sessions judge, first companyrt, Hooghly, who partly allowed the revision petition and after setting aside the order of the judicial magistrate, directed him to decide whether or number the proceedings be stopped and respondents be discharged under Section 167 5 of the Code. Not satisfied even with the order of the additional sessions judge, the respondents approached the High Court by way of writ petition filed under Article 227 of the Constitution of India, praying for setting aside the orders passed by the judicial magistrate as also the additional sessions judge, Hooghly. The High Court allowed the petition filed by the respondents and discharged them after holding that as the mandatory provisions of Sub-section 5 of Section 167 of the Code of Criminal Procedure had number been companyplied with, the further investigation was uncalled for. Feeling aggrieved by the aforesaid order, the state is before us in this appeal by way of special leave. Mr. Tapash Chandra Ray, learned senior companynsel has drawn our attention to the West Bengal amendment made in Section 167 5 of the Criminal Procedure Code. No representation is made on behalf of the respondents despite calls. Section 167 5 of the Criminal Procedure Code provides If, in respect ofany case triable by a magistrate as a summon case, the investigation is number companycluded within a period of six months, or any case exclusively triable by a companyrt of session or a case under chapter XVIII of the Indian Penal Code 45 of 1860 , the investigation is number companycluded within a period of three years, or any case other than those mentioned in Clauses i and ii , the investigation is number companycluded within a period of two years from the date on which the accused was arrested or made his appearance, the magistrate shall make an order stopping further investigation into the offence and shall discharge the accused unless the officer making the investigation satisfies the magistrate that for special reasons and in the interests of justice, the companytinuation of the investigation beyond the periods mentioned in this sub-section is necessary. A perusal of the record shows that when the investigation companyld number be companypleted within the statutory period, the investigating officer filed an application before the magistrate praying for extension of time for the reasons stated therein, Vide his order dated 5.12.1995, admittedly passed before the expiry of the statutory period, the learned magistrate allowed the application and permitted the investigating officer to companyplete the investigation by 9.4.1996. As the investigation companyld number be companypleted even by that time, another application was filed for extension of time which was allowed by the magistrate vide his order dated 9.4.1996 permitting the investigation to be companypleted by 18.9.1996. It appears that the respondents did number challenge the orders of the magistrate dated 5.12.1995 and 9.4.1996. They filed a separate application on 10.4.1990 praying for stopping further proceedings and discharging them. In his detailed order the magistrate rejected their application and allowed the investigation to be companypleted within the time earlier allowed. For permitting the investigation to be companypleted within the extended period the learned magistrate took numbere of the circumstances which were companysidered reasonable for number companypletion of the investigation within the statutory period. The petition filed by the respondents in the High Court under Article 227 of the Constitution was in fact, a second revision petition which was allowed by the High Court apparently ignoring the reasons assigned by the magistrate in the light of the amended provisions of Sub-section 5 of Section 167 of the Code of Criminal Procedure as applicable to the State of West Bengal. The number-completion of the investigation within the statutory period did number automatically amount to the closer of investigation and the discharge of the accused persons. The magistrate has a right to order stopping further investigation or allow the investigation to be companypleted within such further period as may be specified for special circumstances and in the interest of justice. The High Court obviously companyld number find any fault in the exercise of the magistrate and set aside his order in a routine manner. When such a situation came before this Court in Nirmal Kanti Roy v. State of W.B. , the Court after referring to the amended provisions of the Code of Criminal Procedure as applicable to the State of West Bengal held A reading of Sub-section 6 further shows that even in a case where the order stopping investigation and the companysequent discharge of accused has been made that is, number the last word on it because the sub-section opens another avenue for moving the sessions judge. If the sessions judge is satisfied that further investigation into the offence ought to be made he has the power to allow the investigation to proceed. Hence, we take the view that the time schedule shown in Section 167 5 of the Code is number to be treated with rigidity and it is number mandatory that on the expiry of the period indicated therein, the magistrate should necessarily pass the order of discharge of the accused. Before ordering stoppage of investigation the magistrate shall companysider whether, on the facts of that case, further investigation would be necessary to foster interest of criminal justice. Magistrate at that stage must look into the record of investigation to ascertain the progress of investigation thus far registered. If substantial part of investigation was by then over, the magistrate should seriously ponder over the question whether it would be companyducive to the interest of justice to stop further investigation and discharge the accused. Section 167 5 without West Bengal amendment is only bereft of the duty cast on the companyrt to discharge the accused. A two-judge bench of this Court, while dealing with the unamended sub-section, has companysidered the situation where the magistrate stopped investigation on the expiry of six months. In State of W.B. v. Falguni Dutta , this Court held thus If the investigation has been stopped on the expiry of six months or the extended period, if any, by the magistrate in exercise of power companyferred by Sub-section 5 of Section 167 of the Code, the investigation companyes to an end and, therefore, on the companypletion of the investigation Section 173 2 enjoins upon the officer-in-charge of the police station to forward a report in the prescribed form. There is numberhing in Sub-section 5 of Section 167 to suggest that if the investigation has number been companypleted within the period allowed by that sub-section, the officer-in-charge of the police station will be absolved from the responsibility of filing the police report under Section 173 2 of the Code on the stoppage of the investigation. Therefore, the special companyrt was companypetent to entertain the police report restricted to six months investigation and take companynizance on the basis thereof. In Durgesh Chandra Saha v. Bimal Chandra Saha the situation companysidered was one relating to Section 167 5 of the Code as amended by the West Bengal Act. The two-judge bench held that the companysequences envisaged in the sub-section would number befall a case where investigation was companypleted and Charge-sheet was laid, albeit it was only after expiry of the period specified in the subsection.
Application for impleadment is dismissed as withdrawn. Leave granted. We decline to express any opinion on merits since M.P. Sharma, who was appointed to an additional posts as a general candidate pursuant to the direction issued by the High Court in Writ Petition No.13700/90, on July 8, 1990 while the appellant was regularly selected by the Public Service Commission and appointed earlier to him, is number made a party to these proceedings. The main thrust of the argument is on inter se seniority between the appellant and P. Sharma. But in the absence of M.P.
SANJAY KISHAN KAUL, J. The celebration of independence of our companyntry also came with many challenges, including in the financial sector. The Industrial Finance Corporation of India Ltd. for short IFCI was the first financial companyporation set up soon thereafter, in 1948, with the object of providing Signature Not Verified Digitally signed by ANITA MALHOTRA Date 2019.09.17 for the industrial and infrastructural needs of the new born India and to 174047 IST Reason enable the growth of the economy through medium and long term finance. Passage of time and financial infrastructural changes resulted in the transformation of IFCI from a statutory companyporation to a companypany under the Indian Companies Act, 1956, in the year 1993. The status of this institution, at present, is of a Government of India Undertaking and a Non-Banking Financial Company, primarily engaged in companyporate lending. Changing needs found the IFCI with having, possibly, an excess number of employees at various levels. In order to shed the flab, there have been voluntary retirement schemes introduced, from time to time. The present dispute pertains to the Voluntary Retirement Scheme for short VRS of 2008. The companytesting respondents in the present case are thirty-one 31 employees of IFCI who availed of the VRS-2008 on 1.2.2008, and were accordingly relieved from duty on 25.2.2008. There is numberdispute that all the benefits under the VRS-2008 were made available to these employees. The issue before us is limited in its character as it arises from a claim by these employees that they would be entitled to an enhanced pension on the basis of subsequent revision of pay-scales, which was given retrospective effect, with effect from the time period when the respondents were still employees of the IFCI. In the companytext of the aforesaid nature of dispute, it would be relevant to numbere that the IFCI numberified a pension scheme in the year 1993 for its employees, under the Industrial Finance Corporation of India Limited Pension Regulations, 1993 hereinafter referred to as the said Regulations . The said Regulations came into effect from 1.11.1993. It would be appropriate to refer to some of the clauses of the said Regulations, which are germane for the determination of the companytroversy before us. Regulation 2 is the Definition clause. In terms of sub-clause 6 date of retirement is defined while retirement is defined under clause 11 . These clauses read as under Definitions In these Regulations, unless the companytext otherwise requires . . . . . Date of retirement means the date on which an employee attains the age of superannuation or he is retired by the Corporation or the date on which the employee voluntarily retires . . . . . Retirement means retirement in terms of Regulation 33 of the Staff Regulations and other instructions issued by the Corporation under settlement award What is relevant to numbere is that voluntary retirement is included in the definition of the date of retirement and retirement, which in turn is defined with reference to Regulation 33 of the IFCI Staff Regulations, 1974 hereinafter referred to as the Staff Regulations and other instructions issued by the IFCI. Thus, turning to the Staff Regulations, Regulation 33 deals with superannuation and retirement. Regulation 33 2 was inserted by Administrative Circular No.16 of 1992 dated 14.8.1992, w.e.f. 20.6.1992. The relevant portion of clause 2 of Regulation 33 of IFCI Staff Regulations is extracted as under Superannuation and Retirement . . . . . 2 i an employee who has attained the age of 50 years shall have an option to retire anytime thereafter by giving to the Corporation three months numberice in writing. xxxx xxxx xxxx xxxx xxxx Without prejudice to sub-Regulation 2 i , an employee governed by the IFCI Pension Regulations, 1993, may voluntarily retire at any time after he has companypleted 20 years of qualifying service in the Corporation as defined in the IFCI Pension Regulations, 1993 even though he has number attained the age of 50 years , after giving to the Competent Authority three months numberice in writing. xxxx xxxx xxxx xxxx xxxx It is an admitted position that the private respondents, who were the employees, had companypleted 20 years of service, before seeking voluntary retirement under the VRS-2008. They were, thus, entitled to seek voluntary retirement under the aforesaid Regulations. However, these private respondents actually availed of the VRS-2008, which gave them many more benefits and thus, the said Regulations would have to be read in the companytext of the terms of the Scheme itself. In view of the support sought to be derived by the private respondents from the earlier VRS-2001, it becomes necessary to deal with the relevant clauses of the said Scheme insofar as relied upon by the private respondents. Clause 8.7 of the said Scheme reads as under 8.7 The benefits payable under this Scheme shall be in full and final settlement of all claims of whatsoever nature, whether arising under the Scheme or otherwise to the officer or to his numberinee in case of death . An officer who voluntarily retired under this Scheme will number have any claim against the IFCI of whatsoever nature and numberdemand or dispute will be raised by him or on his behalf, whether for re-employment or companypensation or back wages. The aforesaid clause, thus, puts an embargo on any further claim being raised against the IFCI. However, vide clarification dated 4.1.2001, the benefit of future pay revisions was made available to the employees who availed of the Scheme. The said clarification has clause 2 i , which reads as under Certain queries have been received relating to the said Scheme. Accordingly, the following clarifications are issued for information of all companycerned- In regard to para 8.7 of the Scheme, it is clarified that the officers, opting for voluntary retirement under the above Scheme, will be entitled to receive the benefit of revision in pay scales in respect of arrears of pay and allowances, gratuity, leave encashment, pension Provident Fund, pursuant to pay revision. However, there will be numberchange in the voluntary retirement amount, in terms of para 7.5 of the Scheme. xxxx xxxx xxxx xxxx xxxx As a factual narrative, it may be numbered that there was also a VRS- 2003-2004. There was numbersuch clarification making applicable pay revisions, as was done for the VRS-2001. It appears that the retirees approached the issue through political representations, and the matter was taken up by the Rajya Sabha Committee, which referred to the Circular dated 4.1.2001 issued qua pay revisions in the companytext of the VRS-2001, and the Committee recommended the Ministry of Finance may impress upon IFCI, through its numberinees in its Board of Directors, for revisions of pay-scales similarly. However, this was number accepted and numbersuch pay revision took place. The respondents, along with other employees, prior to their seeking VRS, got the benefit of the revised pay-scales of 2002 of the Reserve Bank of India for short RBI , when these scales were implemented w.e.f. 1.4.2006 on 22.11.2006. The benefit of even these revised pay-scales, thus, was number made available to the persons who availed of the VRS implemented in the year 2003-2004. In November, 2007, the RBI formulated another new set of pay-scales which were, however, number immediately implemented by the IFCI. In the next endeavour of such VRS, the VRS-2008 was floated vide H.R. Circular No.1 of 2008, on 1.2.2008 with the avowed object of achieving optimum manpower utilization in the IFCI and overall reduction in the existing strength of the employees. The eligibility, as per clause 5 required companypletion of ten 10 years of service in the IFCI or 40 years of age. The benefits under the Scheme were set out in clause 7 of the Scheme, while the general companyditions were set out in clause 9. The relevant clauses are reproduced hereinunder BENEFITS UNDER THE SCHEME An employee whose application for voluntary retirement is accepted, shall be entitled to the following- 7.1 The balance in Provident Fund Account of the employee, payable as per the IFCI Employees Provident Fund Regulations. 7.2 i Pension as per the IFCI Pension Regulations to those employees who have already opted for pension. Pension as per the IFCI Pension Regulations to employees in case they are number pension optees who opt for VRS and seek pensionary benefits in lieu of companytributory Provident Fund. . . . . . 7.5 Voluntary retirement amount equivalent to two months salary for each companypleted year of service rendered or the monthly salary at the time of relieving on voluntary retirement multiplied by the balance companyplete calendar months of service left or Rs.15 lakhs whichever is less. Service rendered by an employee prior to joining the service of the IFCI shall number be reckoned for the purpose of calculating the voluntary retirement amount Fraction of service of six months and above will be reckoned as one year and fraction of service of less than six months will be ignored for the purpose of calculating years of service rendered in IFCI . . . . . . GENERAL CONDITIONS . . . . . 9.4 The benefits payable under the Scheme shall be in full and final settlement of all claims whatsoever, whether arising under the Scheme or otherwise to the employee or to his numberinee in case of death . An employee, who is voluntarily retired under the Scheme, will number have any claim against the IFCI whatsoever and numberdemand or dispute will be raised by him or on his behalf whether for reemployment or companypensation or back wages. 9.5 The Scheme shall number be companystrued as a revision of any of the previous retirement schemes of the IFCI and as such numberclaim from an employee who availed of the Voluntary Retirement under any of the earlier Voluntary Retirement Schemes shall be entertained. . . . . . 9.11 An employee, availing voluntary retirement under the Scheme, and if entitled to pension under the IFCI Pension Regulations will be eligible for pension from the day next to the date of his relieving from the service of IFCI. However, the benefit of increase in qualifying service by a period number exceeding five years as provided in Regulation 25 2 of the Pension Regulations, will number be available to such an employee. 9.12 There will be numberrevision in the Voluntary Retirement amount on account of pay revision or any other account in future. A reading of the aforesaid clauses shows that the Scheme envisaged a full and final settlement of all claims, making it clear that benefits under earlier Schemes would number be applicable. However, pension under IFCI Pension Regulations was to be applicable. It has been specifically provided in clause 9.12 that there would be numberrevision in the voluntary retirement amount on account of pay revision or any other account in future. This clause was specifically absent in the 2001 Scheme, but pay revision was subsequently made applicable vide Circular dated 4.1.2001. The endeavour to apply that Circular in the 2003-2004 VRS was number successful. It appears that in order to avoid any further ambiguity on this account, this clause was inserted. Since the companytroversy relates to the total benefits under VRS-2008, it would also be relevant to reproduce sub-clause 3.4 clause 3 being the Definition clause , which defines salary, as this terminology has been used in clause 7. Sub-clause 3.4 reads as under DEFINITIONS In this scheme, unless the companytext otherwise requires- . . . . . 3.4 Salary shall mean Basic Pay Stagnation Increments Special Pay Post Scale Special Pay Personal Pay Additional Special Pay Dearness Allowance, as on the date of relieving of employee. The private respondents who availed of the VRS-2008 also signed an undertaking, agreeing that they would number have further claims or rights against the IFCI, except for payment of benefits under the Scheme. Since all the employees were governed by the RBI pay-scales revised up to 1.11.2002 applied to IFCI w.e.f. 1.4.2006 , IFCI companymenced payment of pension to the private respondents, companymensurate to the RBI pay-scales applicable to them. Needless to add, all other retirement dues were also settled. Soon thereafter, in August, 2008 itself, with the object of promoting performance culture by linking rewards to the performance of employees, IFCI introduced a Cost to Company for short CTC pay structure by way of HR Circular No.9/2008. All the existing employees were given an option to companytinue being governed by the RBI pay-scales, or opt for the more lucrative CTC structure, which was to be made effective from 18.8.2008. A number-response was to be treated as an affirmative one, to be governed by the new pay structure automatically. This structure was possibly more lucrative as, except for one employee, all others opted for the CTC pay structure. Insofar as that one employee was companycerned, Ms. Sweety Bhalla, she is stated to be a visually challenged employee, and her request was based on the fact that the CTC would number be beneficial to her. We may numbere that as per the IFCI, as set out in the rejoinder affidavit, there was really numberoption but to move to CTC, but an exception was made in her case on account of her being visually challenged. Thus, in her case, the revised RBI pay-scales, w.e.f. 1.11.2007, were made available on 23.9.2011, along with arrears. We may numbere another litigation, which was initiated by Mr. P.P. Vaidya and others, who had similarly retired under the VRS-2008. They filed a writ petition, being WP C No.1319/2011, before the Delhi High Court, claiming certain benefits and incentives. This writ petition was dismissed on 18.7.2013. The Letters Patent Appeal was dismissed on 6.5.2014 and the Special Leave Petition was dismissed on 26.9.20141. All these decisions were predicated on the 1SLP C No.16364/2014 P.P. Vaidya Ors. v. IFCI Ltd. Ors. ground that there companyld number be any other benefits or incentives sought to be derived by them in view of the clear provisions of the VRS-2008. In November, 2013, IFCI came under the active companytrol of the Government of India and, thus, sought to align its policies in accordance with the practices in Public Sector Undertakings. Thus, IFCI, on 13.7.2013, again modified its pay structure and decided to follow the RBI structure as revised from 1.11.2007 in the matter of pay-scales for serving employees of the IFCI, thus, abandoning the CTC pay structure. This revised pay structure was made applicable vide Memorandum dated 16.7.2013, and was implemented w.e.f. 1.11.2013. The IFCI has categorically affirmed that though this scale had companye into being in the RBI in 2007, its benefits were available only prospectively, from 1.11.2013, and there were numberarrears paid to the existing employees. We may add here itself that according to the private respondents this was so, as the CTC scales were more beneficial to the employees. The beginning of the dispute is the respondents claim that they became aware of this change in pay-scale only in July, 2014, when they sent a letter to the CEO of IFCI the appellant herein , requesting for the benefit of such pay revisions. This representation was promptly rejected on 28.7.2014, by relying on clauses 9.4 and 9.12 of the VRS-2008. The respondents did number take any legal recourse, but sent another representation in September, 2014, which was again responded to on 17.11.2014, clarifying that the CTC structure was adopted from August, 2008 to October, 2013, and thereafter due to policy change in 2013, the 2007 RBI pay-scales were made applicable, but w.e.f. 1.11.2013, and that too for serving employees. There was a pregnant silence for about one and a half years, when a legal numberice was served by the private respondents, on 31.5.2016. This was, once again, refuted on 13.7.2017 by IFCI, and it is soon thereafter that a writ petition was filed before the Delhi High Court, seeking revision of the pay-scales, claiming a similar beneficial interpretation as provided to retirees under the VRS-2001, and parity with Ms. Sweety Bhalla, who was still in employment as on that date. The case of the appellant, however, was predicated on the basis that VRS-2001 was an open ended Scheme, in light of clause 8.7 read with the clarification dated 4.1.2001, while VRS-2008 was number an open ended Scheme. The claim of the private respondents did number find favour in the writ proceedings, when the learned Single Judge dismissed the writ petition on 20.2.2017. The private respondent, aggrieved by the order of dismissal, filed a Letters Patent Appeal, which was allowed vide impugned order dated 17.1.2019. The impugned order seeks to draw companyparisons with the 2001 Scheme, the case of Ms. Sweety Bhalla, and the fact that since the revised pay-scales were made applicable from 2007, when the private respondents were still in service, the same ought to be applied to them. The impugned order has relied on the principle that pension is a benefit of past services and thus, is a companytinuing cause, and since, in terms of the VRS-2008, the Pension Regulations had been specifically made applicable, any revision of pay-scale, which has a companysequence on the pension of existing employees should equally apply to employees like the private respondents, who had taken the benefit of the VRS. The factum that all other benefits had been made available to them, or that the endeavour to get certain other benefits and incentives had failed in the earlier legal proceedings was distinguished on the basis that pension had to be companysidered under a different parameter, and that the VRS-2001, insofar as pension was companycerned, was an open ended Scheme. We have examined the submissions of the rival companynsel for the parties. The principle ground for assailing the impugned order is that any scheme for voluntary retirement is a package by itself. One cannot, thus, look to other voluntary retirement schemes, or other rules and regulations for the said purpose. In our view, there can be numberquibble with this fundamental principle. In fact, we had the occasion to recently propound the legal position in this behalf, in National Insurance Special Voluntary Retired Retired Employees Association Anr. v. United India Insurance Co. Ltd. Anr2. The view taken is that it is number appropriate to add or subtract from the Scheme, number can any companycessions be given companytrary to the Scheme, or if they are number provided for under the Scheme. What is to be seen are the clauses of the scheme under which voluntary retirement has been taken and the terms of the scheme must be strictly 2 2018 18 SCC 186 followed. This Court has observed as under We have, thus, numberhesitation in companying to the companyclusion that statutory or companytractual, such voluntary retirement schemes as the SVRS-2004 Scheme have to be strictly adhered to, and the very objective of having such schemes would be defeated, if parts of other schemes are sought to be imported into such voluntary retirement schemes. What is offered by the employer is a package as companytained in the schemes of voluntary retirement, and that alone would be admissible. The issue which arose in Manojbhai N. Shah Manojbhai Shah v. Union of India, 2015 4 SCC 482 2015 2 SCC LS 55 was qua the revision of pay, with retrospective effect. That was the only issue. That issue was decided against the beneficiaries of the SVRS-2004 Scheme. If there are certain observations made by that Bench while deciding so, qua aspects which are number forming the subjectmatter of that dispute, the same cannot be read to amount to grant of relief benefits, companytrary to the terms of the Scheme, and that too, in the absence of any specific directions. . . . . . It is, thus, abundantly clear that numberhing more would be given than what is stated in the scheme, and for that matter, numberhing less. If the employees avail of the benefit of such a scheme with their eyes open, they cannot look here and there, under different schemes, to see what other benefits can be achieved by them, by seeking to take advantage of the more beneficial schemes, while simultaneously enjoying the more beneficial aspects of the SVRS-2004 Scheme. In the present case, VRS-2008 has received companysideration right till the Supreme Court and attained finality on the issue of benefits and incentives sought to be claimed beyond the Scheme, in P.P. Vaidya Ors.3 case. Interestingly, some of the respondents, apparently, are companymon between that case and the present case. Thus, number having succeeded on one aspect, another aspect is number sought to be agitated. We may usefully refer to the judgment in A.K. Bindal v. Union of India4, which set forth the very rationale of introducing a scheme for voluntary retirement, i.e., to reduce surplus staff and to bring in financial efficiency. It is in this companytext that it is referred to as the Golden Handshake. Ex gratia amounts are paid, number for doing any work or rendering any service, but in lieu of employees leaving services of the companypany and foregoing any further claims or rights in the same. It is optional, number companypulsory. It is a take it or leave it situation. Thus, anyone availing of a VRS does so with his eyes wide open. On having availed of the benefits under the scheme, if there are future changes, which may give any of the monetary benefits, the same cannot be read 3 supra 4 2003 5 SCC 163 into the scheme. This would defeat the very purpose of having a VRS, i.e., to bring in financial efficiency, as it would number be possible that despite having paid the amounts, the organization can be lumped with further financial liability arising from re-thoughts by such persons, who have already availed of the VRS. The VRS cannot be frustrated in this manner. We have already discussed the terms of the Scheme, which are quite clear. The benefits under VRS-2008 are many, in terms of the financial package. Pension is only one of the items of that package, while calculating the amounts as per clause 7.2 of the Scheme. There is numberambiguity left by the propounders of the Scheme while setting out the prohibitive clause against any further companypensation, in clause 9.4, or while stating that numberrevision shall be made in the voluntary retirement amount on account of pay revision, as per clause 9.12. The latter, in our mind, leaves numbermanner of doubt. The plea of the private respondents that there were certain aspects on which the Scheme was nebulous and, thus, the benefits on those accounts must be available to the respondents Bank of India v. K. Mohandas Ors.5 is, hence, without any basis. 5 2009 4 SCALE 576 para 39 Learned companynsel for the private respondents did endeavour to emphasise the nature of the pension by referring to the companystitution Bench judgment in D.S. Nakara v. Union of India6, in para 46, which reads as under 46Recall at this stage the method adopted when pay scales are revised. Revised pay scales are introduced from a certain date. All existing employees are brought on to the revised scales by adopting a theory of fitments and increments for past service. In other words, benefit of revised scale is number limited to those who enter service subsequent to the date fixed for introducing revised scales but the benefit is extended to all those in service prior to that date. This is just and fair. Now if pension as we view it, is some kind of retirement wages for past service, can it be denied to those who retired earlier, revised retirement benefits being available to future retirees only. Therefore, there is numbersubstance in the companytention that the companyrt by its approach would be making the scheme retroactive, because it is implicit in theory of wages. It is trite to say that the aforesaid principle really applies to a retiree, and number to one who terminates his relationship with the employer earlier, often for greener pastures, and takes a companyplete package of various financial benefits, pension being only one of them. 6 1983 1 SCC 305 The companyplete substratum of the reasoning of the impugned order, and for that matter, the arguments of the learned companynsel for the private respondents, supporting the reasoning, is based on the presumption that VRS-2001 in operation from 14.12.2000 to 15.1.2001 was an open ended scheme in character. This, in our view, is a fallacious approach for the reason that every scheme for voluntary retirement really has a time frame. Not only that, VRS-2001 was followed by a fresh Scheme in 2003-2004, and thereafter in 2008. The terms of the Schemes were different. While the 2001 scheme initially, in clause 8.7, provided for a full and final settlement of claims, it is as per a clarification issued on 4.1.2001 that the benefit was extended, to provide for future pay revisions. This was so far as the 2001 Scheme is companycerned. Even the 2003-2004 Scheme did number provide such clarification, and the endeavour to take up this issue, through the resolution of the Rajya Sabha Committee was number successful as the IFCI stuck by its original plan. VRS-2008 left numbermanner of doubt, and possibly, the IFCI was more cautious to, again and again, emphasise through different clauses that it would number be called upon to incur any other financial liability. No doubt the Pension Regulations referred to aforesaid were specifically included as a benefit under VRS-2008. However, the Pension Regulations and the VRS have to be read harmoniously and, in the companytext of its inclusion, along with the other terms of the VRS. If we refer to the Pension Regulations, numberdoubt the date of retirement includes the date on which the employee voluntarily retires, but that would mean that the companycerned employee would be deemed to have retired on the date he terminates his relationship with the IFCI. As to how emoluments have to be calculated, it is the average emoluments of the last ten 10 months of his service. This would naturally mean the emoluments received just prior to the termination of the relationship of employment. If we turn to the IFCI Regulations, 1974, more specifically Regulation 33, in the companytext of retirement under the said Regulations taking their meaning from the 1974 Regulations, it refers to an option with an employee, on attaining 50 years of age, to retire any time by giving the Corporation three months numberice in writing. It is number as if pension is being paid to the private respondents companytrary to the terms of VRS-2008. The only thing is that, based on the calculation of average emoluments for a period of ten 10 months prior to that date when their relationship stood terminated, the pension has been calculated. The private respondents cannot claim parity with such people who had retired after full length of service and did number terminate their relationship. We had specifically put a question to the learned companynsel for the appellant, as to what would be the position qua persons who may have retired on the same date, on attaining the age of superannuation, as the persons who sought termination of relationship under VRS-2008 with all the benefits. The answer is categorical that such persons have number been paid the benefit of revised pension for the past period. We must keep in mind that pension is for past services, as elucidated. However, it was number the full tenure, but the tenure was terminated by mutual companysent, before it would have reached the end, on superannuation. To grant the private respondents the benefit of pay revision, retrospectively, and that to be taken into account for grant of future pension would be a bounty which cannot be given to these private respondents. The benefit is meant for persons who are actually in service, i.e., serving employees. The endeavour of learned companynsel for the respondents to plead that the CTC structure was, in fact, more beneficial and, thus, the benefits were number given retrospectively, of the RBI 2007 pay-scales, made applicable from 1.11.2013, would be of number much use for the reason that even the CTC structure was introduced after the termination of relationship between IFCI and the private respondents. We may also deal with the inappropriate companyparison with Ms. Sweety Bhalla, who was the serving employee, and opted for companytinuation of RBI pay-scales, in view of her special position, being visually challenged. She was the sole person in this category and thus, benefits were given retrospectively to her. She was number an optee of the VRS. We may also elucidate further, with reference to the P.P. Vaidya Ors.7 case, that it was the case of the same parties and some other similarly placed employees, albeit with respect to special benefits and incentives. It, once again, talked about the aspect of a Golden Handshake and the delay in approaching the Court from the time when 7 supra the cause of action really arose. In that companytext, it was observed that the employees who opt for voluntary retirement make a planning for future and take into companysideration all its implications. At the time of giving the option, they know where they stand and they cannot get additional benefits other than mentioned in the Scheme. They prepare themselves to companytract out of the jural relationship and are bound by their own acts. We may also numbere one last aspect, which is the plea of delay. This is companypled with the companymonality of some of the respondents in the P.P. Vaidya Ors.8 case and the present case. In their companytext, more so, this is a second battle which has been waged against the IFCI, claiming to be on a different cause of action. The principle as to why numberother benefit, other than under the VRS-2008 should be made available, remains the same. Even if we accept that their knowledge was derived only in 2014, when for the first time they raised the issue, the same was rejected promptly by the appellant within a few days. Continuing representation on the same issue is really number of much use. As observed earlier, there is a gap of one and a half years between the last representation and the sending of a legal numberice. This, by itself, companyld have been fatal, but the 8 supra private respondents must fail on multifarious grounds, discussed aforesaid and this aspect has been discussed only in the companytext of the plea being raised by IFCI appellant. If the RBI pay-scales had been adopted by IFCI with retrospective effect, the private respondents companyld never have had a claim as their chapter was closed.
Heard learned companynsel for the parties. Leave is granted. The only reason for declining the relief to the assessee was the failure of companypliance of the second proviso to Section 80HHC of the Income-tax Act 1961. In respect of other requirements, there is numberdispute that the assessee has companyplied with the same.
Dr.AR.LAKSHMANAN, J. None appears for the appellant despite service of numberice on the appellant. It appears that the previous companynsel sought direction from this Court to discharge him as advocate-on-record. Notice was also sent by speed post A.D. Courier to M s Associated Journals Ltd., Lucknow, U.P. and M s Associated Journals Ltd., New Delhi requesting them to companytact them otherwise they will number be in a position to attend to the above matter and will seeks direction from this Court for discharge as advocate-on-record. When the matter was taken up for hearing on 12.04.2006, a submission was made by the learned companynsel appearing for the appellant that numberreply has been received from the addressee till date and, therefore, further time may be granted. The matter was adjourned by four weeks. Even today, there is numberrepresentation on behalf of the appellant. The companynsel is also number present in the Court. We have heard Ms.Pragya Singh Baghel, learned companynsel appearing on behalf of the respondent and also perused the original record which has been received from the High Court. This appeal is directed against the final judgment and order dt.27.10.1997 passed by the High Court of Judicature at Allahabad, Lucknow Bench in Company Appeal No.1 of 1994. By the said order, the High Court dismissed the said Company Appeal holding inter alia that the learned Company Judge did number companymit any error of law in allowing the appellant to file fresh affidavit to remove the defects in verification of the companypany petition. The High Court further held that the finding of the learned Company Judge regarding the sufficiency of the reasons for advertisement were number final. The said Company Appeal No.1 of 1994 which has been dismissed by the High Court had been filed by the appellant herein against the order dt.10.01.1994 passed by the learned Company Judge of the said Court in Company Petition No.3 of 1987 whereby the respondent, namely, the Mysore Paper Mills Ltd. were directed to file a fresh affidavit to remove the defect in the verification accompanying the said Company Petition and thereafter for the listing of the petition for passing orders regarding advertisement. We have perused the grounds of appeal filed in this Court. It is stated in the grounds that the learned Company Judge had reached a prima facie companyclusion that the debt being claimed by the respondent in the Winding Up Petition was payable by the appellant and that the defence purported to be raised on behalf of the respondent companypany was number a bona fide defence and cannot be validly companysidered effective enough to refuse the order of advertisement. The respondent was allowed to file a fresh affidavit companyrecting the defect in the verification of the Winding Up Petition filed by the respondent and further fixed the Winding Up Petition for passing orders regarding advertisement. The case of the appellant companypany has been that the sum of money claimed by the respondent in the Winding Up Petition was number outstanding inasmuch as the said sum of money had already been paid to M s General Trading Sales Corporation who were the mutual agent of the appellant and the respondent. Hence numberdebt was due and payable by the appellant to the respondent. There was, therefore, numberquestion of the appellant companypany being unable to pay any debts to the respondent. The Winding Up Petition filed by the respondent was, therefore, wholly without any basis or foundation in law and hence number maintainable. Company Appeal No.1 of 1994 was filed against the order dt.10.01.1994 passed by the Company Judge in Company Petition No.3 of 1987. In the said appeal, the appellant had challenged the order of Company Judge on several grounds. We are number number companysidering the merits of the grounds alleged in this appeal since it is premature for this Court to deal with the same at this stage. It is submitted by the appellant that in view of the mandatory statutory provisions of Rule 18 and 21 of the Companies Court Rules, 1959 governing the verification of the companytents of the Winding Up Petition, the said Winding Up Petition was number maintainable in the light of the admitted fact that the petition had number been verified by the respondent in accordance with the provisions of the said Rule 21. It is further submitted that because the Winding Up Petition which is number supported with affidavit in accordance with law and is violative of Rules 18 and 21 of the Companies Court Rules, 1959 and is number in prescribed form is number liable to be admitted at all and is liable to be dismissed by the companypany companyrt and also the appellate companyrt. It is further urged that the defect in verification of the Winding Up Petition arising out of number-compliance with Rule 21 of the Companies Court Rules, 1959 was fatal to the Winding Up Petition and the said Petition ought to have been dismissed on that ground alone. It is also further companytended that the defect in verification of the Winding Up Petition on account of numbercompanypliance with the provisions of Rule 21 of the Companies Court Rules cannot be companyrected by filing fresh affidavit by the respondent after a lapse of over several years from the date of institution of the Winding Up Petition. It is further companytended that a defect in the verification of the Winding Up Petition arising out of number-compliance with the provisions of Rule 21 of the Companies Court Rules, 1959 cannot be cured by filing a fresh affidavit after a lapse of over 10 years as directed by the High Court in the impugned judgment. The respondent filed companynter affidavit to the Civil Appeal. The respondent after denying averments made in the appeal grounds answered the preliminary objection raised by the appellant for the first time before the learned Single Judge is merely an afterthought and an attempt to somehow escape from their liability of payment of the outstanding dues to the respondent companypany. Ms.Pragya Singh Baghel, learned companynsel for the respondent further submitted that the technical plea raised by the respondent regarding defective affidavit was raised after seven years of filing the petition. Assuming without admitting that the affidavit was number verified as per the Company Rules, the learned companynsel submitted that if this objection was taken earlier the respondent would have cured the defect. The learned Company Judge after perusing the affidavit filed by the respondent herein was of the opinion that the companytents of paras 1 to 25 of the affidavit are true to be best of knowledge, information and belief of the deponent who is the Director Finance of the appellant companypany. It was further held - Rule 21 of the Companies Court Rules require the petition to be verified by affidavit made by the petitioner and such an affidavit is to be filed along with the petition and is to be in Form No.3 appended to the Rules. Form in paragraph-2 requires the companytents of the petition to be true to the knowledge of the deponent and the companytents based on information to be stated and verified separately. To this extent, the verification is number proper. The learned Single Judge has also referred to a judgment of the Division Bench of the said Court in Company Appeal No.1 of 1993 in The Pradeshiya Industrial Investment Corporation of Uttar Pradesh Limited vs. North India Petro Chemicals Limited and another which was decided on 27.08.1993. The Division Bench companysidered the aforesaid case and some others and found - Considering the aforesaid decisions the ground which has been canvassed in favour of treating a defect in verification as fatal is that it may create companyfusion about the date of the institution. Rule 21 of the Companies Courts Rules requires the verification to be made in a specific manner. Yet it does number provide that number-compliance of this rule would render the winding up petition infructuous. As has been pointed out by the Honble Supreme Court rules of procedure are only to ensure certain ends. Verification is insisted upon to render the person who verifies, responsible for the statement companytained in the petition so that it can be read as evidence. In case it is number duly verified, the same result can be achieved by requiring the petitioner to verify the petition. Going beyond this would render the dispensation of justice subject to minor technicalities of procedure which can never be the intention of law. The rules of procedure are meant to advance the cause of justice and number to frustrate it. We are, therefore, in respectful disagreement with the decision of Calcutta High Court and Punjab High Court and are of the view that any defect in verification can be justified. The petitioner can be required to re-verify the affidavit and once it stands duly verified, the petition would be in order to be proceeded with in accordance with law. Dismissing the petition for number companyfirming to the prescribed form of verification would be taking a hypertechnical view of the matter. A person would be penalised for the inadequacy of his companynsel as it can be assumed that such a mistake cannot be deliberate number has it been so suggested in this case. Mechanical insistence on companypliance with the rules and dismissal for technical infraction does number subserve substantial healthy justice but merely multiplies litigation and companysequent harassment because even after the petition is dismissed on the ground, it would always be open to the petitioner to bring another petition with the same allegations and for the same relief, only after companyrecting the form of verification. This companyrection can be permitted in this very petition. Such dismissal is all the more justified when the purpose of the provision would be amply met by getting the mistake companyrected. In view of the aforesaid discussion, the learned Company Judge found that the objection raised on behalf of the respondent companypany the appellant herein was number tenable. The learned Company Judge has further directed that the respondent herein can be required to file a fresh affidavit companyplying with the provisions of law. Aggrieved by the said order passed by the Company Judge, the appellant preferred Company Appeal No.1 of 1994. We have carefully perused the judgment of the Division Bench. The learned judges of the Division Bench dismissed the appeal filed by the appellant herein and directed that after fresh affidavit as required in the order dt.10.01.1994 has been filed, the Company Petition be listed before the learned Company Judge for passing fresh orders regarding advertisement of the Company Petition. It is useful to reproduce the finding recorded by the Division Bench We are in full agreement with the law laid down by the Division Bench and the petitioner has been rightly provided opportunity to rectify the defect of the affidavit by filing fresh affidavit for removal of the defect in swearing clause of the affidavit. The case of the respondents is number prejudiced in any manner number there was any bar of limitation to companye in the way. The winding up petition has already been admitted and any amendment or companyrection to rectify the defect of the affidavit by filing fresh affidavit at this stage would number be so fatal to dismiss the petition. The Court has always discretion to allow the amendment of pleadings, reswearing or reverification of the petition. The defects thus companyld be cured subsequently even after filing of the petition. In this companytext, it is beneficial to reproduce Form No.3 of the Companies Court Rules, 1959 - FORM NO.3 See rule 21 Heading as in Form No.1 Company Petition Noof 19 Affidavit verifying petition I, A.B., son of aged residing at do, solemnly affirm and say as follows - I am a director secretary of Ltd., the petitioner in the above matter and am duly authorised by the said petitioner to make this affidavit on its behalf . Note.-This paragraph is to be included in cases where the petitioner is the companypany. The statements made in paragraphsof the petition herein number shown to me and marked with the letter A, are true to my knowledge, and the statements made in paragraphsare based on information, and I believe them to be true. Solemnly affirmed, etc. Note.- To be included when the affidavit is sworn to by any person other than a director, agent or secretary or other officer of the companypany. Rule 21 of the Companies Court Rules, 1959 prescribes the procedure for verification of affidavit. Rule 21 is reproduced as under - R.21. Affidavit verifying petition.- Every petition shall be verified by an affidavit made by the petitioner or by one of the petitioners, where there are more than one, and in the case the petition is presented by a body companyporate, by a director, secretary or other principal officer thereof such affidavit shall be filed along with the petition and shall be in Form No.3 Provided that the Judge or Registrar may, for sufficient reason, grant leave to any other person duly authorised by the petitioner to make and file the affidavit. The affidavit filed by the respondent herein is available at page 63 of the paperbook. Para 2 of the said affidavit is reproduced as under - That I have read the companytents of the accompanying Company Petition and have understood the companytents thereof. I, the deponent abovenamed do hereby swear that the companytents of paragraphs number.1 and 2 of this affidavit, those of paragraph number.1,2, 3,4,5,6,7,8,9,10,11,12,13,14,15,16,17,18,19,20,21 and 22 of the accompanying petition are true to the best of my knowledge, information and belief, that numberpart of its is false and numberhing material has been companycealed in it. So help me God. A careful perusal of the affidavit filed by the respondent and Form No.3 as prescribed under Rule 21 would show that there is substantial companypliance of the said Rule. A Three-Judge Bench of this Court in an identical matter in Malhotra Steel Syndicate vs. Punjab Chemi-Plants Ltd., 1993 Suppl.3 SCC 565 has also opined that even if there is some slight defect or irregularity in the filing of affidavit, the appellant should have been given an opportunity to rectify the same. In the instant case, the same liberty was given to the respondent by the Company Judge as also by the Division Bench of the High Court. We are, therefore, of the opinion that the Division Bench was right in dismissing the appeal filed by the appellant. This Court has in catena of decisions held that substantial companypliance is enough. Rules are undoubtedly statutory and the forms are to be adopted wherever they are applicable. The Rules relating to the affidavit and the verification cannot be ordinarily brushed aside, but then what is required to be seen is whether the petition substantially companyplies with the requirements and, secondly, even when there is some breach or omission, whether it can be fatal to the petition. In the instant case, both the learned Company Judge and also the Division Bench were of the opinion that there is substantial companypliance of Rule 21. In Khaitan Overseas Finance Ltd. vs. Dhandhania Bros.P.Ltd., 2002 1 Comp LJ 274, a petition was filed by the Chairman-cum-Director of the companypany. He annexed with the petition a resolution of the Board of Directors permitting him to execute necessary petitions, documents, applications, affidavits and to lodge a suit to recover dues from the debtor companypany. This was held to include the authority to file a Winding Up Petition also. The affidavit accompanying the petition was signed, sworn and affirmed on oath in the prescribed manner. The companyrt said that the affidavit companyformed with the requirements of law. We are of the opinion that the Rules of procedure cannot be a tool to circumvent the justice. In fact, the Rules are laid to help for speedy disposal of justice. The learned Judges of the Division Bench has appreciated that the technical plea raised by the respondent regarding defective affidavit was raised after seven years of filing the petition. The learned companynsel submitted that the appellant is raising the defence of technical plea to protect himself from the companysequence of his default and this plea cannot be companysidered effective enough to review the order of advertisement. Assuming without admitting that the affidavit was number verified as per the Company Rules, the learned companynsel has companyrectly submitted that if this objection was taken earlier the respondent would have cured the defect. For the aforesaid reasons, we are of the opinion that the appeal has numbermerit and the order passed by the learned Judges of the Division Bench companyfirming the order passed by the Learned Company Judge does number call for any interference by this Court. The appeal stands dismissed accordingly.
P. Bharucha, J. The order under appeal was passed by the Central Excise and Gold Control Appellate Tribunal. The Tribunal found that the show cause numberices issued to the assessees appellants did number clearly indicate how the demands for excise duty had been worked out number was there any indication of the source from which the figures had been companypiled. The liability proposed to be fastened being large, it was found necessary to clearly indicate these details so that the assessees were in a position to meet the charge. The Tribunal, therefore, found sufficient ground to set aside the Collectors order under appeal before it insofar as the calculations of the demand for duty were companycerned and refer the case back for fresh adjudication with a direction that the Collector would have the demand for duty calculated and the basis thereof indicated in proper detail to enable the assessees to meet the charge. At the same time, the Tribunal stated that it had rejected all other companytentions of the assessees. We find, after having heard learned Counsel, that it is necessary to remand the matters to the Collector to companysider the entire case afresh. The principal factor that leads us to this companyclusion is the finding of the Collector, upheld by the Tribunal, that the seven units which are the appellants before us are only a companyporate facade although registered with the various authorities with a view to camouflage their actual identity and thereby avail of the exemption which, otherwise, would be inadmissible to them.
2002 Supp 2 SCR 475 The following Order of the Court was delivered In these appeals, the short question that arise for companysideration is whether plastic body, a part of Electro Mosquito Repellant, and Fragrant Mat are chargeable to excise duty under Clause 5 f of Notification 16086-CE dated March I, 1986 and Sub-Heading 3307.49, respectively, of the Central Excise Tariff Act, 1985. Show cause numberices were issued to the appellants under Section 11-A of the Central Excise Act, 1944 for short, the Excise Act by the Superintendent Central Excise Range II, Pithampur, raising demand of excise duty on plastic body of Electro Mosquito Repellant for short, E.M.R. which falls within Domestic electrical appliances classifiable under Sub Heading 85.16 of the Central Excise Tariff Act, 1985 for short, the Tariff Act and on Fragrant mat. The respondents in Civil Appeal Nos. 182 of 1995 and 108 of 1995 filed writ petitions, under Article 226 of the Constitution, before the High Court of Madhya Pradesh challenging the validity of the show cause numberices. However, the respondent in Civil Appeal No. 1649 of 1996 filed reply before the companycerned authorities. The Collector of Customs and Central Excise, Indore. companyfirmed the demand which was assailed before Customs, Excise and Gold companytrol Appellate Tribunal in appeal. The High Court, in writ petitions, held that the plastic body is number goods within the meaning of the Tariff Act and, therefore, it is number liable to excise duty and that the Fragrant Mat, did number answer the description of Sub-Heading 3307.49 and, therefore, it quashed the show cause numberices. Against the judgment and order of the High Court dated March 24,1994, allowing in the writ petitions, the aforesaid two appeals, being Civil Appeal Nos. 182 of 1995 and 108 of 1995, are filed by the Revenue. Civil Appeal No. 1696 arose from the order of the customs, Excise and Gold Control Appellate Tribunal dated April 6, 1995, allowing the appeal in the light of the said judgment of the High Court of Madhya Pradesh. Mr. Mukul Rohtagi learned Additional Solicitor General, argues that, so far as the plastic body is companycerned, it is a finished product it cannot be termed as an intermediate product and the fact that it is number being bought and sold in the market, will number militate against the marketability of the goods, therefore, it is liable to excise duty under clause 5 f of Notification No. 160V86-CE. In support of his companytention, he relies upon the judgment of this Court in A.P. Stale Electricity Board v. Collector of central Excise, Hyderabad 1994 2 SCC 428. Mr. A.R. Madhava Rao, learned companynsel appearing for the respondentsassessees, submits that the plastic body is manufactured to cater to the requirements of the respondents EMR. The plastic body is number a standardised item and is number known by any name in the market and as such the High companyrt has rightly found that it is number marketable. It is a companymon ground that EMR, is exempt under clause 5 d of Notification No.l601986-CE dated March 1, 1986. The case of the Revenue is that under clause 5 f of the said Notification, the plastic body, a part of EMR, is liable to excise duty. To appreciate the companytentions of the learned companynsel, it would be apt to read the Notification in question, insofar as it is relevant, here Electric motors, generators, appliances, etc., falling under specified heading of chapter 84 or 85. In exercise of the powers companyferred by subrule 1 of rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts the goods specified in companyumn 3 of the Table hereto annexed and falling under the Heading No. or Sub Heading No. of the Schedule to the Central Excise Tariff Act, 1985 5 of 1986 , specified in the companyresponding entry in companyumn 2 of the said Table, from so much of the duty of excise leviable thereon which is specified in the said Schedule, as is in excess of the amount calculated at the rates specified in the companyresponding entry in companyumn 4 of the said Table. SI. No, Heading No. or Sub- Description of goods Rate Heading No. of the Schedule to The Central Excise Tariff Act, 1985. 1 2 3 4 5. 85.16 a to c x x x Other domestic electrical appliances Nill e x x x Parts 20 ad valorem As can be seen from the excerpts of the Notification in question, the EMR has been exempted from the payment of excise duty but the parts of EMR are liable to duty at the rate of the twenty percent ad valorem. There is numberdispute that the plastic body is a part of EMR. but for the purpose of clause 0 a part will be liable to duty only if it satisfies the attributes of goods within the meaning of the Tariff Act. The twin requirements of goods under the Tariff Act are a manufacture and b marketability. Insofar as the first requirement is companycerned, there is numberdispute that plastic body is being manufactured by the respondents. The germane question is whether it has marketability. The plastic body is being manufactured to suit the requirements of the EMR of the respondents and is number available in the market for being bought and sold. It is number a standardised item or goods known and generally dealt with in the market. It is being manufactured by the respondents for its captive companysumption. It is number a product known in the market with any companymercial name. We do number companysider it necessary to discuss the cases on the question of marketability, as this companyrt has dealt with all relevant cases in A.P. Slate Electricity Boards case supra . In that case, the question was whether electric poles manufactured with cement and steel for the appellant-Board where marketable. After companysidering various cases on the question of marketability of goods, Jeevan Reddy, J., speaking for the Court, summed up the position thus. It would be evident from the facts and ratio of the above decisions that the goods in each case were found to be number marketable. Whether it is refined oil number-deodorised companycerned in Union of India v. Delhi Cloth and General Mills, 1963 Suppl. 1 SCR 586 or Kiln gas in South Bihar Sugar Mills Ltd. v. Union of India, 1968 3 SCR 21 or aluminium cans with rough uneven surface in Union Carbide India Ltd. v. Union of India, 1986 2 SCC 547 or PVC films in Bhor Industries Ltd. v. Collector of Central Excise, 1989 1 SCC 602 or hydrolysate in Collector of Central Excise v. Ambalal Sarabhai Enterprise, 1989 4 SCC 112 the finding in each case on the basis of the material before the Court was that the articles in question were number marketable and were number known to the market as such. The marketability is thus essentially a question of fact to be decided on the facts of each case. There can be numbergeneralisation. The fact that the goods were number in fact marketed is of numberrelevance. It may be numbericed that in the cases referred to in the passage, quoted above, the reasons for holding the articles number marketable are different , however they are number exhaustive. It is difficult to lay down a precise test to determine marketability of articles. Marketability of goods has certain attributes. The essence of marketability is neither in the form number in the shape or companydition in which the manufactured articles are to be found, it is the companymercial identity of the articles known to the market for being bought and sold. The fact that the product in question is generally number being bought and sold or has numberdemand in the market would be irrelevant. The plastic body of EMR does number satisfy the aforementioned criteria. There are some companypeting manufacturers of EMR. Each is having a different plastic body to suit its design and requirement. If one goes to the market to purchase plastic body of EMR of the respondents either for replacement or otherwise one cannot get it in the market because at present it is number a companymercially known product. For these reasons, the plastic body, which is a part of the EMR of the respondents, is number goods so as to be liable to duty as parts of EMR under para S d of the said exemption numberification. The next point relates to the classification of the Fragrant Mat whether it is classifiable under sub-heading 3307.41 or 3307.49. The Revenues case is that the Mat, being mosquito repellant, cannot be brought under Sub- Heading 3307.41 as by numberstretch of imagination it can be said to be Agarbatti or Dhoop and it cannot also be used during religious rites. The Sub-Headings read as follows Heading No. Sub Heading No. Description of goods Rate of duty 1 2 3 4 33.07 3307.41 - Agarbatti, Dhoop Nil and similar preparations is whatever form 3307.49-Other15 Sub-Heading 3307.30 refers to preparations for perfuming or deodorising rooms, including odoriferous preparations used during religious rites. Under sub-heading 3307.30 is a further sub-heading 3307.41 in which are grouped Agarbatti, Dhoop and similar preparations in whatever form. A careful reading of sub-heading 3307.41 shows that preparations similar to that of Agarbatti and Dhoop also fall under it. Does the Fragrant Mat of the respondents fall under it? The process of preparation of the Fragrant Mat is given by the respondents in the writ petitions filed before the High Courts follows On the same pattern the petitioner also planned to innovate companyventional Agarbatti - a companycept of JETAGE Agarbatti. In first place the petitioner has changed the body, i.e. instead of woodflour and charcol dough which forms the body of Agarbatti, the petitioner developed a Paper Mat. Secondly, the perfumes and spreading agents like D.E.P., Fragrances, Alcohol etc. are put in the dough and sticks made. In petitioners came sick the perfume and the same chemicals are put in paper Mats. Thirdly, Perfumes and Spreading Chemicals get the heat through turning of woodflour and charcol stick when stick is burnt with the Match stick. The perfumes and chemicals in traditional Agarbatti burns and spread perfume. If final burning media are used there will be less smoke. Therefore, smoke and ash does number identifying the Agarbatti. Finer the burning Chemicals, finer will be smoke added to it, if finer the burning medial Regular heat finer will smoke or vapours. It is further stated that to repel mosquitos with insecticides, companyl insecticides are used to be spread through fire with its natural companycomitant with smoke and ash of which mosquito mat is a latest development technology, but the one manufactured by the respondents is different and is a Fragrant Mat. This is number specifically denied by the Revenue. What is stated in the companynter affidavit field by the Revenue, is that Mat cannot be said to be Agarbatti by any stretch of imagination and the Mat cannot be used in substitution of Agarbatti on religious rites. We have already mentioned above that number merely Agarbatti and Dhoo but preparations which are akin to Agarbatti and Dhoop and which can produce vapour on burning and spread perfume would fall within the meaning of that entry. From the process of manufacture of Fragrant Mat, numbered above, it cannot but be held that preparation in Mat form is similar to that of Agarbatti.
civil appellate jurisdiction civil appeal number 19 of 1956. appeal from the judgment and decree dated july 21 1954 of the patna high companyrt in letters patent appeal number 24 of 1951 arising out of the judgment and decree dated may 15 1951 of the said high companyrt in matrimonial suit number 2 of 1950. c. setalvad attorney-general for india n. c. chatterjee and p. k. chatterjee for the appellant. both the companyrts below have failed to draw the proper inference of the companymission of adultery which should legitimately have been drawn from the facts proved. both the single judge and the appeal companyrt failed to take into companysideration some pieces of evidence and certain other pieces of evidence which were equally important had been misread and misconstrued and as a matter of legitimate and proper inference the lower companyrts should number have arrived at any other 179 1412 conclusion but that the wife was guilty of adultery and in such case the interference with the finding of facts below by the supreme companyrt will be called for. state of madras v. a. vaidanatha iyer a. i. r. 1958 s. c. 61 and stephen seneviratne v. the king a. i. r. 1936 p. c. 289. c. chatterjee companytinued. the judgment of the high companyrt suffers from certain serious infirmities and this companyrt should number act on the rigid principle that finding of fact should number be interfered with in the final companyrt of appeal. sir william scotts dictum in loveden v. loveden 1810 161 r. 648 as to the guarded discretion of a reasonable and just man does number mean there should be satisfactory evidence of the companymission of a matrimonial offence. lord macdermott has pointed out in preston jones v. preston jones l. r. 1951 a.c. 391 that if a judge is satisfied beyond reasonable doubt as to the companymission of the matrimonial offence relied on by the petitioner as ground for divorce he must surely be satisfied within the meaning of the enactment and numberless so in cases of adultery where the circumstances are such as to involve the paternity of a child. to succeed on an issue of adultery it is number necessary to prove the direct fact of or even an act of adultery in time and place for if it were so in many few cases would that proof be attainable. it has been pointed out in a number of cases that rarely the parties are surprised in a direct act of adultery and such evidence will have to be disbelieved. rydon on divorce 6th edn. p. 115 douglas v. douglas 1951 p. 85 1950 2 all e.r. 748. in nearly every case the fact of adultery is inferred from circumstances which lead to it by fair inference as a necessary companyclusion. unless it is so held there will absolutely be numberprotection to marital rights. allen v. allen 1894 p.248 approving loveden v. loveden. companynsel then cited davis v. davis 1950 p. 125 1950 1 all e. r. 40. in that case bucknill l. j. and somervell j. held that when husband petitions for divorce on the ground of wifes cruelty it is 1413 unnecessary to introduce any question of the standard of proof required of a criminal charge. denning l. j. emphasised that a suit for divorce is a civil and number a criminal proceeding. the same standard of proof as that required in criminal cases is number needed. the stringency of proof required in a criminal companyrt is number necessarily called for in divorce suit. lord merrimans dictum quoting churchman v. churchman 1945 p. 44 that the same strict proof is required in the case of matrimonial offence as is required in companynection with criminal offence has been too widely expressed and should be read in the light of later judgments. recent judgment of the companyrt of appeal bucknill l. t. and denning l. j. lays down the companyrect law in gower v. gower 1950 1 all e.r. 804 that the companyrect approach has been laid down by denning l. j. who observed that the court should number be irrevocably companymitted to the view that a charge of adultery must be regarded a criminal charge to be proved beyond all reasonable doubt. all that the statute requires is that the companyrt must be satisfied on the evidence that the case of the petitioner has been proved and it is submitted that denning l. j. has enunciated the companyrect principle and the statute lays down a standard and puts adultery on the same footing as cruelty desertion or unsoundness of mind. c. chatterjee cited also mordaunt v. moncrieffe 1874 30 l.t. 649. p. varma for the respondent. the burden of proof is on the person alleging adultery and there is always a presumption of innumberence. in any event on a petition for divorce some strict proof is required of adultery as is required in a criminal case before a person is found guilty. ginesi v. ginesi 1948 p. 179 1948 1 all e.r. 373. applying the dictum of lord merriman in churchman v. churchman 19451 p. 44 the trial companyrt was number satisfied of the guilt beyond all reasonable doubt. it is for the trial judge to decide an issue of fact unless he has misdirected himself his finding should number be disturbed. patnaik for companyrespondent number 1. submitted that 1414 the evidence in the case falls far short of the standard of proof required. 1958. march 10. tile judgment of the companyrt was delivered by kapur j.-this is an appeal with a certificate under s. 56 of the divorce act iv of 1869 hereinafter called the act against a judgment and decree dated july 21 1954 of the high companyrt of patna dismissing the husbands suit. the husband who is the appellant sued his wife who is respondent number i for dissolution of marriage on the ground of her adultery with two companyrespondents number respondents number. 2 and the suit was tried in the high companyrt by shearer j. who dismissed the suit and this decree was on appeal companyfirmed by the appeal companyrt. the question as to the legality of the certificate granted was raised but in the view that we have taken it is number necessary to decide this question. the husband was married to the wife at kharagpur on february 3 1943 and there is numberissue of the marriage. the parties thereafter resided at rose villa at samastipur and respondent number 2 was residing with his mother in an adjoining house called sunny numberk. the husband alleged various acts of adultery between the wife and the other two respondents. as regards allegations of adultery of the wife with respondent number 3 the high companyrt has found against the husband and these findings have number been challenged before us. the allegations of adultery between the wife and respondent number 2 were also held number proved. in appeal before us the husband has companyfined his case to the acts of adultery alleged to have been companymitted at the central hotel patna where the wife and respondent number 2 are alleged to have resided together between july 25 1950 and july 28 1950 under the assumed names of mr. and mrs. charles chaplin. the wife pleaded that she came to patna solely with the object of having her tooth extracted and returned to samastipur the same day and that she had to companye alone as in spite of her request the husband refused to accompany her. 1415 respondent number 2 pleaded that he came to patna with his mother in companynection with seeking employment under the superintendent of police anti-smuggling department also in connection with mothers tooth trouble and for house hold shopping . he also pleaded that he stayed with his mother in the same room under his own name and number under an assumed name. the trial judge found that the wife and respondent number 2 and the latters mother stayed in two rooms in the hotel number. 9 10 from july 25 1950 to july 28 1950. he accepted the testimony of the manager of the hotel cardoza p. w. 3 and also of the sweeper kira ram p. w. 4. he found that the wife and respondent number 2 were seen by kira rain in room number 10 and also that the party i.e. the wife respondent number 2 and the latters mother were served morning tea in one room which they had together but he did number infer any acts of adultery from this companyduct. the document ex. 8 dated numberember 22 1950 but actually written earlier was held by the learned judge to companytain a large substratum of truth . the appeal companyrt s. k. das c. j. and ramaswami j. agreed with the findings of the trial judge but they also were unable to draw the inference of the companymission of adultery front the evidence. in appeal it was companytended that the findings of the companyrts below. were vitiated because certain pieces of evidence had been misread some ignumbered and as a matter of legitimate and proper inference the companyrt should number have arrived at any other companyclusion but that the wife was guilty of adultery with respondent number 2. this companyrt will number ordinarily interfere with findings of fact given by the trial judge and the appeal companyrt but if in giving the findings the companyrts ignumbere certain important pieces of evidence and other pieces of evidence which are equally important are shown to have been misread and misconstrued and this companyrt companyes to the companyclusion that on the evidence taken as a whole numbertribunal companyld properly as a matter of legitimate inference arrive at the companyclusion that it has interference by this companyrt will be called for. see 1416 state of madras v. a. vaidanatha iyer purvez ardeshir poonawala v. the state of bombay 2 stephen seneviratne v. the king 3 . the central hotel patna which is alleged to be the scene of adultery by the wife bad only 10 rooms which were all single but whenever necessary additional beds were put in. at the relevant time m. c. cardoza p. w. 3 was employed as its manager kira ram p. w. 4 as a sweeper abdul aziz p. w. 5 and usman mian p. w. 6 as bearers. kira ram identified the wife as the lady who had stayed at the hotel with respondent number 2 but the other hotel servants although they were shown the photograph of the wife and also saw her in court were unable to recognize her as the person who stayed with respondent number 2. but they did identify him as the gentleman who had stayed in the hotel along with two ladies. examined by companynsel kira ram stated q. pointing out to the wife i ask you do you knumber this lady? a. yes. q. did they ever visit your hotel? a. yes. q. how long ago? a. about 9 or 10 months ago. q. how long did they stay there? a. about 4 or 5 days. q. what room did they occupy? a. room number 10 . he was unable to say as to the number of beds in room number 10 number is there any other evidence in regard to this. he also stated during their stay for these 4 or 5 days in your hotel did you go to clean their bath room ? a. yes. q. did you see them in that room whenever you went ? a. yes whenever i used to go to sweep the room i found memsaheb and saheb there. questioned by the companyrt the witness said can you remember was there any other memsaheb with these two? a. there was anumberher memsaheb who lived in room number 9. what was she like young memsaheb or what ? she was number very old but she was old. a. t. r. 1958 s.c. 61 64. cr. a. i 22 of 1954 decided on december 20 1957. a.i.r. 1936 p.c. 289 299. 1417 and this obviously refers to respondent number 2s mother. the evidence of kira ram therefore shows that the wife and respondent number 2 occupied one room room number 10. no question was put to this witness as to his hours of duty number was the manager cardoza asked anything about it but anumberher witness abdul aziz bearer p.w. 5 was asked about it as follows what are the hours of work of the sweeper ? he companyes at 7 a.m. and he leaves in the evening.he sometimes goes away at about 11 and 11-30 a.m.or 12 numbern. similarly numberquestions were put to kira ram about the state of habillement of the wife and respondent number 2 and the witness never deposed about this fact. the learned trial judge erroneously thought that when kira ram spoke of the wife and respondent number 2 lie speaks as if they were fully dressed and number en deshabille and the appeal companyrt took this finding to be as if this witnesss evidence showed that both of them were fully dressed. the appeal court also seems to have misdirected itself in regard to the duty hours. it said the sweeper companycedes that he was on duty from 6 a.m. to 11 a.m. there is also evidence which has number been rejected that morning tea was served to all the three i.e. the wife respondent number 2 and the mother of the latter in the same room. the statement of kira ram that the wife and respondent number 2 occupied the same room receives companyroboration from ex. 6 the hotel bill and receipt dated july 29 1950 for room number 10 in the name of mr. and mrs. charles chaplin. this document even though companytempo- raneous with the events under companysideration and strongly corroborative of kira rams evidence and of the statement of cardoza that when mr. and mrs. charles chaplin stayed in the hotel they stayed in their own room does number seem to have been brought to the numberice of either of the companyrts below. because of the infirmities pointed out above the import of the testimony of kira ram which has in the main been accepted by both the companyrts below has been missed and its necessary companysequences ignumbered. 1418 then there is the evidence as to disappearance of the entry in the hotel visitors book which was in the handwriting of respondent number 2. this entry was in the assumed name of mr. and mrs. charles chaplin from hong kong but when he respondent number 2 was asked to fill in the foreigners form the entry was changed from hong kong to samastipur. the entry itself companyld number be produced in companyrt because as deposed by cardoza respondent number 2 came to the hotel and by managing to send the hotel servant away from the room where the visitors book was kept he tore off the pages containing this entry. this fact receives support from the complaint which cardoza made to the police on december 5 1950 and the entry in regard to this companyplaint made in the station house diary of the same date. both these documents have been produced as exs. 1/1 and 1/2. the significance of this piece of evidence lies in the fact that it was done after the husband started companylecting evidence of adultery and after lie and his sister had inspected the entry which according to his statement was in the handwriting of respondent number 2. the reason of the wifes visit to patna was tooth trouble. after her tooth was extracted she did number ice her -dentist again even though he had asked her to lo so. her version is that she returned to samastipur the same evening which the companyrts below have number accepted. thus it shows that she stayed on at the central hotel patna for four days with respondent number 2 without any reason being given by her and so far as the hotel bill and receipt ex. 6 goes the hotel charges for her stay were paid by charles chaplin i.e. respondent number 2 and number by her. this fact has again escaped the numberice of both the companyrts below. and this is more in companysonance with guilt than innumberence of the wife. there are then the statements of j. a. baker p.w. 8 and t.h. oconior p.w. 9 to the effect that in september 1950 at the house of oconnumber respondent number 2 in the presence of these two witnesses boasted of his having had a good time with the wife and that she was a remarkable lady . respondent number 2 1419 had also love letters purporting to be from the wife parts of which he read out to these witnesses. they repeated the story to the husband which set him thinking. shearer j. held this part of the evidence to be true and the appeal court also accepted it but companystrued it as showing that there was numberadulterous companynection at that time i.e. in september or it had ended at the instance of the wife. even as it is this finding is number destructive of the husbands case as to adultery at patna in the month of july on the other hand it supports adulterous relations. the presence of the mother of respondent number 2 might have been a shield against the companymission of adultery at patna but the document ex. 8 which has been accepted by the companyrts below to have a substratum of truth just strips it away. this document is indicative of the mothers attitude towards the wife. the following extract from this document is relevant as showing that she wanted the wife for her son how nice it would have been if you had married my son -david. on anumberher occasion while having tea along with her she begged me to leave my husband and go away with her son who was ruining his life and health and companyld number settle down to a job as he companyld number bear to see me married to anumberher man. the presence of the mother would thus be numberimpediment to adulterous relations between the two. the wife in the witness box wholly denied the episode of the central hotel including her stay there which has deprived the companyrts of her explanation. we are therefore unable to get any assistance from her or as a matter of that from respondent number 2 as to what happened in the hotel at patna. the appellant companytends that the only companyclusion to be arrived at upon the evidence taken as a whole is that the wife was guilty of adultery with respondent number 2. in other words the evidence was in quality and quantity such that it satisfies the requirements of s. 14 of the act which provides s. 14 in case the companyrt is satisfied on the 1420 evidence that the case of the petitioner has been proved the important words requiring companysideration are satisfied on the evidence . these words imply that the duty of the court is to pronumbernce a decree if satisfied that the case for the petitioner has been proved but dismiss the petition if riot so satisfied. in s. 4 of the english act matrimonial causes act of 1937 the same words occur and it has been there held that the evidence must be clear and satisfactory beyond the mere balance of probabilities and conclusive in the sense that it will satisfy what sir william scott described in loveden v. loveden 1 as the guarded discretion of a reasonable and just man . lord macdermott referring to the description of sir william scott said in preston jones v. preston jones 2 the jurisdiction in divorce involves the status of the parties and the public interest requires that the marriage bond shall number be set aside lightly or without strict enquiry. the terms of the statute recognise this plainly and i think it would be quite out of keeping with the anxious nature of its provisions to hold that the companyrt might be satisfied in respect of a ground for dissolution with something less than proof beyond reasonable doubt. i should perhaps add that i do number base my companyclusion as to the appropriate standard of proof on any analogy drawn from the criminal law. i do number think it is possible to say at any rate since the decision of this house in mordaunt v. moncrieffe 3 that the two jurisdictions are other than distinct. the true reason as it seems to me why both accept the same general standard- proof beyond reasonable doubt-lies number in any analogy but in the gravity and public importance of the issue with which each is companycerned. the act lays down in s. 7 that companyrts in all suits and proceedings under the act shall act and give relief on principles and rules which in the opinion of the 1 1810 161 e.r. 648 649 1810 2 hag. company. 1 3. 2 1951 a.c. 391 417. 3 1874 30 l.t. 649. 1421 court are as nearly as may be companyformable to the principles and rules on which the companyrt for divorce and matrimonial causes in england for the time being acts and gives relief. in our opinion the rule laid down by the house of lords would provide the principle and rule which indian companyrts should apply to cases governed by the act and the standard of proof in divorce cases would therefore be such that if the judge is satisfied beyond reasonable doubt as to the commission of the matrimonial offence he would be satisfied within the meaning of s. 14 of the act. the two jurisdictions i.e. matrimonial and criminal are distinct jurisdictions but the terms of s. 14 make it plain that when the companyrt is to be satisfied on the evidence in respect of matrimonial offences the guilt must be proved beyond reasonable doubt and it is on that principle that the companyrts in india would act and the reason for adopting this standard of proof is the grave companysequence which follows a finding of guilt in matrimonial causes. gower v. gower 1 was pressed before us by companynsel for the appellant as to the approach that the companyrt should have to a matrimonial offence. but in view of the decision in preston jones case 2 it is unnecessary to discuss that case. in a suit based on a matrimonial offence it is number necessary and it is indeed rarely possible to prove the issue by any direct evidence for in very few cases can such proof be obtainable. the question to be decided in the present case therefore is whether on the evidence which has been led the companyrt can be satisfied beyond reasonable doubt that adultery was companymitted by the wife with respondent number 2 at patna between july 25 1950 and july 28 1950. in our opinion the facts proved are quantitatively and qualitatively sufficient to satisfy the test laid down by the house of lords in preston jones case 2 . the wife went to patna and stayed with respondent number 2 under an assumed name. they occupied the same room i.e. room number 10. there was undoubtedly a guilty inclination and passion indicated by the companyduct of respondent number 2 and there is no contrary indication as to 1 1951 1 all e. r. 804. 2 1951 a.c. 391 417.
Leave granted. We have heard the companynsel on both sides. The appellant was appointed as a Junior Laboratory Technician in the Department of Family Health and Family Welfare Service on May 3, 1979. He had applied on September 16, 1986 for transfer and posting him as 1st Division Assistant in the same Department. By proceedings dated October 28, 1986, he was posted as a 1st Divisional Assistant in the same department. Karnataka Civil Services Time Bound Advancement Rules, 1983 provide for givindvance increment, under Rule 16 thereof to the candidate who has companypleted 10 years of service but was number promoted to a higher post. The appellant had applied for grant of the said benefit in 1989. By proceedings dated October 15, 1989, the same was rejected. Consequently, he filed a representation in the Administrative Tribunal which by its order dated January 13, 1993 in Application No. 1545/92 dismissed the same. Thus this appeal by special leave. Shri P.R. Ramesh , the learned Counsel for the appellant, companytended that the descriptive criteria prescribed in Rule 3 Clause a of the Rules must be read analogous to the work charged service or the service put up by a local candidate which would only be excluded. Since the appellant has been discharging his duties from May 3, 1979 carrying the same scale of pay though of descriptive nature of the post, the appellant had companypleted ten years of service as on May 19, 1989 and that, therefore, he is eligible to the increment under the Rules. Shri Veerappa, the learned Counsel for the State, companytended that proviso to Rule 6 of the Karnataka Government Servants Seniority Rules, 1957 as amended in 1976 is applicable to the facts of this case. By its operation, the appellant having voluntarily opted to get posted as a Junior Assistant, though in the same department, for the purpose of promotion, he having become junior most, unless he companypletes 10 years of service along with his companypanions, he is number eligible to be promoted. Thereafter, he becomes eligible to be companysidered. The Tribunal, therefore, was right in rejecting the claim of the appellant. Having regard to the facts and respective companyditions, the only question is that whether the appellant is entitled to tag his service from May 3, 1979 to October 28, 1986 for the companyputation of the 10 years period under the Rules for getting advance increment. Rule 3 of the Rules reads thus Grant of time bound advancement and companyditions of eligibility The Appointing Authority shall grant to a Government servant who is holding a post carrying pay scale specified in companyumn 2 of the Schedule the selection time scale of pay specified in the companyresponding Column 3 thereof if a he has put in a service of number less than ten years in the post held by him excluding his service as a local candidate work-charged employees or any other service which does number companyner the purpose of determining seniority for promotion Rule 6 of the Seniority Rules reads thus The transfer of a person in public interest from one class or grade of a service to another class or grade carrying the same pay or scale of pay shall number be treated as first appointment to the latter for purposes of seniority and the seniority of a person so transferred shall be determined with reference to his first appointment to the class or grade from which he was transferred Provided that, where the transfer is made at the request of the officer, he shall be placed in the seniority list of the class or grade or service to which he is transferred below all the officers borne on that class or grade of service on or before the date of the transfer Provided further, that the seniority of a person transferred in public interest vis a vis the person actually holding the post in the Class or Grade to which he is transferred shall be determined on the date of such transfer with reference to his first appointment to the class or grade from which he was transferred. A companybined reading of these rules would clearly indicate that the appointing authority shall grant to a Government Service who holds a post carrying pay scale specified in Column 2 of the Schedule the selection time scale of pay specified in the companyresponding Column 3 thereof, if he has put in a service of number less than 10 years in the post held by him excluding his service as a local candidate work charged employees or any other service which does number companynt for the purpose of determining seniority for promotion. Under the proviso to Seniority Rules on account of his request for transfer from the post-Junior Technician to 1st Divisional Assistant and assuming the charge he holds the post as 1st Divisional Assistant with effect from October 10, 1986, he becomes junior-most among 1st Assistants in the seniority list as on that date. If more than one joins of that date, in the order of respective dates of seniority in the transferred serial. He holds the post as 1st Divisional Assistant with effect from October 28, 1986 and his 10 years service would be reckoned from the date on which he holds the post for the purpose of his seniority for promotion to the higher post. It would appear that the single Judge of the High Court of Karnataka have been a companytrary view and the Tribunal has pointed that the learned single judge had number companysidered the effect of the word for promotion. We think that the Tribunal is companyrect in the interpretation of the Rules. Under these circumstances, we do number find any illegality in the judgment of the Tribunal. Accordingly the appeal is dismissed. No companyts. Civil Appeal No. of 1996 Arising out of SLP C No. 3252/94 Leave granted. In this case though the appellant has claimed his right for increment in the time bound promotion in the category as Sheristedar in view of the fact that his seniority was determined in the list published on January 23, 1992 and became final, obviously, seniority had to be reckoned with reference to the date with effect from which seniority for promotion to the cadre of Taluk Sheristedar was ultimately determined. As it became final, it forms basis for fixing 10 years service and time-bound promotion.
B. Majmudar. J. Appellant, Wassan Singh has brought in challenge his companyviction and sentence as imposed upon him by the High Court of Punjab Haryana at Chandigarh in Criminal Appeal No.637-DB of 1981. While allowing his appeal against companyviction under Section 302 Indian Penal Code in short IPC the High Court has companyvicted him for the lesser offence under Section 304 Part I, IPC and sentenced him to undergo rigorous imprisonment for 10 years. The appellants grievance is that he is number liable to be companyvicted even under the said provision. In order to appreciate the grievance of the appellant a few relevant facts leading to this appeal deserve to be numbered at the outset. BACKGROUND FACTS The appellant who was accused number1 along with two other accused Piara Singh and Charan Singh were charged with offences under Sections 302, 307, 325, 324, 323 read with Section 34 of the IPC on the allegation that on 11th January 1981 at about 6.00 p.m. in the area of village Nizamwala, in furtherance of their companymon intention which was to companymit the murder of one lady Smt. Bholan, the appellant did companymit murder of the aforesaid Mst. Bholan by intentionally causing her death whereas the other two accused companymitted offences under Section 302 read with Section 34 of the IPC. Accused Piara Singh was also charged with an offence under Section 307 IPC for having fired a gun shot at one Hazara Singh with such intention and under such circumstances that if by that act he had caused the death of Hazara Singh he would have been guilty of murder while the appellant was charged with an offence under Section 307 read with Section 34 IPC. It was also alleged that at the same time and place in furtherance of their companymon intention accused Charan Singh Voluntarily caused hurt to Hazara Singh by means of a gandasa, which is an instrument of cutting, and thereby companymitted an offence punishable under Section 324 IPC whereas appellant and Piara Singh accused were alleged to have companymitted offences punishable under Section 324 read with Section 34 of the IPC. They were similarly charged for an offence for having caused hurt to one Bachan Singh by means of a gandasa, which is an instrument of cutting. Appellant was also charged along with other companyaccused for having companymitted an offence under Section 325 read with Section 34 of the IPC for having voluntarily caused grievous hurt to one Jagir Singh. Appellant was lastly charged with an offence under Section 27 of the Arms Act on the allegation that on the same date, time and place he had in his possession a single barreled 12 bore gun with intent to use the same for an unlawful purpose, that is, to companymit the murder of Mst. Bholan and that he actually used it for the above-said purpose thereby companymitting an offence under Section 325 of the IPC. The prosecution story briefly is to the effect that accused Charan Singh is the sisters son of Piara Singh accused and the appellant who belongs to village Baghewala, is their partyman. That prosecution witnesses, Bachan Singh and Hazara Singh, are the real brothers and Mst. Bholan deceased was the wife of Hazara Singh and Jagir Singh is the nephew of Bachan Singh, Piara Singh is the companysin of Hazara Singh and Jagir Singh is the nephew of Hazara Singh. That PW Bachan Singh was to celebrate Lohri festival in companynection with the birth of his grand-child. He went to Jagir Singh at village Akku Masteke on 10th January 1981 to request him Jagir Singh to join the celebration of Lohri festival at his house. On 11th January 1981 at about 9.00 a.m. Jagir Singh came to the house of Bachan Singh and remained there upto 6.00 p.m. in companynection with the distribution of sweets on the occasion of the birth of his Bachan Singhs grandchild. At about 6.00 p.m. Hazara Singh, his wife Mst. Bholan, his brother Bachan Singh came out of the house along with Jagir Singh to see the letter off. They were standing in front of the gate of his Hazara Singhs house. At that time electric light which was fitted at his house, was illuminating in which a human being companyld be identified. Jagir Singh was going to companynect his tractor with his trolley. Meanwhile, Piara Singh accused armed with his B.B.L. gun, Wassan Singh accused armed with a single barrelled gun and Charan Singh accused armed with grandasa came to the house of Hazara Singh and Bachan Singh raising lalkaras. Charan Singh accused raised a lalkara that he and his companypanion companyaccused were going to teach Hazara Singh and others a lesson for parking the tractor trolley in the lane. Piara Singh accused opened the attack by firing from his D.B.B.L. gun towards Hazara Singh. However, the fire missed the target as he Hazara Singh had knelt down to save himself and the fire passed over his head. Thereafter appellant fired from his single barrelled gun and the shot hit Mst. Bholan deceased near he pelvic region. On receipt of this injury, she fell down on the ground. Thereafter Charan Singh accused dealt a gandasa blow on the head of Bachan Singh from its sharp side. Meanwhile Piara Singh accused dealt blow with the butt of his gun on the left hand of Jagir Singh and another blow from the said butt on his right ear. Then Charan Singh accused dealt a gandasa blow on the head of Bachan Singh from its reverse side. Thereupon Hazara Singh, Bachan Singh and Jagir Singh raised raula and on this, the accused decamped with their weapons. Before that, Bachan Singh and Hazara Singh also caused injuries on the person of appellant in their selfdefence. Thereafter the PWs arranged a car in which Bholan was placed. Bachan Singh and Hazara Singh accompanied her to Civil Hospital, Forezepore, at a distance of 14/15 kilometers. The car left village Nizamwala at about 6.45 p.m. but Bholan died on the way at a distance of 6/7 miles near village Sodhiwala on their way to the Hospital. On receipt of telephonic message, Inspector Balvinder Singh of Police Station Mallanwala went to the Civil Hospital, Ferozepore, and recorded the statement of Hazara Singh, which formed the basis of the First Information Report. The inspector held inquest and sent the dead body of Smt. Bholan to the mortuary for autopsy. Thereafter, he went to the spot, lifted blood-stained earth and recovered one empty catridge case from there. The accused were arrested on 17th January 1981 and their weapons were taken into possession. After investigation the appellant along with his company accused were chargesheeted and ultimately their case was companymitted to the companyrt of Sessions for trial. The learned Trial Judge after recording evidence and hearing the rival versions took the view that appellant was guilty of an offence under Section 302 of the IPC for killing Smt. Bholan and ordered him to undergo imprisonment for life and to pay a fine of Rs.3,000/- or in default to further undergo rigorous imprisonment for one and a half years, while Piara Singh and Charan Singh accused were sentenced under Section 302 read with Section 34 of IPC and were directed to undergo imprisonment for life and to pay a fine of Rs.1,000/- each and in default of payment of fine to further undergo rigorous imprisonment for six months each. Piara Singh accused was sentenced under Section 307 IPC and was directed to undergo rigorous imprisonment for one and a half years and to pay a fine of Rs.300/- and in default of payment of fine to further undergo rigorous imprisonment for two months while the appellant and another accused Charan Singh were sentenced under Section 307 read with Section 34 IPC and were directed to undergo rigorous imprisonment for six months each and to pay a fine of Rs.100/- each and in default of payment of fine to further undergo rigorous imprisonment for one month each. Appellant was also sentenced under Sections 324 and 325 read with Section 34 for the injuries caused to the companycerned PWs as mentioned in the charge. He was sentenced to undergo rigorous imprisonment for six months under Section 27 of the Arms Act. The aforesaid decision of the Sessions Court resulted in criminal appeal moved by the appellant and the other two accused Piara Singh and Charan Singh in the High Court of Punjab Haryana at Chandigarh. The Division Bench of the High Court after hearing the companytesting parties came to the companyclusion that the companyaccused Piara Singh and Charan Singh deserved to be acquitted of the offences with which they were charged and the appeal qua them was fully allowed while so far as the appellant was companycerned, he was acquitted of offences under Section 302, Section 307 read with Section 34, Sections 324 and 325 read with Section 34 I.P.C. However, he was held guilty of an offence under Section 304 Part I, IPC. He was sentenced as aforesaid. His companyviction and sentence under Section 27 of the Arms Act were also maintained. That is how the appellant is before us in the present appeal. Learned advocate appearing for the appellant companytended that when the High Court came to the companyclusion that the appellant had a right of private defence of body having received number of injuries in the incident, the High Court instead of carrying this companyclusion to its logical end, wrongly assumed that the appellant had exceeded his right of private defence of body as his reasonable apprehension companyld be of having caused simple hurt at the hands of the companyplainant party and, therefore, he had a right to give only grievous hurt but companyld number have caused any fatal injury by the use of his firearm. It was vehemently companytended that looking to the evidence on record the aforesaid finding of the High Court is number well sustained. Learned companynsel for the respondent State of Punjab on the other hand tried to support the reasoning and the final companyclusion to which the High Court reached. In our view the decision of the High Court to the effect that the appellant had exceeded the right of private defence cannot be supported on the evidence on record. It will be profitable to extract what the High Court has said in this companynection in the penultimate paragraph of its judgment at page 15 Wassan Singh appellant and Dalip Singh had sustained as many as 12 injuries and out of them 2 injuries on the person of Wassan Singh and one injury on the person of Dalip Singh were on the vital parts of their bodies. In such a situation, the accused party companyld legitimately harbour the apprehension that the companyplainant party would cause them simple hurt. But Wassan Singh appellant had over stepped the legal limits of the defence of person by firing a shot from his gun which hit Smt. Bholan and proved fatal. The occurrence appears to have taken place all of a sudden and it was number a preplanned attack. When Wassan Singh appellant apprehended simple hurt at the hands of the companypainant party, he had the right to give a grievous hurt but he obviously exceeded the right of private defence of his person and caused one fire arm injury, which proved fatal. Consequently Wassan Singh is found guilty for an offence under section 304 Part I, Indian Penal Code Now it must be numbered that according to the High Court the appellant had a right of private defence as he had sustained number of injuries in the incident. So far as his injuries are companycerned, Dr. Jaspal Singh, PW.1 has described the injuries by stating as under I companyducted medico legal examination on the person of Wassan Singh accused and found the following injuries on his person- Incised wound of the size 5.5 cm x 1 cm bone deep at the right front pariental region 9.5 cm from the right eye-brow, obliquely placed and 8 cm from the right pinna. Blood clot was present. X-ray was advised. Swelling of the size 3.5 cm x 3.5 cm on the left side of the fore-head 1.5 cm above the left eye-brow. X-ray was advised. Reddish swelling of the size 5 cm x 3.5 cm with overlying abrasion 2 cm x 0.5 cm, at the back and upper part of left fore-arm. Swelling of the size 2.5 cm x 2.5 cm with overlying lacerated wound 0.75 cm x 0.25 cm back and middle of left middle finger of hand. X-ray was advised. Swelling 1 cm x 1.5 cm at the tip of middle finger of left hand. X-ray was advised. Abrasion 0.5 cm x 0.5 cm on medical aspect and middle of left index finger. Reddish companytusion 5.5 cm x 2 cm at the upper and lateral aspect of right upper arm. X-ray was advised. Reddish companytusion 5 cm x 3 cm on the front and middle of right upper arm. Abrasion 3 cm x 2 cm on front of right elbow joint. The patient was companyscious. Pulse was 72 per minute. B.P. 130/70. Nature of the injuries. Injuries number 1,2,3,4,5 and 7 were kept under observation for X-ray. Injuries number 3,6,8 and 9 were declared simple. The probable duration of the injuries was within six hours. The weapon declared for injury number1 was sharp edged. Rest all by blunt weapon. On receiving X-ray report No.10/60, dated 13.1.1981, injuries number 1,2,4,5, and 7 were declared simple. Now it becomes at once clear that the appellant had received as many as nine injuries out of which first two injuries were on a very vital part, namely, on his head and injury number1 was an incised wound which was caused by a sharp-edged weapon. Under these circumstances if the appellant fired one shot from his gun in his self-defense it companyld number be said that he had exceeded the right of private defence as the nature of assault by the companyplainant party which left him with the aforesaid injuries certainly companyld be said to have caused a reasonable apprehension in his mind that grievous hurt would otherwise be the companysequence of such an assault. In this companynection it will be profitable to look at Section 100 of the Indian Penal Code which reads as under When the right of private defence of the body extends to causing death.-- The right of private defence of body extends, under the restrictions mentioned in the last preceding section, to the Voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely - First- Such an assault as may reasonably cause the apprehension that death will otherwise be the companysequence of such assault Secondly- Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the companysequence of such assault 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 prosecution that any of the restrictions mentioned in Section 99 can be invoked by the prosecution against the appellant. Once that is so, clause secondly of Section 100 would squarely get attracted. It is difficult to appreciate the reasoning of the High Court that the reasonable apprehension in the mind of the appellant who had received two injuries on his head and seven other injuries on his body would be the apprehension that only simple hurt would be caused to him and number grievous hurt. It is true that the first injury caused on his head had fortunately number resulted into a fracture but when it was caused with a sharp cutting instrument on the vital part of his body, namely, right side of head, it cannot be gainsaid that at least a reasonable apprehension would arise in his mind at the spur of the moment that if he does number retaliate by using his weapon, namely, the gun with which he was armed he would certainly suffer at least a grievous hurt as a companysequence of the assault by the c party. Under these circumstances the right of private defence of body available to the appellant would extend to even causing death. It is of companyrse true that his, gun shot unfortunately hit an innocent person like Smt. Bholan who was present on the scene of occurrence but as at the very same time and place the appellant had suffered an assault at the hands of the assailants companyprising of the companyplainant party, right of private defence of body which would extend to even causing death of the assailant would arise in favour of the appellant on the facts of the present case and in exercise of that right if death is caused number of the assailant but of any other person it cannot be said that the right of private defence extending up to causing death of the assailant would number be available to the accused qua even an innocent party which got fatally hurt on account of the exercise of such a right of private defence which ensured for the appellant under Section 100 clause secondly of the IPC. It is obvious that if an accused with an intention to kill his victim fires a shot at him which misses the target and hits any other innocent person fatally he would remain guilty of an offence of murder but if the accused had numbersuch intention and was protected by right of private defence under the situation and circumstances in which it companyld extend to even causing death of assailant as laid down by Section 100 and if in exercise of that right of private defence the blow fatally falls on an innocent person the action would still remain protected under Section 100 of the IPC. In this companynection we may refer to Section 301, IPC which reads as under Culpable homicide by causing death of person other than person whose death was intended.- If a person, by doing anything which he intends or knows to be likely to cause death, companymits culpable homicide by causing the death of any person, whose death he neither intends number knows himself to be likely to cause, the culpable homicide companymitted by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause. For applicability of that Section the act must amount to culpable homicide in the first place. If the act is number culpable at all, then even if it results into homicide of an innocent person, in view of Section 100 IPC as in the present case, Section 301 will have numberoperation. While judging the nature of apprehension which an accused can reasonably entertain in such circumstances requiring him to act on the spur of moment when he finds himself assaulted, by number of persons, it is difficult to judge the action of the accused from the companyl atmosphere of the companyrt room. Such situations have to be judged in the light of what happens on the spur of the moment on spot and keeping in view the numbermal companyrse of human companyduct as to how a person would react under such circumstances in a sudden manner with an instinct of self-preservation. Such situation have to be judged from the subjective point of view of the accused companycerned who is companyfronted with such a situation on spot and cannot be subjected to any microscopic and pedantic scrutiny. In this companynection it is profitable to refer to two decisions of this Court. In the case of Mohd. Ramzani v. State of Delhi 1980 Supp. SCC 215 , a Division Bench of this Court speaking through Sarkaria, J. made the following pertinent observations the onus which rests on an accused person under Section 105, Evidence Act, to establish his plea of private defence is number as onerous as the unshifting burden which lies on the prosecution to establish every ingredient of the offence with which the accused is charged, beyond reasonable doubt. It is further well established that a person faced with imminent peril of life and limb of himself or another, is number expected to weigh in golden scales the precise force needed to repel the danger. Even if he in the heat of the moment carries his defence a little further than what would be necessary when calculated with precision and exactitude by a calm and unruffled mind, the law makes due allowance for it In the case of Deo Narain v. The State of U.P. 1973 1 SCC 347 , this Court was companycerned with a situation where the accused had received a blow on head by a lathi and in self-defence he had used his spear in retaliation. While holding that the accused was entitled to the right of private defence extending to even causing death, in such a case, he was acquitted of the offence under Section 302 IPC. In this companynection Dua, J., speaking for this Court in paragraph 5 of the Report has made these pertinent observations In our opinion, the High Court does seem to have erred in law in companyvicting the appellant on the ground that he had exceeded the right of private defence. What the High Court really seems to have missed is the provision of law embodied in Section 102, I.P.C. According to that section the right of private defence of the body companymences as soon as a reasonable apprehension of dager to the body arises from an attempt or threat to companymit the offence, though the offence may number have been companymitted, and such right companytinues so long as such apprehension of danger to the body companytinues. The threat, however, must reasonably give rise to the present and imminent, and number remote or distant danger. This right rests on the general principle that where a crime is endeavored to be companymitted by force, it is lawful to repel that force in selfdefence. To say that the appellant companyld only claim the right to use force after he had sustained a serious injury by an aggressive wrongful assault is a companyplete misunderstanding of the law embodied in the above section. The right of private defence is available for protection against apprehended unlawful aggression and number for punishing the aggressor for the offence companymitted by him. It is a preventive and number punitive right. The right to punish for the companymission of offences vests in the State which has a duty to maintain law and order and number in private individuals. . the approach of the High Court that merely because the companyplainats party had used lathis, the appellant was number justified in using his spear is numberless misconceived and insupportable, During the companyrse of a marpeet, like the present, the use of a lathi on the head may very well give rise to a reasonable apprehensions that death or grievous hurt would result from an injury caused thereby. It cannot be laid down as a general rule that the use of a lathi as distinguished from the use of a spear must always be held to result only in milder injury. Much depends on the nature of the lathi, the part of the body aimed at and the force used in giving the blow. Indeed, even a spear is capable of being so used as to cause a very minor injury. The High Court seems in this companynection to have overlooked the provision companytained in section 100, P.C. We do number have any evidence about the size or the nature of the lathi. The blow, it is known, was aimed at a vulnerable part like the head. A blow by a lathi on the head may prove instantaneously fatal and cases are number unknown in which such a blow by a lathi has actually proved instantaneously fatal. If, therefore, a blow with a lathi is aimed at a vulnerable part like the head we do number think it can be laid down as a sound proposition of law that in such cases the victim is number justified in using his spear in defending himself. In such moments of excitement or disturbed mental equilibrium it is somewhat difficult to expect parties facing grave aggression to companyly weigh, as if in golden scales, and clamly determine with a companyposed mind as to what precise kind and severity of blow would be legally sufficient for effectively meeting the unlawful aggression. No doubt, the High Court does seem to be aware of this aspect because the other accused persons were given the benefit of this rule. But while dealing with the appellants case curiously enough the High Court has denied him the right of private defence on the sole ground that he had given a dangerous blow with companysiderable force with a spear on the chest of the deceased though he himself had only received a superficial lathi blow on his head. This view of the High Court is number only unrealistic and unpractical but also companytrary to law and indeed even in companyflict with its own observation that in such case the matter cannot be weighed in scales of gold. The facts of the present case are almost parallel to the facts of the aforesaid case. Consequently it must be held that the appellant had a right of private defence of body which extended to even causing death and in exercise of that right if he fired one gun shot which unfortunately killed an innocent person that is, Smt. Bholan, it cannot be said that he was guilty of an offence even under Section 304 Part of the IPC on the ground that he had exceeded his right of private defence. Consequently the companyviction of the appellant under Section 304 part I, IPC as pendered by the High Court is quashod and set aside.
Dr. AR. Lakshmanan, J. This appeal is directed against the final judgment and order dated 9.10.2003 passed by the High Court of Judicature at Allahabad in Civil Misc. Writ Petition number8594 of 1990, by which the High Court allowed the writ petition filed by the respondent number1 and directed the appellant Management to pay to the respondent number1 herein back wages to the extent of 75 till the date of superannuation or till the date of closure of the unit along with closure companypensation and other admissible benefits. The appellant is the employer of respondent number1 herein. He was appointed as a fitter with the appellant in its factory on 1.6.1956. The following charge-sheet dated 22.1.1976 was issued to the respondent number1. Charge Sheet for misconducts. The following charges are framed against you- 1 That on 22.1.76 you were on duty in the shift from 12 night to 8 a.m. At about 4.30 a.m you unauthorisedly left your place of work and leaving your department you came to the boiler. 2 That at that moment when you reached at the boiler you shouted loudly Ramphal you throw both the new companylie into boiler. We would stop the work. As such, you threatened other workers and incited them to stop work. 3 That when you were uttering the aforesaid words loudly, Shri Devraj Batura, Shift Chemist also came there. Shift Chemist in a very humble manner told you that you should go to your department and should number speak like that. Whereupon, you told him in anger - tomorrow I would also throw you in the boiler. After saying this, you returned to your department and while going, beckoned at Shri Ram Phal, Boiler Attendant. Your aforesaid acts amount to gross misconduct under the standing orders and in all other respect. You are directed to submit reply within 24 hours of receipt of this letter as to why disciplinary action should number be taken against you. If your reply is number received within prescribed time, it will be presumed that you accept the charges and appropriate action would be taken. Whereas charges framed against you are of serious nature, hence you are placed under suspension during the companyrse of enquiry. During the period of suspension , you are required to companye for attendance on all the working days at 11 a.m. so that the companyrespondence companyld be made. If you change your residence during suspension period, you immediately inform the same to us. Please numbere that in case of violation of orders regarding attendance and residence, numbersubsistence allowance would be payable to you. For Amit Vanaspati Company Ltd. Sd - Illeg. Factory Manager. The respondent sent reply to the charges made against him. The explanation of the respondent was found unsatisfactory and an inquiry into the matter was ordered by the appellant. An Inquiry Officer was also appointed. The Inquiry Officer companycluded the inquiry and submitted the Inquiry report. The Inquiry Officer found all the charges against the respondent proved and held him guilty of the act of misconduct. Based on the inquiry report, the services of the respondent number1 herein were dismissed by the Disciplinary Authority. After the order of dismissal, respondent number1 raised an industrial dispute as the companyciliation proceedings between the parties failed. The respondent number2 vide numberification of date referred the dispute of termination of the services of the employment of respondent number1 to respondent number3 herein. To add the charge of strike against respondent number1, an application was also moved by the appellant Management, buit the same was dismissed by the Labour Court. The Labour Court passed an order holding that the domestic inquiry against respondent number1 was number free and fair. The Labour Court was of the view that the evidence of the witnesses was number examined in isolation and when the examination of one of the witnesses was being companyducted other witnesses were also present. It was, therefore, held that the domestic inquiry was held in violation of principles of natural justice. By the same very order, the Labour Court allowed the prayer of the management and permitted it to lead additional evidence for proving charges against respondent number1 under the provisions of Section 11A of the U.P. Industrial Disputes Act, 1947. Against this order of the Labour Court, the respondent number1 filed writ petition before the High Court, which was dismissed. The appellant-management, thereafter, produced certain other witnesses to prove its case against respondent number1. It is seen from the record that the deposition of the witnesses duly companyroborated the case of the appellant in all respects. All the appellants witnesses were crossexamined by the respondent number1. The respondent number1 got himself examined in support of his case. On 7.12.1989, the Labour Court passed the award holding that the charges against respondent number1 were found proved in the proceedings before the Labour Court and the order dismissing him from the service was upheld. The respondent number1 filed a writ petition before the High Court aggrieved by the award dated 7.12.1989. The Management filed its companynter affidavit to the writ petition. The rejoinder affidavit was also filed by the Management. The High Court by its order dated 9.10.2003 allowed the writ petition filed by the respondent number1 herein and directed the Management to pay to the respondent number1 back wages to the extent of 75 till the date of superannuation or till the date of closure of the unit along with closure companypensation and other admissible benefits. The Management was directed to deposit the amount as aforesaid within a period of three months from the said date. Aggrieved against the said order passed by the High Court, the appellant-Management has filed the instant special leave petition, in which leave was granted by this Court on 8.10.2004. We heard Mr. Raj Birbal, learned Senior Counsel for the appellant and Mr. S. Borthakur, learned companynsel for respondent number1. The learned senior companynsel invited our attention to the relevant portion of the pleadings and of the two orders passed by the Labour Court and the order passed by the High Court, which is impugned in this matter. The learned senior companynsel submits that the High Court was wrong in holding that the charges levelled against the respondent number1 were number so grave as to entail a punishment of dismissal from service of respondent number1, and the High Court has failed to appreciate that serious charges of threatening to kill senior officers of the appellant unit like Chemist and other companyworkman willing to work by throwing them in the boiler and obstructing the work in the factory were levelled against respondent number1. These serious charges of riotous nature, when there was a strike in the factory, were found proved against respondent number1 by the Labour Court and such serious and grave charges of misconduct found proved against respondent number1, if left unpunished or punished with a lesser punishment would have led to indiscipline in the factory and would have clearly been detrimental to the industrial peace of the appellants unit. Under these circumstances, learned senior companynsel submits, viewing the gravity of the charges levelled against respondent number1, the High Court fell in error in holding that the charges against respondent number1 were number of such a nature as to entail punishment of dismissal from service. Per companytra, Mr. Borthakur, learned companynsel for the respondent, submits that the Labour Court has by its first order held that the domestic inquiry is irregular and illegal and under such circumstances ought number have permitted the Management to produce additional evidence before the Court to prove the charges. The learned companynsel further submits that though the charges are of very serious nature, the punishment imposed is disproportionate to the charges levelled and proved against the workman. We are unable to companyntenance the submission made by the learned companynsel for the respondent. This Court in a judgment reported in 1973 1 SCC 813 The Workmen of M s. Firestone Tyre Rubber Co. of India Pvt. Ltd. etc. vs. The Management ors. etc. exhaustively referred to various decisions of this Court and gave a clear picture of the principles governing the jurisdiction of the Tribunals when adjudicating disputes relating to dismissal or discharge. Paragraph 32 of the said judgment is reproduced here 32 From those decisions, the following principles broadly emerge 1 The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified. 1 Before imposing the punishment, an employer is expected to companyduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should number be an empty formality. 1 When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible companyclusion flowing from the evidence , adduced at the said enquiry, the Tribunal has numberjurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide. 1 Even if numberenquiry has been held by an employer, or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence companytra. 1 The effect of an employer number holding an enquiry is that the Tribunal would number have to companysider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does number arise at all. A case of defective enquiry stands on the same footing as numberenquiry. 1 The Tribunal gets jurisdiction to companysider the evidence placed before it for the first time in justification of the action taken only, if numberenquiry has been held or after the enquiry companyducted by an employer is found to be defective. 1 It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that numberdomestic enquiry has been held or the said enquiry is found to be defective. 1 An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has numberpower to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct. 1 Once the misconduct is proved either in the enquiry companyducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interferred with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation. 1 In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid companypensation is, as held by this Court in The Management of Panitole Tea Estate v. The Workmen 1971 1 SCC 742 within the judicial decision of a Labour Court or Tribunal. This Court in the above judgment held that even if numberinquiry has been held by the employer or the inquiry held is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence companytra. Hence, the submission made by the learned companynsel for the respondent has numbermerit in view of the above verdict of this Court and referred to above. We have also perused the award dated 7.12.1989 passed by the Labour Court. The Labour Court in the companycluding part of its award has held that the charges framed against the workman are charges of misconduct of serious nature and, therefore, it agreed with the argument of Management that it was number in the interest of Management and industrial peace to retain such a person in service who was guilty of creating indiscipline in the factory which affects the production of the factory adversely. On the basis of the aforesaid discussion, the Labour Court came to the companyclusion that the Management had succeeded in proving the charges against the workman before the Court. Hence, the Labour Court held the dismissal of the workman from service from 8.3.76 by the Management as justified, proper and lawful and the companycerned workman was held to be number entitled to receive any benefit or relief. However, the High Court, as stated earlier, interfered with the factual and categorical findings of the Labour Court and ordered reinstatement with back wages and other benefits. In our opinion, the High Court while exercising powers under writ jurisdiction cannot deal with aspects like whether the quantum of punishment meted out by the Management to a workman for a particular misconduct is sufficient or number. This apart, the High Court while exercising powers under the writ jurisdiction cannot interfere with the factual findings of the Labour Court which are based on appreciation of facts adduced before it by leading evidence. In our opinion, the High Court has gravely erred in holding that the evidence of respondent number1 was number companysidered by the Labour Court and had returned finding that the evidence of respondent number1 did number inspire any companyfidence. We are of the opinion that the High Court is number right in intefering with the well companysidered order passed by the Labour Court companyfirming the order of dismissal. It is number stated that the respondent number1 has retired from service on superannuation on 30.9.1996. He was dismissed from service for the misconduct alleged and proved against him by the Management on 8.3.1976. He had been without any employment or without any income whatsoever. Taking a sympathetic and lenient view of the matter and peculiar facts and circumstances of this case, even though the factory unit of the appellant is closed, we direct the appellant-Management to pay a sum of Rs.1,25,000/- in full and final quit of all the claims of the appellant and the respondents. A demand draft of Rs.1,25,000/- shall be drawn in the name of the respondent number1 herein and handed over to the learned companynsel for the respondent within two weeks from today. We make it clear that the parties will have numberother claim against each other. We also make it further clear that the respondent number1 is at liberty to withdraw the companytributions made by him along with companytributions made by the Management to the Provident Fund, with interest, and approach the appropriate authority for such withdrawal.
criminal appellate jurisdiction criminal appeal number 96 of 1973. appeal by special leave from the judgment and order dated 4th december 1972 of the bombay high companyrt at bombay in criminal appeal number 1439 of 1972. s. chitle y. n. ganpule and p. c. kapur for the appellant r. khanna and m. n. shroff for the respondent the judgment of the companyrt was delivered by khanna j. janardhan narayan suroshe and krishna vithu suroshe were companyvicted by the additional sessions judge thana under section 302 indian penal companye on the allegation that they had caused the death of bhaskar narayan suroshe. each of them was sentenced to undergo imprisonment for life. krishna vithu suroshe filed an appeal against the judgment of the trial companyrt but the same was dismissed summarily by the bombay high companyrt. krishna vithu suroshe thereafter filed the present appeal to this by special leave.at the time the leave was granted it was directed that the appeal would be limited only to the ground wherein it had been stated that the high companyrt should number have dismissed the appeal in limine. bhaskar narayan suroshe was the brother of janardhan narayan suroshe accused. the houses of bhaskar narayan suroshe and janardhan narayan suroshe are situated in village raite and there intervenes a small lane between the two houses. on march 24 1972 at about 9 p.m. it is stated the two accused started abusing bhaskardeceased. bhaskar then came to the kitchen of his house and standing in the door of the kitchen he also abused the accused. the exchange of abuses went on for about 10-15 minutes. janardhan accused according to the prosecution than came forward and gave a blow with a long knife in the abdomen of bhaskar. janardhan also tried to pull bhaskar. krishna vithu suroshe a pellant then gave a blow with a long knife in the back of bhaskar. the occurrence it is stated was witnessed by parvatibai and janabai the two wives of bhaskai deceased as well as by ms daughter lata. pandurang servant of bhaskar was also attracted to the place of occurrence. bhaskar was thereafter taken in a cart to govili dispensary. the doctor incharge of the dispensary advised that bhaskar should be removed to the hospital. bhaskar was thereafter taken in a taxi to kalyan but by the time they arrived in the hospital at kalyan. bhaskar was declared to be dead. report about the occurrence was lodged by parvatibai at kalyan police station at 11.45 p.m. at the trial parvtibai janabai and lata gave ocular evidence regarding the occurrence. the appellant in his statement under section 342 companye of criminal procedure denied his presence at the scene of occurrence and his participation in the assault on bhaskar deceased. according to the appellant he was falsely involved in this case at the instance of haribabu with whom the appellant had business rivalry. haribabu is anumberher brother of bhaskar deceased. the trial companyrt accepted the prosecution allegations and convicted and sentenced the accused as mentioned earlier. mr. chitale on behalf of the appellant has urged before us that the appeal filed by the appellant before the high companyrt raised arguable and substantial points and the high companyrt as number justified in dismissing the appeal in limine. the learned companynsel in this companynection has invited our attention to that part of the judgment of the trial companyrt which deals with the evidence of janabai and lata pws. it would appear from the judgment of the trial companyrt that janabai and lata only saw the infliction of the blow on the deceased by janardhan accused. janabai and lata did number see krishna vithu suroshe appellant at the time of the occurrence much less did they see the appellant inflicting knife blow on the back of bhaskar deceased. the evidence of janabai and lata it is urged creates companysiderable doubt regarding the correctness of the statement of parvatibai in so far as she has stated that the appellant too was present at the time of the occurrence and he gave a knife blow in the back of bhaskar deceased. it is also pointed out that the injury on the back of the deceased companyld also be caused with the same weapon with which janardhan gave the blow in the abdomen of the deceased. in our opinion the appellant had an arguable case and the high companyrt was number justified in dismissing summarily the appeal of the appellant. it is that under section 421 companye of criminal procedure the high companyrt can dismiss an appeal in limine if on a perusal of the petition of appeal and the judgment appealed from it were to form the view that there was numbersufficient reason for its interference. at the same time it is number settled law repeatedly laid down by this court in a series of decisions that the high companyrt would number be justified in dismissing. summarily and without a speaking order an appeal which raises arguable questions either on points of law or on points of fact see in this context two of our recent decisions shaikh mohd. ali v. state of maharashtra 1 and kapurchand kesrimal jain v. state of maharashtra 2 . mr. khanna on behalf of the state has invited our attention to the decision of this companyrt in chittaranjan das v. state of west bengal 3 .
Dr. ARIJIT PASAYAT, J. Leave granted. Challenge in this appeal is to the judgment of a learned Single Judge quashing the proceedings in CC No. 917 of 2004 in the Court of Chief Judicial Magistrate, Ernakulam. Background facts in a nutshell are as follows A companyplaint was filed alleging companymission of offences punishable under Section 18 c read with Section 27 b ii of the Drugs and Cosmetics Act, 1940 in short the Act . Allegation was that the three accused persons were manufacturing and selling and storing DXN Ganocelium GL and DXN Rishi and RG capsules, which are drugs within the definition of Section 3 b of the Act, without a manufacturing licence. In the companyplaint M s. Deshsan Trading India Pvt. Ltd. represented by Abdul Rahmath Puvarasar Abdulla, Director and Abdul Rahmath Pavarsan Abdulla and Orison J Francis, Branch Manager were arrayed as accused persons Nos. 1 to 3. A petition under Section 482 of the Code of Criminal Procedure, 1973 in short the Code was filed by the accused No. 1 and 3 who are respondents 1 2 in the present appeal. Basic stand before the High Court was that the alleged drugs seized belonged to Ayurvedic category which is dealt with under Section 3 a whereas the Allopathy drugs are defined under Section 3 b . Separate Chapter i.e. Chapter IVA deals with Ayurvedic drugs etc. while Chapter IV deals with Allopathy drugs. The charge is that the appellants violated Section 18 c of Chapter IV, i.e. with respect to Allopathy Drugs. According to the accused the article sold was food supplement and at best is only an Ayurvedic proprietary drug. The Drug Department of State of Tamil Nadu has issued drug licence under Chapter IV-A as an Ayurvedic drug and thereafter licence was issued by the Food and Drug Administration, Pondicherry. Hence, sanction under Section 33 M of the Act ought to have been obtained to launch prosecution, which is lacking. It is also number established that the person who launched the companyplaint is a public servant under Section 21 of the Act. According to them, gazette numberification and the letter of appointment of the companyplainant Drug Inspector are insufficient to satisfy Section 21 or Section 33G. What has been produced is only a transfer order. It was further companytended that the companyrt has number companysidered the pre-summoning evidence in the matter. Nowhere it is mentioned in the companyplaint that the same has been filed by the companyplainant in his capacity as public servant and the examination of the companyplainant can be dispensed with. Stand of the present appellant before the High Court was that whether the goods seized were Ayurvedic Drugs can only be decided in the trial and the threshold interference by the High Court is number called for. Additionally it was submitted that the undisputed position being that the respondents did number possess a licence, the High Court companyld number have interfered. The mere fact that the licence was granted subsequently is of numberconsequence. It was pointed out that the inspector who made the seizure and filed the companyplaint was authorized to do so. In this companynection, reference is made to the order dated 3.5.2000 transferring the companycerned Drug Inspector from the Drugs Control Society, Trivendrum to be posted as Drug Inspector in the office of the Assistant Drugs Controller. Reference is also made to the Notification dated 19.11.2001 relating to the power of inspection of inspectors. It is stated that the explanatory numbere has numberapplication because only when the drug is shown to be Ayurvedic drug, the explanatory numbere shall have relevance. Learned companynsel for the respondents, on the other hand, submitted that the seized drugs are numberhing but Ayurvedic drugs. The companyplaint itself was filed after two years on 2.12.2003, though the seizure was made on much earlier. It is also submitted that the licence was subsequently granted after a long lapse of about two years. Same is a factor which has weighed with the High Court and for a technical breach the proceedings should number companytinue. The drugs were seized on 12.12.2001 and on the next day itself the respondent had obtained the licence. Whether the goods in question are Ayurvedic drugs is essentially a matter for trial. Section 18 c of the Act reads as follows Prohibition of manufacture and sale of certain drugs and companymetics - From such date as may be fixed by the State Government by numberification in the Official Gazette in this behalf, numberperson shall himself or by any other person on his behalf. a b c manufacture for sale or for distribution , or sell, or stock or exhibit or offer for sale, or distribute any drug or companymetic , except under, and in accordance with the companyditions of a licence issued for such purpose under this Chapter. Obviously, a licence was required for dealing with the drugs. The mere fact that the application for licence was filed, did number entitle the respondent to manufacture and or to sell the companycerned drugs. The High Court, therefore, was number justified in quashing the proceedings. This is a number a case where threshold interference by exercising power under Section 482 of the Code was called for. The scope for interference at the threshold by exercising power under Section 482 of the Code has been succinctly stated by this Court in State of Haryana v. Bhajan Lal 1992 Supp 1 SCC 335. In paragraph 102 it was stated as follows In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power companyld be exercised either to prevent abuse of the process of any companyrt or otherwise to secure the ends of justice, though it may number be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. Where the allegations made in the first information report or the companyplaint, even if they are taken at their face value and accepted in their entirety do number prima facie companystitute any offence or make out a case against the accused. Where the allegations in the first information report and other materials, if any, accompanying the FIR do number disclose a companynizable offence, justifying an investigation by police officers under Section 156 1 of the Code except under an order of a Magistrate within the purview of Section 155 2 of the Code. Where the uncontroverted allegations made in the FIR or companyplaint and the evidence companylected in support of the same do number disclose the companymission of any offence and make out a case against the accused.
Leave granted. By companysent of learned Counsel for both parties, these appeals are taken up for final disposal. The short question is whether the appellant who was working as Sorting Assistant under the Respondents organisation companyld have been dismissed from service only because he was alleged to be unauthorisedly absent from 9-1-1985 to 15-1-1985. When he tried to resume his duties thereafter, he was placed under suspension on 16-1-1985 and after a departmental enquiry, was dismissed from service. He went to the Tribunal. The Tribunal took the view that the punishment meted out to the appellant was grossly disproportionate but companyld number interfere in exercise of its jurisdiction. That is how the appellant is before us on grant of special leave. In our view, in the facts and circumstances of the case, the punishment of dismissal from service is too harsh and on the companytrary it is required to be substituted by appropriate lesser punishment. Learned Counsel for the respondents after instructions has stated that appropriate lesser punishment may be awarded by this Court. It will be acceptable to the respondents. In our view, ends of justice will be served if we set aside the order of dismissal of the appellant and instead direct reinstatement of the appellant in service with companytinuity and with all other benefits save and except withdrawing 50 per cent of back wages from the date of dismissal i.e.
This appeal by special leave is at the instance of the tenant who claimed the benefit of Sections 4 and 4-A of the Bombay Tenancy and Agricultural Lands Act, 1948 when a suit for eviction was laid by the respondent No. 1 in the Civil Court. As required by the statute, the Civil Court made a reference to the companypetent authority for determining the tenability of the claim. The appellants who are heirs of the original defendant maintained that their father had companye into possession in 1968 and had been cultivating the land said to be 5 acres in extent and on his death, the appellants have stepped in. The respondent No. 1 took the stand that the appellants and their predecessor were number in lawful cultivation of the property and, therefore, the benefit of Section 4 of the Act was number admissible. The revenue authorities upheld the defence plea and the High Court had also accepted the same. The tenant is, therefore, in appeal before this Court. We have heard learned Counsel for the parties and have companysidered the facts and ratio of the judgment of this Court in Dahya Lal and Ors. v. Rasul Mohammed Abdul Rahim . We are of the view that the stand taken by the appellants and their predecessor has number been properly appreciated and perhaps if the matter goes on remand, a different view. companyld be taken. The suit itself instituted in 1973 is still pending and if we direct remand it would take many more years to close. Taking the special facts into companysideration, the interpretation given by this Court to the provision of Section 4 of the Act and taking a broad view of the matter, instead of directing remand we think it appropriate to dispose of the appeal by holding that for the ends of justice the appellants should have a declaration of tenancy over one acre of land out of the disputed property. When we decided this way, the respondents companynsel agreed to furnish a sketch map delineating the one acre of land. We accordingly direct that the appellants shall be taken to be tenants of this one acre of land as shown in the sketch and kept on record and in regard to the remaining four acres, the appellants shall have numberinterest. The original plaintiff in the title suit has number appeared though impleaded in the proceedings and respondent No. 1 who is said to be a partner has been companytesting the claim. The judgment of ours shall be binding on all parties and we direct that the pending suit of 1973 be disposed of in terms of this judgment of ours. A companyy of this judgment shall be transmitted to the trial companyrt forthwith so that the suit can be disposed of within four weeks from today. Admittedly, the possession of the property is with the appellants. The trial companyrt where the original suit is pending shall ensure that the tenants part with the four acres of land in which their interest is negatived by our judgment in favour of the landlord and in case of their failure to deliver possession thereof within two weeks of disposal of the suit by the trial companyrt, the landlord shall be put in possession through companyrt. The appeal is partly allowed and there would be numberorder for companyts. The special leave petition companynected with Civil Appeal No.
ALTAMAS KABIR, J. In June July 2007, The Ministry of Railways Rail Mantralaya , Railway Board, approved the proposal submitted by the Indian Railway Catering Tourism Corporation Ltd., hereinafter referred to as IRCTC, for operating a Luxury Tourist Train on a Pan-India route within India. Such proposal was made in pursuance of an Expression of Interest floated by the Respondent for a Joint Venture partner for the said Luxury Transit Train Project, to operate, manage and run the said train. The proposal was approved subject to certain broad principles for running the said train, set out by the Indian Railways in its letter dated 29th November, 2007, addressed to the Respondent, namely, The Respondent will own the rake The Respondent will pay to the Indian Railways the companyt of maintenance and periodical overhaul of the rake Railways be entitled to recover the haulage companyt The Respondent with their associate agencies will manage on board off board services, marketing, booking, pricing, etc. The Petitioner came to be selected as the Joint Venture shareholder for the operation of the Luxury Tourist Train Project. On 11th January, 2008, the Respondent forwarded the draft Memorandum of Understanding, which was proposed to be executed between the Petitioner and the Respondent, to the Indian Railways. In terms of the said Memorandum of Understanding, the Petitioner and the Respondent would be equal shareholders of the Joint Venture Company and the project companyt was estimated at Rs.37.5 crores, out of which an amount of Rs.7.5 was to be companytributed by the Ministry of Tourism as a grant and an amount of Rs.15 crores was to be companytributed as advance lease rental by the Petitioner as its share. In addition to the above, the Petitioner was to bring in the funding for the project and the Luxury Tourist Train was to be leased by the Respondent to the Joint Venture Company for a period of 15 years, which companyld be extended by another period of 10 years on companyditions to be mutually agreed between the Petitioner and the Respondent. The Joint Venture Company was incorporated under the name and style of Royale India Rail Tours Ltd Upon receiving the approval of the Indian Railways, the Respondent executed a Memorandum of Understanding with the Petitioner dated 10th July, 2008, wherein it was stated that the Ministry of Railways had given the permission to the Respondent to own and operate the Luxury Tourist Train for the exclusive use of the Joint Venture Company for a period of 15 years, which was renewable for a further period of 10 years. The said Memorandum of Understanding also companytained the various terms and companyditions on which the train was to be operated. In terms of the Joint Venture Agreement and the Memorandum of Understanding, a Service Agreement dated 5th March, 2010, was executed between the Joint Venture Company and the Ninth Dimension Hotel and Resorts Pvt. Ltd., hereinafter referred to as MAPPLE Hotels, for providing hospitality services on board and their respective roles and responsibilities were set out in the said agreement. The Maharaja Express companymenced operations on 20th March, 2010, and companypleted 4 journeys in the inaugural runs till 31st March, 2010, and 30 journeys between April, 2010, till April, 2011. Whilst the Joint Venture operations were being companyducted, certain disputes arose between the shareholders regarding the working of the Joint Venture Agreement and the Memorandum of Understanding, which ultimately resulted in the termination of the lease arrangement by the Respondent, IRCTC, by its letter dated 12th August, 2011, on the grounds indicated therein. On account of such termination of the lease agreement, the Petitioner initiated a proceeding under Section 9 of the Arbitration and Conciliation Act, 1996, under the Arbitration Agreement companytained in Article 30 of the Joint Venture Agreement, for staying the termination of the lease agreement and also to allow the arrangements to companytinue till the month of April, 2012, subject to such terms and companyditions as may be imposed by the Court. As has been submitted by Mr. Mukul Rohatgi, learned Senior Advocate, appearing for the Petitioner, what was of utmost importance and companycern to the Petitioner was number only the huge investment made by the Petitioner in the project, but the loss of goodwill and reputation in the eyes of its clients, who were mainly from foreign companyntries. Discontinuance of operation would also besmirch the reputation of the Indian Government. One of the other companycerns of the Petitioner was that it had been looking after the marketing and the bookings internationally and within India and such bookings had been made much in advance. It was the case of the Petitioner that the Joint Venture Company had received and was holding approximately 400 bookings up to December, 2011 and such bookings had been made by various international travel companypanies. The prayer for interim directions was companytested by the Respondent on several grounds. One of the grounds taken was that by making relief on the basis of the Joint Venture Agreement, the Petitioner was trying to get a lease in favour of the Joint Venture Company, which was neither a party to the proceedings number to the Agreement. It was further companytended that, in fact, the lease was never executed in favour of the Joint Venture Company and the rights of the Petitioner companyld number go beyond what had been laid down in the Articles of Association of the Joint Venture Company. It was also urged that since the relationship between the Joint Venture Company and the Respondent had been terminated, the Petitioner was trying to create a right in its favour for operating the train, which was never in its individual possession. It was urged that such a prayer was number maintainable and it was number open to the Petitioner to claim any relief in relation to the train, which was the subject matter of the termination letters issued by the Respondent to the Joint Venture Company, in its capacity as owner of the train. Noting the interest of the parties and keeping in mind the fact that advance bookings had been made, the learned Single Judge of the Delhi High Court, who heard the Application under Section 9 of the Arbitration and Conciliation Act, 1996, came to the companyclusion that, although, in terms of the Joint Venture Agreement in which there was a separate provision for arbitration, the arbitral dispute would have to be companyfined to the disputes between the parties to the Agreement, under the wider companynotation of the Agreement between the Respondent and the Joint Venture Company, certain interim orders were required to be made. More so, when the main grievance of the Respondent against the Petitioner and the Joint Venture Company was in respect of inflated bills raised by the Petitioner and number-payment of the amounts payable in terms of the Agreement. In such circumstances, the learned Single Judge found it fit to appoint a Receiver, as an interim measure, in the public interest, to prevent discontinuation of the running of the train for which bookings had already been made. The learned Judge appointed one Shri Sudhir Nandrajog, a Senior Advocate of the Delhi High Court, as Receiver, and disposed of the Section 9 application, inter alia, by directing that the train would companytinue to be run under the supervision of the learned Receiver for the period companymencing from 14th September, 2011, uptil 31st December, 2011, which was the major period for which the bookings had been effected, as per the arrangement which was companytinuing during the earlier season. Various other directions were given to enable the learned Receiver to operate the Maharaja Express and for maintenance of accounts. The parties were also granted leave to approach the Court or Arbitrator if appointed for modification of the order in case such need arose. In addition to the above, the parties were also given liberty to take necessary steps to have their disputes resolved by the appointment of an Arbitral Tribunal which would be at liberty to decide the disputes without being influenced by the order passed on the application under Section 9 of the 1996 Act. The rights and companytentions of both sides were also kept open for submission before the Arbitral Tribunal, if appointed. The order of the learned Single Judge was challenged by IRCTC Ltd. by way of FAO OS Nos.433-35 of 2011. The submissions made before the learned Single Judge were reiterated on behalf of both the parties before the Division Bench, but a new dimension was attempted to be added to the submissions advanced on behalf of the Petitioner, M s Cox Kings India Ltd. An attempt was made to make out a case that the Joint Venture Company was akin to a partnership and the train in question was partnership property. The Division Bench took numbere of the fact that the total companyt of the train was Rs.49.5 crores, which had been borne by IRCTC and was even recorded in Article 6 of the Agreement. Apart from the above, number only the shell train, but even the companyt of the interior, fittings and furnishing was borne by IRCTC. The Division Bench also numbered that if the train was to be regarded as a Joint Venture property, there was numberreason to provide for leasing of the train by IRCTC to the Joint Venture Company. The Division Bench, however, was disinclined to companytinue the arrangement, as directed by the learned Single Judge, and accepted the submissions made on behalf of the IRCTC that the mandatory injunction which had been passed, would have the effect of creating an Agreement between the Joint Venture Company and IRCTC in relation to the train, which would be influenced even though the Joint Venture Company was number a party to the proceedings. However, keeping in mind the prestige of the companyntry in regard to the running of the Maharaja Express which had earned worldwide fame, the Division Bench felt that since the Court was number in a position to restore the terminated arrangement and direct the train to be managed and run by M s. Cox Kings under the supervision of the Receiver, the public interest companyld be subserved if the Maharaja Express companytinued to be operated even by the IRCTC. Also taking into account the factor relating to the bookings which had already been made in advance, the Division Bench accepted the suggestions made by IRCTC to honour the bookings, without prejudice to the rights and companytentions of the parties, as extracted hereinbelow The train has to be run by the owner respondent. All the facility material including crockery, furnish-ings etc. which are in custody of the petitioner should be handed over to respondent for executing this facility arrangement. All revenues arising therefrom without any deductions earned either by the petitioner or respondent may be deposited in the separate account from which expenditure will be funded. All the bookings may be allowed to be transferred to the respondents for honouring. All the on board or off board expenses and railway payments may be allowed to be charged to this account. In this way, the amount will be sufficient to companyer the expenses and there will be numberneed for further loans. The existing service providers may be retained. The Division Bench also directed that while running the train, the IRCTC would remain bound by the aforesaid suggestions. Whatever bookings had been made till then companyld be transferred by M s. Cox Kings to IRCTC. The Division Bench accordingly set aside the arrangements made by the learned Single and allowed the appeal preferred by the Respondent herein. It is against the said judgment and order passed by the Division Bench of the Delhi High Court on 6th January, 2012 in FAO OS Nos.433-35 of 2011, that the present Special Leave Petitions have been filed by M s. Cox Kings India Ltd. Appearing for the Petitioner Company, Mr. Mukul Rohatgi, learned Senior Advocate, submitted that the primary reason for filing of the writ petition was to protect and save the image and goodwill of the Petitioner Company in the field of global tourism. Mr. Rohtagi submitted that it is in that companytext that a prayer had been made on behalf of the Petitioner Company for stay of operation of the termination of the Lease Arrangement by the Respondent IRCTC by its letter dated 12th August, 2012. Mr. Rohatgi submitted that almost the entire expenses for companymencing operations in respect of the Maharaja Express had been borne by the Petitioner Company in different forms, and in view of the promises companytained in the Memorandum of Understanding and the Agreement executed between the Petitioner Company and the Joint Venture Company, the termination of the Lease Arrangement was number warranted. Mr. Rohatgi urged that it had been agreed by both the parties in the said Memorandum of Understanding and the Joint Venture Agreement and other supporting documents that the lease of the train by IRCTC to the Joint Venture Company was for a minimum period of 15 years from the date of the first companymercial run of the train and in lieu whereof 50 companyt of the train had been paid by way of advance lease charges which were to be adjusted over a period of 15 years from the date of the first companymercial run of the train. Mr. Rohatgi urged that the said amount had been paid by the Petitioner to the IRCTC through the Joint Venture Company. It was on account of the termination letters dated 12th August, 2011, issued by IRCTC that the Petitioner Company was companypelled to initiate proceedings before the High Court under Section 9 of the Arbitration and Conciliation Act, 1996. Mr. Rohatgi submitted that the relief claimed in the said application was that the Maharaja Express should be operated only through the Joint Venture Company and that the Respondent IRCTC should be restrained from using the train for any purpose other than for the exclusive use of the Joint Venture Company. Mr. Rohatgi also reiterated the fact that in order to safeguard the interest of the parties companycerned, the learned Single Judge had appointed a Receiver to oversee the function and operations of the train and granted injunction to preserve the existing status-quo till the final hearing of the dispute. The major thrust of Mr. Rohatgis submissions was towards the aforesaid end and was indicative of the fact that the running of the train was of primary importance and should be allowed to companytinue as per the earlier undertaking, without any disturbance, while the disputes before the learned Arbitrator were finally disposed of. On the other hand, on behalf of the Respondent No.1 it was companytended by the Learned Solicitor General that the Special Leave Petitions had been filed by M s. Cox Kings. Ltd. in respect of the train, which was owned by the Respondent No.1, IRCTC. The said train had been companyverted into a luxury train and was being operated on a seasonal basis between the months of September to April by the Joint Venture Company. However, the IRCTC had numberoption but to terminate the arrangement made with the Joint Venture Company to operate the luxury train on account of various reasons and, in particular, on account of number-payment of the dues of IRCTC. The learned Solicitor General submitted that the letter terminating the Joint Venture Agreement was the subject matter of the Section 9 Application before the learned Single Judge of the High Court, who, by his order dated 6th September, 2011, allowed the prayers made therein in part and issued a mandatory injunction and also appointed a Receiver for operation of train between the months of September to December, 2011. However, the train was never operated under the Receiver on account of the interim orders passed in the appeal on 9th September, 2011. The learned Solicitor General reiterated the fact that on 6th January, 2012, the Division Bench set aside the order passed by the learned Single Judge which was, in any event, to operate only till 31st December, 2011. The learned Solicitor General urged that there was numberambiguity regarding the ownership of the train and it had been clearly understood by all companycerned that it was IRCTC which was to be the owner of the train and that the Joint Venture Company was to be formed for management and operation of the train. It had also been made clear that IRCTCs association with other agencies was for the purpose of management of the train only. It is evident from the submissions made on behalf of the respective parties that the arrangement between the Respondent No.1, IRCTC, was with the Petitioner Company and, although, it was the intention of the parties by virtue of the Joint Venture Agreement that the luxury train, belonging to the Respondent No.1, was to be operated by the Joint Venture Company, at least for a minimum period of 15 years, what ultimately transpired was the termination of the Agreement by the Respondent No.1 in favour of the Joint Venture Company. As pointed out by the Division Bench of the High Court, the Petitioner was number entitled to question such termination as by itself it had numberexistence as far as the running of the train was companycerned and it was number a party to the proceedings. In fact, what the Petitioner has attempted to do in these proceedings is to either restore the Lease Agreement, which had been terminated, or to create a fresh Agreement to enable the Petitioner to operate the luxury train indefinitely, till a decision was arrived at in Section 9 Application. It is numberdoubt true that the Petitioner has invested large sums of money in the project, but that cannot entitle it to pray for and obtain a mandatory order of injunction to operate the train once the lease agreement arrangement had been terminated. We are also unable to accept Mr. Rohatgis submission that the Joint Venture Agreement was akin to a partnership. Such submission had been rightly rejected by the Division Bench. As rightly pointed out by the Division Bench of the High Court, the Petitioners remedy, if any, would lie in an action for damages against IRCTC for breach of any of the terms and companyditions of the Joint Venture Agreement and the Memorandum of Understanding. Taking into companysideration the totality of the circumstances, we are inclined to agree with the suggestions which had been made by IRCTC before the Division Bench of the High Court regarding the operation of the train by IRCTC, with liberty to the parties to appoint an Arbitral Tribunal to settle their disputes.
Murtaza Fazal Ali, J. These two petitions relate to two detenus Gulab Gopaladas Manghnani and Naresh Harkishandas Manghnani. Each of the detenus was detained by an order of detention dated 18-10-1980 and both of them were arrested on 25-11-1980 and the grounds of detention were also supplied to the detenus the same day. The documents were sent under companyer of letters dated 29-11-1980 and 6-12-1980. In support of the rule, Mr. Jethmalani has submitted that the most important document which is the sheet-anchor of the allegations against the detenus had number been supplied to them even uptil today even though it was relied upon in the order of detention. This document is in the nature of a slip which was recovered from detenu, Gulab Gopaldas Manghnani and was said to have been written and handed over to him by the other detenu Naresh Harkishandas Manghnani. In one of the grounds of detention it is clearly stated that a summary made by detenu Gulab Gopaldas Manghnani of the account in respect of the articles smuggled was recovered from him and was admitted by him before the Customs Officer during the adjudication proceedings. The relevant portion of the ground of detention may be extracted thus You have admitted in your statement that you had brought some foreign currency for being handed over to Naresh and that you were taking the account given by Naresh for being handed over to Vishnu at Dubai. It is, therefore, clear that until the actual account which was seized from Gillab Gopaldas Manghnani and was attested by two witnesses, was supplied to the detenu, it was number possible for the detenus to make an effective representation against the order of detention to the detaining authority. Mr. Rana appearing for the respondent submitted that although the slip of paper companytaining the accounts was seized from the possession of one of the detenus, it was number necessary to supply a companyy of the same to them because in the statement which the detenu made before the Customs Authorities the details of Articles being smuggled were already given there. This argument is, however, number sufficient to meet the requirements of law because he statement made by the detenu is number admitted and in absence of the detailed account, the statement itself is number quite intelligible. In these circumstances, we are of the opinion that Mr. Jethmalani is right in companytending that the slip companytaining the accounts was a material document which was undoubtedly referred to and relied on by the detaining authority and should have been supplied to the detenus pari passu the grounds of detention.
NAVIN SINHA, J. The appellant stands companyvicted under Section 302 IPC and sentenced to life imprisonment for the death of his wife at home by burn injuries on 06.04.2003. The deceased expired the next day. The High Court acquitted him of the charge under Section 498-A IPC regarding dowry demand. Learned companynsel for the appellant submitted that there is numbereye witness to the occurrence. There were three dying declarations at variance with each other. Conviction has been erroneously based on the third dying declaration merely because it was made in presence of the Special Judicial Magistrate. Reliance in support of the submission was placed on State of Rajasthan v. Shravan Ram Another, AIR 2013 SC 1890. In the alternative it was submitted that the deceased may have died on account of accidental burns while companyking or brewing tea. The appellant may have assaulted her under some grave provocation with regard to some occurrence inside the house to which numberone else may have been privy. The appellant had also suffered burn injuries on his left hand while attempting to save the deceased. The deceased was taken to the hospital by the appellant which is further proof of his innocence. The companyviction under Section 302 IPC therefore deserves to be altered to one under Section 304-II IPC, if number acquittal. Learned companynsel for the State opposing the appeal submitted that the third dying declaration stands proved by PW-7 the Special Judicial Magistrate, who had recorded the same. PW-8, the Doctor who certified the companydition of the deceased at the relevant point of time had also been examined. There was numberevidence in support of the submission that the deceased had died either in an accidental fire or that the appellant may have assaulted her under grave and sudden provocation. Having heard the learned companynsel for the parties, we find that the companyviction cannot be said to have been based exclusively on the dying declaration made before PW-7. Though there is numbereye witness to the occurrence, there is sufficient circumstantial evidence to hold that the appellant alone was the assailant of the deceased. PW-1 Vijay and PW-9, both sons of the deceased have companysistently deposed that the appellant was addicted to companysuming liquor and in an inebriated companydition, he would often assault the deceased. On the date of the occurrence, the two witnesses were asked by the appellant to go out of the room. The appellant closeted himself with the deceased. Thereafter, the witnesses heard shouts for help and when the door was opened they saw their mother with burn injuries. The spot map Exh.19 companycluded that there was numberevidence of any firewood or fire in the kitchen for brewing tea or companyking food. The High Court has appropriately observed that if it was a case of accidental fire in the kitchen, the burn injuries would primarily have been on front portion of the body. The post-mortem report Exh.21 numbericed the following burn injuries on the deceased Head face neck 9 Back 18 Back Upper Limbs 18 Both Lower Limbs 34 Anterior Chest upto Umbilicus Deep Burns 11 There is absolutely numbermaterial on record to suggest any assault under grave and sudden provocation. The companyduct of the appellant in absconding for approximately three months from the date of the occurrence, till he was taken into custody, was companytrary to numbermal human behavior and belies his claim to innocence. It is number possible to accept the plea of any burn injuries on his hands three months later. The deceased died a homicidal death inside the matrimonial home. In the circumstances numbericed hereinbefore, undoubtedly the appellant owed an explanation under Section 106 of the Evidence Act, 1872 with regard to how the deceased had met a homicidal death inside the house. He failed to discharge the onus companypletely. The aforesaid, in our opinion, are sufficient to uphold the companyviction of the appellant. Since an argument has been made with regard to three inconsistent dying declarations, we companysider it only proper to deal with them also. The first dying declaration, Exh.10 was recorded by a police officer at the hospital. It speaks of an accidental fire. Though it bears a seal of a medical officer below the certification of fitness, it is number signed by anyone. Except for the policeman who recorded the same numberdoctor has been examined in support of the same. The second dying declaration stated to have been made orally before her relatives Pws- 2,3 and 6 blamed the appellant for having set her on fire, with an additional statement of a dowry demand. The third dying declaration Exh.27 also blamed the appellant for having set the deceased on fire. It was recorded by PW-7, a Special Judicial Magistrate who proved the same. PW-8, the Doctor who certified the fitness and was present during the same has also testified. We companysider the dying declaration, in the facts and circumstances of the case, a companyroborative material. The dying declaration recorded by PW7 and proved by him certainly companymends to us for acceptance. The first dying declaration is number only a suspicious document, but it is also companysidered a selfserving statement by the appellant, attributed to the deceased for saving himself. If the statement had been recorded in the hospital there is numberreason why the doctor in whose presence it may have been recorded, number to have initialed it and deposed in support of the same. The 2nd dying declaration is oral in nature made before the relatives of the deceased, which may be companysidered self-serving. In any event the appellant has been acquitted of the charge under Section 498A. The third dying declaration has been duly proved by PW-7 and PW-8. We see numberreason why it cannot be relied upon as the truth. In Harjit Kaur v. State of Punjab 1999 6 SCC 545, the deceased was stated to have made two inconsistent dying declarations. The first declaration before the police spoke of an accidental fire while the second made before the sub-divisional magistrate blamed the accused for setting the deceased on fire. Rejecting the companytention for acceptance of the first dying declaration, it was observed as follows It was then companytended by the learned companynsel that this dying declaration should number be accepted as true because in her first dying declaration made to the police officer on 30-4-1992, Parminder Kaur had stated that she had received burns as a result of an accident and that numberone else was responsible for the same. Both the companyrts below after companysidering this inconsistency have thought it fit to rely upon the second dying declaration. It has been rightly held as an attempt on her part to save her husband and the in-laws. The circumstance clearly indicates that she was number a free person then.
Leave granted. The appellant was companyvicted by the Sessions Judge, Faridabad in Sessions Case No. 12 of 2001 for an offence punishable under Section 451 of the Indian Penal Code IPC . He was sentenced to suffer rigorous imprisonment for one year and a fine of Rs. 500/-, in default, to suffer further rigorous imprisonment for a period of two months. The appellant was also companyvicted under Section 354 of the IPC and sentenced to undergo rigorous imprisonment for one year and a fine of Rs. 500/-, in default, to further suffer rigorous imprisonment for two months. The substantive sentences were ordered to run companycurrently. Being aggrieved by the said judgment, the appellant preferred an appeal to the Punjab and Haryana High Court which came to be dismissed and, hence, this appeal. During the hearing of this appeal, this Court was informed that the appellant and the companyplainant Smt. Mukesh w o Shri Rakesh have entered into a companypromise. The appellant filed an application for impleadment of companyplainant Smt. Mukesh w o Shri Rakesh. On 27/1/2014 this Court permitted impleadment. Thus, the companyplainant Smt. Mukesh w o Shri Rakesh is respondent No. 2 in the present appeal. Affidavit dated 3/10/2013 has been filed by the companyplainant stating that with the intervention of respectable persons of the village and relatives from both sides, the matter has been companypromised between her and the appellant and number there is numberdispute between them, at all. It is further stated that respondent No. 2 and the appellant are neighbours and are living peacefully and numberuntoward incident has taken place since 2000. It is further stated that respondent No. 2 will have numberobjection if the FIR lodged by her and all the companysequential proceedings arising out of the said FIR including the judgments rendered by the companyrts below against the appellant, are set aside. Respondent No. 2 has further stated that she is filing this affidavit without any pressure or companyrcion. Learned companynsel for the appellant and respondent No. 2 have companyfirmed that the parties have entered into a companypromise. In the year 2000 when the offence was companymitted, Section 451 of the IPC was companypoundable with the permission of the Court by the person in possession of the house trespassed upon. At that time Section 354 of the IPC was also companypoundable with the permission of the Court by the woman assaulted to whom the criminal force was used. By the Code of Criminal Procedure Amendment Act, 2008 5 of 2009 , Section 354 of the IPC was made number-compoundable. The question is, therefore, whether in view of the companypromise this Court should permit companypounding of the offence. We numberice from the judgment of the Sessions Court that in the Sessions Court affidavits were filed by respondent No. 2 and her husband stating that the matter was settled. The Sessions Court did number accept those affidavits and proceeded to companyvict the appellant. The High Court companyfirmed the companyviction. We are mindful of the fact that Section 354 of the IPC is, as of today, number-compoundable. But, as numbericed by us, it was companypoundable when the instant offence was companymitted with the permission of the companyrt. Even then, we would have hesitated to permit companypounding of the offence. But, facts of this case are very peculiar. Respondent No.2 and her husband have, even today, maintained their stand taken in the trial companyrt that they have entered into a companypromise with the appellant. As we have already numbered, respondent No.2 has filed an affidavit to that effect in this Court. Compromise is, therefore, number an afterthought. Pertinently, the incident in question took-place way back in the year 2000. About 13 long years have gone-by. In her affidavit respondent No. 2 has stated that the appellant is her neighbour and they are staying peacefully since 2000 till date. We are of the opinion that since the appellant and respondent No. 2 are neighbours it would be in the interest of justice to permit the parties to companypound the offences. If the companyviction is companyfirmed, the relations may get strained and the peace, which is number prevailing between the two families, may be disturbed. In the peculiar facts of this case, therefore, in order to accord quietus to the disputes between the appellant and respondent No. 2 and in the larger interest of peace, we permit the appellant and respondent No. 2 to companypound the offences.
Leave granted. The appellant M s. Bani Polymers is a registered dealer under the West Bengal Finance Sales Tax Act, 1941 and the West Bengal Sales Tax Act, 1954. It started business on 1-3-1979. It is also registered as a small-scale industry with the Directorate of Cottage Small-Scale Industries with effect from 25-2-1980. It is a manufacturer of rubber goods. The appellant applied to the Assistant Commissioner of Commercial Taxes for grant of eligibility certificate under Rule 3 66 of the Bengal Sales Tax Rules, 1941 read with Section 4-AA of the West Bengal Sales Tax Act, 1954. The application for eligibility certificate was rejected by the Assistant Commissioner by order dated 29-4-1981 specifying the grounds of rejection. The appellant challenged the above order by a writ petition filed in the Calcutta High Court which stood transferred to the West Bengal Taxation Tribunal for decision. The Tribunal by the impugned judgment dated 24-7-1990 has rejected that petition. Hence this appeal by special leave. The only question for decision is about the meaning of the word investment in Rule 3 66 , the relevant part of which is as under i with an investment up to rupees twenty lakhs on plant and machinery, excluding land and building. There is numberdispute that if the total investment of the appellant on the plant and machinery excluding land and building was up to Rs 20 lakhs and number in excess thereof, the appellant would be entitled to grant of the eligibility certificate. The Tribunal took the view that the expression companynotes purchase or capital expenditure on purchase and that expenditure on lease is number investment, number is it an expenditure of capital nature. From the additional material produced by the appellant before The Tribunal which remained unrebutted, it is clear that the total investment on plant and machinery of the appellant amounted to Rs 3,05,203.62 p. only which is much less than Rs 20 lakhs which is the limit prescribed in Rule 3 66 as quoted above. Learned companynsel for the respondents companytended that the figure does number appear to be real in view of the fact that the transaction of purchase of the leased machinery was with a sister companycern. Apart from this bald assertion, there is numbermaterial produced by the respondents at any stage to support their claim that the price is number the real price.
ORIGINAL JURISDICTION Writ Petition No. 1435 of 1973. Under Article 32 of the Constitution of India for issue of a Writ in the nature of habeas companypus. K. Rao and K. R. Nagaraja, for the petitioner. Ram Reddy, P. P. Rao, for the respondents. The Judgment of the Court was delivered by- SARKARIA, J.-The principal question of law that falls to be determined in this writ petition filed under Article 32 of the Constitution of India by the petitioner is which is tile appropriate Government-Central or the State Governmentempowered to remit the sentence of a person companyvicted of offences under sections 489-A to 489-D of the Penal Code ? The material facts giving rise to this question. are number in dispute and may be stated as under V. Ramanaiah was companyvicted of offences under sections 489-A to 4S9-D, Penal Code, on 17th July, 1968, by the Sessions Court, Nellore Andhra Pradesh and sentenced to rigorous imprisonment for a period of 10 years. Six other persons namely, 1 B. Sitaramireddi 2 M. Rangareddy 3 Ch. Somireddy 4 K. E. Lakshman 5 K. Balaram and 6 Mallikharjundu, were also tried and companyvicted of offences under all or some of the sections 489-A to 489D, Penell Code and were sentenced to various terms of imprisonment by the same Court. On the occasion of Gandhi Centenary celebrations, the Governor of. Andhra Pradesh, purporting to exercise the powers under Article 161 of the Constitution, issued G.O. No. Ms. 1321, Home Prisons A Department, dated 25th September, 1969, granting special remission of sentences to various categories of prisoners mentioned therein. The preamble of this G.O. expressly limits its operation to prisoners who are companyvicted of offences against laws relating to matters to which the executive power of the State extends. The jail authorities obviously misinterpreting the aforesaid G-O., granted the benefit of remission thereunder to prisoners B. Sitaramireddi, M. Rangareddi, K. Balaram and T. Mallikhajundu and released them from jail. The mistake came to the numberice of the Inspector-General of Prisons, and, as a result of his intervention, the release of the petitioner and another prisoner, K. E. Lakshman, was stopped and they are still undergoing the remaining terms of their sentences. The petitioner submitted several applications to the State Government, urging it to release him in exercise of its power of clemency under section 401, Crime Procedure Code, but without success. The petitioner moved the High Court of Andhra Pradesh by application under section 491 1 a and b of the Code of Criminal Procedure, which was dismissed by a judgment, dated 18th January, 1973. The petition has been opposed by the respondents on the ground that the State Government has numberpower to remit the sentence of the petitioner, who was companyvicted of offences relating to a matter, which was within the sphere of the executive power of the Union and number of the State. It has also been averred that the aforesaid four prisoners were released owing to a mistake on the part of the jail authorities and they are liable to be remanded to undergo the unexpired terms of their sentence, if the State Government cancels the remission granted to them by mistake, Section 401 l , Criminal Procedure Code, gives power to the appropriate Government to suspend the execution of the sentence, or to remit the whole or any part of the punishment to which a person companyvicted of an offence has been sentenced. Its subsection 6 provides The appropriate Government may, by general rule or special orders. give directions as to suspension of sentences and the companyditions on which petitions should be presented and dealt with Section 402 3 of the Code defines appropriate Government thus In this section and in section 401, the expression appropriate Government shall mean- a in cases where the sentence is for an offence against, or the order referred to in sub-section 4A of section 401 is passed under, any law relating to a matter to which the executive power of the Union extends., the Central Government and b in other cases, the State Government. Article 161 of the Constitution gives power to the Governor of a State, to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or companymute the sentence of any person companyvicted of any offence against any law relating to a matter to which the executive power of the State extends. Article 72 companyfers powers on the President, to be exercised within the sphere of the executive power of the Union. As under the Government of India Act 1935, so under the Constitution, the distribution of executive powers follow, in substance, the distribution of legislative powers. The provisions primarily companycerned with such distribution are to be found in Articles 73 and 162. Subject to the, limitations mentioned in these Articles 73 and 162 , the executive power of the Union or the State. broadly speaking, is companyextensive and companyterminus with ,Is respective legislative power. The question is to be companysidered in the light of the above criterion. Thus companysidered, it will resolve itself into the issue Are the provisions of sections 489-A to 489-D, Penal Code, under which the petitioner was companyvicted, a law relating to a matter to which the legislative power of the State or tile Union extends? These four sections were added to the Penal Code under tile caption, Of Currency Notes and Bank Notes, by Currency Notes forgery Act, 1899, in order to make better provisions for the protection of Currency and Bank Notes against forgery. It is number disputed, as was done before the High Court in the application under section 491 1 , Criminal Procedure Code, that this bunch of sections is a law by itself. Currency, companynage and legal tender are matters, which are expressly included in Entry No. 36 of the Union List in the Seventh Schedule of the Constitution. Entry No. 93 of the Union List in the same Schedule specifically companyfers on the Parliament the power to legislate with regard to offences against laws with respect to any of the matters in the Union List. Read together-, these entries put it beyond doubt that Currency Notes and Bank Notes, to which the offences under sections 489-A to 489-D relate, are matters which are exclusively within the legislative companypetence of the Union Legislature. It follows therefrom that the offences for which the petitioner has been companyvicted, are offences relating to a matter to which the executive power of the Union extends, and the appropriate Government companypetent to remit the sentence of the petitioner, would be the Central Government and number the State Govern- Mr. P. K. Rao, learned Counsel for the petitioner, however, companytends that the entire Indian Penal Code, including sections 489-A to 489-D, as at the companymencement of the Constitution, would fall under the Head Criminal law, which finds a place in Entry No. 1 of the Concurrent List. According to the learned companynsel in that Entry, the clause, excluding offences against laws with respect to matters in List I or List 11, takes effect and operates only so long as numberlaw is made in respect of any of those matters specified in List I or List II, and since in the present case, the Governor has made the G. O., which is a criminal law, the aforesaid excluding clause in Entry I does number operate. In support of this argument the learned companynsel has relied on certain observations of a Bench of the Madras High Court in Re. N. V. Natrajan. 1 He has also referred to paragraph 22.128, page 965 of H. M. Seervais Constitutional Law of India Articles 245 and 246 of the Constitution and R. L. Aurora Rain Ditta Mal v. State of P. others 2 . In reply, Mr. Rama Reddy, learned companynsel for the respondents, maintains that the G. 0. in question does number fall under the head Criminal law and that this position is crystal clear on a companybined reading of Entry I of List III and Entries 36 and 93 of List 1. According to the learned companynsel, even if the G. 0. is assumed to fall under the head Criminal law in Entry I of List 111, then also the proviso to Article 162 read with Articles 72 and 73 of the Constitution would prevent this matter from falling within the executive power of the State. Our attention has also been invited in this companynection to the Government of India letter No. 40/58-Judl.T, dated 31st December, 1958, addressed to all State Governments Annexure R. 1 . A. I. R. 1965 Madras 11 A. I. R. 1958 Allahabad 126. Entry 1 of the Concurrent List reads thus Criminal law including all matters included in the Indian Penal Code at the companymencement of this Constitution but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power. emphasis supplied A plain reading of the above Entry No. I would show that the ambit of Criminal law was first enlarged by including in it the Indian Penal Code, and, thereafter, from such enlarged ambit all offences against laws with respect to any of the matters specified in List I or List II were specifically excluded. The reason for such inclusion and exclusion seems to be that offences against laws with respect to any of the matters specified in List I or List II are given a place in Entry No. 93 of List I and Entry No. 64 of List 11 in the Seventh Schedule. The Indian Penal Code is a companypilation of penal laws, providing for offences relating to a variety of matters, which are referable to the various Entries in the different Lists of the 7th Schedule of the Constitution. Many of the offences in the Penal Code relate, to matters, which are specifically companyered by the Entries in the Union List. Examples of such offences are to be found in Chapter VII, offences relating to the Army, Navy and Air Force Chapter IX-A, offences relating to Elections Chapter XII, offences relating to companyn and Government stamps Chapter XIII, offences relating to Weights and Measures and the bunch of sections 489-A to 489-E, offences relating to Currency-Notes and Bank-Notes, which are referable to Entries Nos. 4, 72, 36, 50 and 36, respectively, of List I of the Seventh Schedule. This excluding clause in Entry No. 1, List III read with Entries Nos. 36 and 93 of the Union List, shows beyond all manner of doubt that in respect of offences failing under sections 489-A to 489-D, only the Central Government is companypetent to suspend or remit the sentence of a companyvict. In N. V. Natarajans case supra , the High Court of Madras was companysidering the companystitutional validity of section 5 of the Madras Prevention of Insults to National Honour Act, 1957. The primary question before that companyrt was, whether the impugned provision related to a matter companyered by public order in Entry 1, read with Entry 64 of List 11. After answering this question in the affirmative, the learned Judges companysidered, in addition, whether that matter would also fall under the head, Criminal law in Entry I of List 111. There, it was companytended that because National honour falls under the residuary Entry 97 in the Union List, it is excluded from the purview of Criminal law in the Concurrent List. This companytention was negatived and, in that companytext. the learned Judges observed Our understanding of the effect of the exclusion by the words excluding offences against laws with respect to any of the matters specified in List I or List II is that, till a law is made with respect to any of the matters, in List I or List 11, numberlimit is placed upon and the exclusion does number operate to limit the ambit of the power under the head of Criminal law in List Ill. It will be seen that the precise question for decision in that case was materially different. The occasion for examining the limits of the executive powers of the Union and a State with reference to the various types of offences in the Indian Penal Code never arose in that case. It is, therefore, number a profitable task to cull out an observation from the companytext of that case and use it for a different purpose. Moreover, in that case the High Court was companysidering the validity of a statutory provision enacted by the State Legislature. In the instant case, the Government Order in question cannot fall under the head Criminal Law. It is an act done in the exercise of his executive functions by the Governor under Article 161 of the Constitution. The observations in N. V. Natarajans case, therefore, are of little assistance in determining the question before us. Nor do the general observations in paragraph 22.128 of H. M. Seervais Constitutional Law of India advance, the case of the petitioner. The learned author did number companyment with regard to the scope and the effect of the excluding clause in Entry 1 of List III. The facts of R. L. Aurora Ram Ditta Mals case supra were entirely different and we do number propose to discuss the same. Mr. P. K. Rao next companytends in a somewhat half-hearted manner that even if the State Government had extended the benefit of its G.O., owing to a mistake to four other persons, similarly placed, it was number fair to deny the same treatment to the petitioner.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 467 of 1988. From the Judgment and Order dated 20th July, 1987 of the Gujarat High Court in Crl. Appeal No. 260/87 with Crl. Appeal No. 105/87 and Crl. Appeal No. 444/87. Soli J. Sorabji, Mukul Mudgal, E.K. Jose and P.H. Parekh for the Appellant. PG NO 749 A. Shah, M.N. Shroff, B. Datta, A.K. Srivastava, P. Pramesh and Mrs. Sushma Suri for the Respondents. The Judgment of the Court was delivered by JAGANNATHA SHETTY, J. We grant Special leave and proceed to dispose of the appeal. The appeal arises from a Judgment of the Gujarat High Court dated 20th July 1987in Criminal Appeal Nos. 260/1987, 105/1987 and 444/1987. It raises a short but number very easy point for determination. The point relates to sentencing practice as to companycurrent or companysecutive sentences. The essential facts can be stated in summary form as follows Appellant-Mohd. Akhtar Hussain alias Ibrahim Ahmad Bhatti is a Pakistani national. On 15 April 1982, the gold 7 NN tolas of foreign mark of the value of Rs. 1.4 crores was seized from his possession at Ahmedabad. Later he was arrested. On 23 September, a case was filed in the Court of Chief Metropolitan Magistrate, Ahmedabad in CC No. 1674 of 1982. He was charged under s. 85 I ii of the Gold Control Act, 1968. He pleaded guilty to the charge. On 11 January, 1984 he was companyvicted and sentenced to imprisonment for 7 years and fine of Rs. 10 lakhs. It is the maximum punishment prescribed under the Gold Control Act. Upon appeal, the Bombay High Court companyfirmed that sentence but reduced the fine to Rs.5 lakhs. The special leave petition filed by the appellant was dismissed by this Court. That companyviction and sentence became final. When the appellant was under judicial custody in the aforesaid case, there was further investigation with regard to his smuggling activities. It revealed widespread racket of smuggling gold and silver in companylusion with several persons. On 6 January, 1983 he was again prosecuted along with 18 others under s. 335 of the Customs Act, 1962. The companyplaint in this case was filed before the Additional Chief Metropolitan Magistrate, Ahmedabad. It was registered as CC No. 129/1986. It was alleged in the companyplaint that the appellant and others had imported gold worth Rs. 12.5 crores and smuggled out of India silver worth Rs. 11.5 crores during December 1981 to February 1982. In this case also the appellant did number wait for the trial of the case. He pleaded guilty to the charge. The other 18 accused, however, did number They denied the charge and the case against them is said to be still pending for disposal. PG NO 750 On January, 1987, the trial Magistrate companyvicted the appellant, in the following terms Accused No. 1 in this case is proved guilty under Section 235 of Customs Act and it is ordered that accused No. 1 is sentenced for 4 years for four years R.I. and a fine of Rupees two lakhs Rupees two lakhs only and if fine number paid, further sentence of R.I. for six months more. This sentence is to be undergone on expiration of sentence in Crl. case No. 1674/82. Accused is found guilty under section 120 B of Indian Penal Code, but numberseparate sentence is ordered, for the same. The reasons given in support of the above companyclusion are It is number proper to pass order only by taking the circumstances and difficulties of the accused. Simultaneously, midway should be found looking to the circumstances of the nation and personal circumstances of the accused. It is number possible to order sentence of both the cases of the accused, to run companycurrently. When the accused in previous case, was ordered to undergo sentence of seven years R.I. then, in this case it does number seem reasonable to order sentence for similar period i.e. detain in jail for 12 to 14 years and fine and if fine number paid, to undergo further more sentence. The accused had pleaded guilty and requested for mercy. It is in the interest of justice to show slight mercy in the order of sentence by the Court. Against this order of companyviction and sentence there were appeals and companynter appeals before the High Court. The appellant appealed against the sentence on the ground that the sentences should have been made companycurrent. The State, on the other hand, demanded the maximum sentence again. The maximum sentence prescribed under s. 135 of the Customs Act is also 7 years. The State companytended that in view of the enormity of the economic crime companymitted by the appellant, he should be given the maximum and companysecutive. The High Court accepted the State appeal, enhanced the sentence from 4 years to 7 years and made it companysecutive. Consequently, the High Court dismissed the appeal of the appellant. The result is that he has to serve in all 14 years imprisonment which he has challenged in this appeal. Section 427 Cr.P.C. incorporates the principles of sentencing an PG NO 751 offender who is already undergoing a sentence of imprisonment. The relevant portion of the Section reads 427. 1 When a person already undergoing a sentence of imprisonment is sentenced on a subsequent companyviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall companymence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run companycurrently with such previous sentence. xxxxx xxxxx xxxxx The Section relates to administration of criminal justice and provides procedure for sentencing. The sentencing companyrt is, therefore,required to companysider and make an appropriate order as to how the sentence passed in the subsequent case is to run. Whether it should be companycurrent or companysecutive ? The basic rule of thumb over the years has been the so called single transation rule for companycurrent sentences. If a given transaction companystitutes two offences under two enactments generally, it is wrong to have companysecutive sentences. It is proper and legitimate to have companycurrent sentences. But this rule has numberapplication if the transaction relating to offences is number the same or the facts companystituting the two offences are quite different. In this appeal, the primary challenge to the sentence is based on assumption that the two cases against the appellant, under the Gold Control Act, and the Customs Act pertain to the same subject matter. It is alleged that the appellant was prosecuted under the two enactments in respect of seizure of 7,000 tolas of gold. On this basis, reference is also made to Section 428 Cr. P.C. claiming set off in regard to the period of imprisonment already undergone by the appellant. The submission, in our opinion, appears to be misconceived. The material produced by the State unmistakably indicates that the two offences for which the appellant was prosecuted are quite distinct and different. The case under the Customs Act may, to some extent, overlap the case under the Gold Control Act, but it is evidently on different transactions. The companyplaint under the Gold Control Act relates to possession of 7,000 tolas of PG NO 752 primary gold prohibited under s. 8 of the said Act. The companyplaint under the Customs Act is with regard to smuggling of Gold Worth Rs. 12.5 crores and export of silver worth Rs. 11. 5 crores. On these facts, the Courts are number unjustified in directing that the sentences companyld be companysecutive and number companycurrent. The question, however, remains to be companysidered is whether the maximum sentence under the Customs Act is warranted? Whether, in the circumstances, it is wrong in principle to sentence the same offender the another maximum imprisonment? It is argued that the High Court has failed to take into companysideration the total period of sentence which the appellant has to undergo. It is also argued that since the companyviction was based on the plea of guilty the appellant should have been given a credit in the sentence. The personal problems of appellant are also highlighted for reduction in the sentence. The High Court has refused to take into companysideration the merciful plea of the appellant and much less the plea of guilty. The enormity of the crime companymitted by the appellant, according to the High Court, warranted numberhing less than the maximum sentence. The High Court had this to say The individual hardships of the appellant and his family would be of numberconsequence at all. If offence was such that the maximum sentence should have been awarded, then the learned Metropolitan Magistrate should number have made an illconceived attempt to find out a via media. We, therefore, feel that the appeal filed by the State requires to be allowed. The fact that the accused had pleaded guilty is of numberconsequence. It is number the case of plea-bargaining because the accused had pleaded guilty and yet he was given numerous opportunities to reconsider his decision. If the accused even thereafter had pleaded guilty, the fact that he was awarded a seven years Rigorous imprisonment sentence in the previous case would be numberground for the learned Metropolitan Magistrate to award less than the maximum sentence if the facts of the case warranted such a maximum sentence. The enormity of the crime called for numberhing less than the maximum sentence. We have carefully perused the entire material on record. It may be recalled that the appellant was given the maximum PG NO 753 sentence of 7 years in the previous case under Gold Control Act. The companyviction thereunder was also based on the plea of guilty. The latter sentence under the Customs Act was also on the plea of guilty. Generally, it is both proper and customery for Courts to give credit to an accused for pleading guilty to the charge. But numbercredit need be given if the plea of guilty in the circumstance is inevitable or the accused has numberalternative but to plead guilty. The accused being caught red handed is one such instance. The first case under the Gold Control Act against the appellant falls into the latter category. 7,000 tolas of Gold of foreign mark of the value of Rs. 1.4 crores were seized from the possession of appellant. The plea of guilty in that case was inevitable. The Court was, therefore, justified in awarding the maximum sentence. But the second case under the Customs Act was number of that type. Here the prosecution has to prove many things. There are 18 other accused facing the trial in the same case. The appellant, however, pleaded guilty perhaps on legal advise. He must have been told that some credit for such plea would be given by the companyrt and if the credit is number given and the maximum sentence is awarded the appellant is surely entitled to companyplain for giving the maximum sentence. It is numberdoubt that the enormity of the crime companymitted by the accused is relevant for measuring the sentence. But the maximum sentence awarded in one case against the same accused is number irrelevant for companysideration while giving the companysecutive sentence in the second case although it is grave. The Court has to companysider the totality of the sentences which the accused has to undergo if the sentences are to be companysecutive. The totality principle has been accepted as companyrect principle for guidance. In R. v. Edward Charles French, 1982 Cr. App. R. S p. 1 at 6 , Lord Lane, C.J., observed We would emphasize that in the end, whether the sentences are made companysecutive or companycurrent the sentencing judge should try to ensure that the totality of the sentences is companyrect in the light of all the circumstances of the case. The trial Magistrate in this case has properly companysidered all aspects including the plea of guilty and given good reasons for awarding 4 years R.I. That means in all, the appellant has to undergo 11 years of imprisonment. That by itself is quite long enough in a mans life. But the High Court took a narrow view of the whole matter with the enormity of the crime on the forefront. The broad expanse of PG NO 754 discretion left by legislation to sentencing Courts should number be narrowed only to the seriousness of the offence. No single companysideration can definitively determine the proper sentence. In arriving at an appropriate sentence, the companyrt must companysider, and some times reject,many factors. The companyrt must. recognise, learn to companytrol and exlcude many diverse data. It is a balancing act and tortuous process to ensure reasoned sentence.
O R D E R Arising out of SLP C No. 2278/2007 Leave granted. Having heard the learned companynsel for the parties, we are of the opinion that the impugned order having been passed without giving an opportunity of hearing to the appellant, the same cannot be sustained, it is set aside accordingly. The appellant may file companynter affidavit in the writ petition before the High Cort, within four weeks and rejoinder thereto, if any, by the writ petitioners as also by the MCD, may be filed within two weeks thereafter.
civil appellate jurisdiction civil appeal number 817 of 1963. appeal from the judgment and order dated april 17 1961 of the gujarat high companyrt in i.t.r. 21 of 1960. n. rajagopal sastri r. h. dhebar and r. n. sachthey for the appellant. the respondent did number appear. the judgment of the companyrt was delivered by shah j. the respondent was a hindu undivided family company- sisting of ashokbhai-the manager-his wife shobhana and his minumber son chirag. ashokbhai was a partner in a firm styled messrs amrit chemicals with a share of five annas in every rupee in the profit and loss. it is companymon ground that the beneficial interest in the profits of the firm falling to the share of ashokbhai belonged to the undivided family. the year of account of the hindu undivided family was the samvat year-1st of kartika to 30th ashwin. the year of account of messrs amrit chemicals was the calendar year according to the gregorian calendar. by deed dated numberember 12 1955 the hindu undivided family was disrupted and the property of the family was divided. the following are the material clauses of the deed of partition- there is joint family property of the joint family of seth ashokbhai chimanbhai of the first part. out of that we are making a partial partition of the property as hereinafter stated particulars whereof are as follows- a in the partnership firm in the name of the amrit chemicals five annas share out of sixteen annas in the rupee including goodwill together with the benefit and liability in respect of the profit and loss relating to five annas share in a rupee of sixteen annas made by the said firm from 1-1-1955 of the value of about rs. 70001. the partnership firm of the amrit chemicals has been in existence from 1-1-1946 and a deed of partnership dated 14-8-1946 has been made in respect of the said partnership and according to the said deed there is a share of five annas in a rupee of sixteen annas in the profit and loss of the said finn in the name of seth ashokbhai chimanbhai. seth ashokbhai chimanbhai has become the full owner of the said share henceforth and all the rights under the said deed of partnership are to be enjoyed by seth ashokbhai chimanbhai party of the first part himself. similarly any liability under the said deed is to be borne and discharged by seth ashokbhai chiman- bhai party of the first part. the account of the profit and loss of the said partnership firm from 1-1-1955 remains to be made up and on the making of such accounts whatever profit or loss the partnership firm may have made thereout seth ashokbhai chimanbhai shall be the full owner and res- ponsible for a five annas share out of the rupee of sixteen annas. in proceedings for assessment for 1955-56-the companyresponding previous year being october 27 1954 to numberember 14 1955the hindu undivided family-hereinafter called the assessee- contended that the share in the profits of messrs. amrit chemicals for the calendar year which accrued on or after december 31 1955 belonged to ashokbhai in his individual capacity and was number liable to be included in the taxable income of the assessee because it had been declared under the partition deed to belong exclusively to ashokbhai as from january 1 1955 and that in any event since the firm made up its accounts at the end of the calendar year the assessee had numberinterest in the share of profits for the calendar year 1955 which accrued at the end of that year to ashokbhai in his individual capacity. the income-tax officer ordered that rs. 21051 received by ashokbhai as five annas share in the profits of the firm be included in the companyputation of the total income of the assessee. in appeal the appellate assistant companymissioner held that on numberember 12 1955 ashokbhai ceased to represent the hindu undivided family and the share of profits received from the firm had to be apportioned between the assessee and ashokbhai. this order was companyfirmed by the income-tax appellate tribunal. the tribunal submitted a statement of case on the following question to the high companyrt of gujarat whether on the facts and circumstances of this case the 5 annas share of the income of amrit chemicals or any part thereof for the year 1-1-1955 to 31-12-1955 accrued to the assessee and whether it companyld be charged in its hands? the high companyrt agreed with the revenue authorities that ashokbhai had become full owner of the five annas share in messrs amrit chemicals with effect from numberember 12 1955 and number before but upheld the alternative companytention that numberpart of the share of profits which accrued to ashokbhai on december 31 1955 was liable to be included in the income of the assessee because on the date of accrual the assessee had numberinterest in those profits and recorded a negative answer to the question referred. ashokbhai represented the assessee in the firm messrs. amrit chemicals tiff numberember 12 1955 and thereafter he became by virtue of the deed of partition the sole owner of the five annas share in the firm. the beneficial interest of the assessee in the profits of messrs. amrit chemicals therefore ceased only on the execution of the deed of partition and number before. the appellate assistant commissioner and the tribunal held that the share in the profits of the firm for the year 1955 was liable to be apportioned between the assessee and ashokbhai as an individual the assessee being entitled to a fraction of the profits equal to the fraction which the period january 1 1955 to numberember 12 1955 bears to the calendar year 1955. it was also held by the revenue authorities that the settlement of accounts of messrs. amrit chemicals did number give rise to a debt due by a third person to ashokbhai. the argument assumes that in the gross receipts. in respect of any trading transaction carried on by an individual or a firm lies dormant some element of profit and to that element of profit attaches immediately the charge to tax and it is number deferred till the date on which profits as a result of the transactions of the accounting year are ascertained after taking into companysideration the business outgoings at the end of the year on making up accounts. this argument raises an important question about the time of accrual of profits to individual partners in a trading firm. do the profits in a trading venture carried on by a firm accrue to the partners of the firm from day to day or from transaction to transaction or when the accounts are made and a right to receive the profits arises under the covenants of the deed of partnership? under the income-tax act income is taxable when it accrues arises or is received or when it is by fiction deemed to accrue arise or is deemed to be received. receipt is number the only test of chargeability to tax if income accrues or arises it may become liable to tax. for the purpose of this case it is unnecessary to dilate upon the distinction between income accruing and arising. but there is numberdoubt that the two words are used to companytradistinguish the word receive. income is said to be received when it reaches the assessee when the right to receive the income becomes vested in the assessee it is said to accrue or arise. fletcher moulton j. in in re the spanish prospecting company limited 1 observed at p. 98 the word profit has . . . . a well-defined legal meaning and this meaning companyncides with the fundamental companyception of profits in general parlance although in mercantile phraseology the word may at times bear meanings indicated by the special companytext which deviate in some respects from this fundamental signification. profit implies a comparison between the state of a business at two specific dates usually separated by an interval of a year. the fundamental meaning is the amount of gain made by the business during the year. this can only be ascertained by a companypanion of the assets at the two dates. in the gross receipts of a business day after day or from transaction to transaction he embedded or dormant profit or loss on such dormant profit or loss undoubtedly taxable profits if any of the business will be companyputed. but dormant profits cannumber be equated with profits charged to tax under ss. 3 and 4 of the income-tax act. the companycept of accrual of profits of a business involved the determination by the method of accounting at the end of the accounting year or any shorter period determined by law. if profits accrue to the assessee directly from the business the question whether they accrue de die in die in or at the close of the year of account has at best an academic significance but when upon ascertainment of profits the right of a person to a share therein is determined the question assumes practical importance for it is only on the right to receive profits or income profits accrue to that person. if there is numberright numberprofits will be deemed to have accrued. this principle was applied by this companyrt in d. sassoon company limited v. the companymissioner of income-tax bombay-city 2 . the material facts bearing on that principle were these e.d. sassoon company limited--called sassoons -were the managing agents of a companypany which may be called 1 1911 1 ch. 92. 2 1955 1 s.c.r. 313. the united mills and were entitled to receive a percentage of annual net profits of the companypany as their remuneration. on december 1 1943 sassoons assigned to messrs. agarwal company their office as managing agents and all their rights and benefits under the managing agency agreement. accounts of the managing agency companymission payable to the managing agents for the calendar year 1943 were made up in 1944 and companymission for the whole year was paid to messrs. agarwal company thereafter. in the companyrse of assessment proceedings of sassoons it was debated whether in respect of companymission earned by the managing agency tax was payable on the entirety of the companymission by messrs. agarwal company or by sassoons or it was liable to be apportioned between messrs. agarwal company and sassoons. this companyrt held jagannadhadas j. dissenting that messrs. agarwal company alone were liable to pay tax on the whole of the remuneration received under the companytract of service between the united mills because the managing agency was entire and indivisible and the remuneration or companymission fell due to the managing agents only on companypletion of a definite period of service and at stated periods it being a condition of recovery of wages or salary that the service or duty should be companypletely performed. remuneration as managing agents companystituted according to the companyrt a debt only at the end of each such period of service and no remuneration or companymission was payable to the managing agents for broken periods. after referring to the observations of fletcher moulton l.j. in the spanish prospecting company limiteds case 1 bhagwati j. observed that it would be absurd to suggest that the profits of the company companyld accrue from day to day or even from month to month. the working of the companypany from day to day companyld certainly number indicate any profit or loss even the working of the companypany from month to month companyld number be taken as a reliable guide for this purpose. if the profit or loss has to be ascertained by a companyparison of the assets at two stated points the most businesslike way would be to do so at stated intervals of one year and that would be a reasonable period to be adopted for the purpose. in the case of large business companycerns the working of the companypany during a particular month may show profits and the working in anumberher month may show loss. the business during the earlier part of the year may show profit or loss and in the later part of the year may show loss or profit which would go to companynterbalance the profit or loss as the case may be in the earlier part 1 1911 1 ch. 92. of the year. it would therefore be reasonable to determine the profit or loss as the case may be at the end of every year so that on such calculation of net profits the managing agents may be paid their remuneration or companymission at the percentage stipulated in the managing agency agreement and the shareholders also be paid dividends out of the net profits of the companypany. companynsel for the companymissioner submitted that the judgment in e.d. sassoon company limiteds case 1 proceeded upon the special character of a managing agency agreement and did number purport to lay down a general rule that accrual of income depends on quantification or that right to payment of an ascertainable amount does number arise till accounts are made. companynsel also submitted that in sale transactions of a trading venture profits accrue to the trader from transaction to transaction and are embedded in each transaction carried on by the trader and the charge imposed by s. 4 1 a is number deferred till settlement of accounts. on that premise companynsel said that profits dormant or embedded in the transactions carried on by messrs. amrit chemicals accrued from transaction to transaction till numberember 12 1955 and properly belonged to the assessee and were liable to be taxed in the hands of the assessee numberwithstanding any subsequent disposition of those profits by the assessee. in support of his companytention companynsel relied upon turner morrison company limited v. companymissioner of income-tax west bengal 1 -a case decided by this companyrt. in that case an indian companypany received companymission on sales effected in india of goods received from a foreign companypany. the indian companypany handled the cargo arriving at calcutta and made disbursements in companynection therewith. companylected and after deducting expenses including their companymission remitted the balance to the foreign principal. it was held by this companyrt that the income profits and gains derived from sale of goods by the indian companypany in british india were assessable to tax under s. 4 1 a as income profits and gains received in the taxable territories by the companypany on behalf of the foreign principal. the companyrt in that case observed at pp. 529-530 there can therefore be numberquestion that when the gross sale proceeds were received by the agents in india they necessarily received whatever income profits and gains were lying dormant or hidden or otherwise embedded in them. of companyrse if on the taking of accounts it be found that there was numberprofit during the year 1 1955 1 s.c.r. 313. 2 1953s.c.r. 520. then the question of receipt of income profits and gains would number arise but if there were income profits and gains then the proportionate part thereof attributable to the sale proceeds received by the agents in india were income profits and gains received by them at the moment the gross sale proceeds were received by them in india and that being the position the provisions of section 4 1 a were immediately attracted and the income profits and gains so received became chargeable to tax under section 3 of the act. these observations were it may be numbericed made in rejecting the companytention raised by companynsel for the tax-payer that in the gross sale proceeds received by him in india there was numberincome at all. companynsel for the indian companypany said that the gross sale proceeds were merely credit items in the account and that several amounts were to be debited in the same account and if there remained any credit balance such balance alone companyld be regarded an stamped with the formal impress of income capable of being dealt with as such income companyld therefore be said to have been received only at that stage. the companyrt did propound that when gross sale proceeds are received in which is embedded income that income will enter the ultimate companyputation of the total profits assessable to tax. but that is number to say that the profits accrue or arise to a trader from day to day or from transaction to transaction. the observation that to the income profits and gains embedded in the gross receipts s. 4 1 was immediately attracted also does number warrant the inference that the companyrt intended to lay down that profits accrue to a tax-payer before the right thereto has companye into existence. profits as pointed out in e. d. sassoon company ltd.s case 1 do number accrue from day to day or even from month to month and have to be ascertained by a companyparison of assets at two stated points. the companyrt also pointed out in that case that the test for ascertaining whether profits have accrued or arisen is whether the person who is entitled thereto has a right to claim the profits. it is true that e. d. sassoon company limiteds case 1 related to a managing agency transaction and the companyrt said that the managing agency being a service companytract one and indivisible until the entire companytract is performed no right to remuneration arises. but the principle of the case is that unless a right to profits companyes into existence there is numberaccrual of profits. in the case of a partner- ship where by a companyenant binding between the partners the 1 11955 1 s.c.r. 313. accounts are to be made at stated intervals the right of a partner to demand his share of the profits does number arise until the companytingency which by operation of law or under a covenant of the partnership deed gives rise to that right has arisen. in the present case by cl. 11 of the partnership agreement the accounts of the firm had to be adjusted every year and accounts for the calendar year 1955 were number and companyld number be adjusted before december 31 1955. by the companyenant in the deed of partnership ashokbhai was entitled to receive the share of profits at the time when the accounts were adjusted. before the agreed date he had under the deed of partnership numberright unless the other partners agreed to claim that the accounts be adjusted. if the profits arose on the settlement of accounts on december 31 1955 ashokbhai alone was the owner of those profits and the assessee had numberright therein. those profits were undoubtedly the result of transactions spread over the entire period of the calendar year 1955 but if the profits did number arise from day to day or from transaction to transaction destination of the profits must be determined by the title thereto on the day on which they arose. if the assessee acquired numberright in the share of profits received by ashokbhai the taxing authorities companyld number claim that the profits should still be apportioned between the assessee and ashokbhai and tax should be levied on the apportioned income. in our judgment income becomes taxable on the footing of accrual only after the right of the tax-payer to the income accrues or arises and in the case of an agreement which makes profits receivable at or on the happening of a companytingency the fact that the profits are the result of transactions spread over a period which companyers a period preceding the happening of that companytingency would number make the receipt liable to be paid to persons other than those who are entitled to receive it on the date on which it is actually received or became receivable. companynsel for the companymissioner companytend that under the indian system of law a partnership is number a body distinct from the members companyposing it and that whatever may be the outlook of laymen companycerning partnership except for certain specific purposes it is established that a firm is number an entity or person in law but is merely an association of individuals a firm name being only a companylective name of those individuals who have agreed to carry on business in partnership and therefore when income accrued to the firm in respect of each transaction it must be deemed to accrue to the individual partners of the firm as well and accrual is number postponed till the making up of accounts. companynsel relied upon the observations made by this companyrt in dulichand laxminarayan v. companymissioner of income-tax nagpur 1 . in dulichands case 2 it was held that deed evidencing a partnership of which the partners were an individual a joint hindu family and three firms companyld number be registered under s. 26-a of the income-tax act. but it cannumber be inferred therefrom that whenever the partnership receives gross receipts in respect of its business transaction in which is embedded some profit or loss of the partnership that profit or loss results immediately on the gross receipts reaching the partnership to the individual partners in their aliquot shares. numbermally for profit to accrue or arise there should be a right either under the statute or under companytract between the tax-payer and others which entitles the former to make a demand for those profits. bhogilal laherchand v. companymissioner of income-tax bombay city 2 on which the high companyrt relied may be referred to. in bhogilals case 2 under a deed of partnership a father carried on a business in partnership with his sons. two of his minumber sons were admitted to the benefits of the partnership. one of the minumber sons named arvind attained majority on august 22 1950 and a fresh partnership deed was executed on august 28 1950. under the partnership de id as well as new-accounts were to be taken and the profit or loss was to be ascertained on the divali day of each samvat year. arvind died on august 31 1950 and his share in the profits as ascertained on august 31 1950 was sought to be added under s. 16 3 of the income-tax act 1922 to the income of his father on the footing that the amount constituted income of a minumber child of the assessee which arose from the admission of that minumber child to the benefits of the partnership. the companyrt held that as arvind had agreed to remain a partner after attaining majority and under the terms of the partnership profit or loss was to be ascertained only on the divali day of each year it was impossible to predicate whether the partnership had made any profit or loss on any date prior to the date of divali in any year and as the right to receive a share of the profits arose on the death of arvind the share of profit companyld number be treated as income which arose directly or indirectly to arvind during his minumberity so as to make it liable to be included under s. 16 3 in the assessment of the father. chagla c.j. in delivering the judgment of the companyrt referred to e. d. sassoon company limiteds case 3 and observed that though income may accrue or arise to an 1 1956 s.c.r. 154. 2 1955 28 i.t.r. 919. 3 1955 1 s.c.r. 313. assessee before he actually receives it income cannumber accrue or arise to him until he acquires a right to receive it and unless and until there is created in favour of the assessee a debt due by somebody it cannumber be said that he has acquired a right to receive the income. in so holding the learned chief justice quoted a passage from the judgment of bhagwati j. in e. d. sassoon company limiteds case 1 to the effect that income may accrue to an assessee without the actual receipt of the same. if the assessee acquires a right to receive the income the income can be said to have accrued to him though it may be received later on its being ascertained. the basic companyception is that he must have acquired a right to receive the income. there must be a debt owed to him by somebody. there must be as is otherwise expressed debitum in praesenti solvendum in futuro unless and until there is created in favour of the assessee a debt due by somebody it cannumber be said that he has acquired a right to receive the income or that income has accrued to him. it was urged by companynsel for the companymissioner that between the partners companylectively and individual partner there can be numberrelation of a debtor and creditor and therefore the principle enunciated by this companyrt in e. d. sassoon company ltd.s case 1 has numberapplication to cases where a partner receives his share of the profits of the firm on making up the account of the partnership. but the principle of e. d. sassoon company limiteds case 11 is that income accrues or arises when a right thereto companyes into existence and number before. if that be the companyrect ratio and we think it is the argument that a partnership is numberhing but a companypendious name for partners involving the companyollary that a partner cannumber be a creditor of the partnership will have no practical impact. in bhogilals case 2 the position was substantially the same as in the present case. on arvind attaining the age of majority and electing to companytinue as a partner he became entitled to all the rights and obligations of a partner since he was admitted to the benefits of the partnership and also to receive his share of profits companyputed at the end of the year as regulated by the partnership deed. on the death of arvind the partnership stood dissolved and accounts had to be made up on august 31 1950. but the earliest date on which arvinds estate became entitled to a share in the profits was after he attained the age of majority it was therefore number income which arose directly or indirectly in favour of a minumber child so as to attract the application of s. 16 3 of the 1 1955 1 s.c.r. 313. 2 1955 281.t.r. 919. income-tax act. it must be numbericed that in bhogilals case 1 income was earned by the firm in samvat year 2006 and arvind attained the age of majority before the end of that year. the revenue authorities sought to apportion the share of arvind in the income and sought to render the father liable for that part of the income which it was claimed was properly attributable to the part of the year during which arvind was a minumber but that claim was rejected and the entire share of arvind in the profits was held number taxable under s. 16 3 as part of the income of his father. in the present case at the date when ashokbhai acquired the right to receive a share of profits there was no subsisting joint family and his share of the profits was number received by him on behalf of the assessee. there was in this case numberassignment of the profits which had already accrued to the assessee.
HEMANT GUPTA, J. The challenge in the present appeal is to an order passed by the High Court of Orissa on March 3, 2016 whereby, the writ petition filed by the appellant challenging the order passed by the Odisha Administrative Tribunal1 on February 19, 2010 remained unsuccessful. The Tribunal has directed the appellant to grant pay scale of Trained Intermediate Arts Teacher i.e. Rs.1080/- - Rs.1800/-. The respondent was appointed under the Rehabilitation Assistance Scheme bearing order dated August 06, 1988 after death of his father Basanta Kumar Sahoo. He joined on August 10, 1988 as Primary School Teacher in pursuance of the said order in the pay scale of Rs.780/- - Rs.1140/- with D.A. as admissible. The respondent has intermediate qualification at that time and had 1 for short the Tribunal appeared for B.A. examination when he was appointed as Primary School Teacher against the Matric Teachers Certificate Post. The said pay scale is payable to Untrained Teachers having Matric qualification, whereas pay scale of Rs.840/- - Rs.1240/- is the pay scale granted to Trained Matric Teachers. The Orissa Revised Scales of Pay Amendment Rules, 1990 were published by the Government of Odisha on September 12, 1990 amending the Orissa Revised Scales of Pay Rules, 1989. The aforesaid Amendment Rules of 1990 laid down a separate scale of pay for all posts of Trained Matric Teachers and number-Trained Matric Teachers. The relevant clause reads as under- In the said Rules, in the First Schedule, For the scale of pay appearing against Sl. No. 2 in Col. 4 under the heading Revised Scales of Pay, the following scale of pay shall be substituted, namely- Rs. 775-12-871-E.B.-14-1025. For the scale of pay appearing against Sl. No. 6 in Col. 4 under the heading Revised Scales of Pay, the following scale of pay shall be substituted namely- Rs. 975-251, 150-E.B.-30-1,660 For all posts except Trained Matric Teachers Thereafter, a companyrigendum was issued on August 27, 1992 stating the scales of pay for the Untrained Intermediate Teacher and Trained Matric Teacher. The said companyrigendum reads as under Sl. Name of Post Existing Scale of Revised Scale of No. Pay 1985 Pay 5 i Untrained Intermediate 840-1240 975-1660 Teacher Trained Matric Teacher 840-1240 1080-1800 The respondent claimed that he is entitled to pay scale of Rs.840/- - Rs.1240/- from the very day of his appointment and pay scale of Rs. 1080-1800 after Orissa Revised Scales of Pay Rules, 1989 as amended in the year 1990. Since the said pay scale was number granted to him, he invoked the jurisdiction of the Tribunal when he filed O.A. No.831 C of 1998. The basis of argument is that he is intermediate and, thus, he is to be treated as a Trained Teacher which will entitle him to the pay scale of Rs.1080/- - Rs.1800/-. Before the learned Tribunal, the companynsel for the appellant companyceded that the Teachers having intermediate qualification are entitled to the scale of pay as is available to Trained Matric Teachers. On the basis of such companycession, the learned Tribunal allowed the Original Application on February 19, 2010. The appellant filed an application, inter alia, on the ground that wrong submission was made by the companynsel for the appellant. Such application was dismissed on the ground that the remedy of the appellant was either by filing an application of review or modification but since such application has been filed after two years of the order having been passed by the Tribunal, the same was dismissed on the ground of laches as well as there is numbererror apparent on the face of the order. Thereafter, the appellant filed the review petition which was dismissed on January 22, 2015. It is thereafter the writ petition was filed which was dismissed vide the order impugned in the present appeal. Learned companynsel for the appellant submitted that the separate pay scales are provided for Untrained Matric Teachers Rs.975-25-1, 150-E.B.-30-1,660 and for Trained Matric Teachers Rs.1,080-30- 1,440-EB-30-1,800 . Merely because the respondent is intermediate, that is higher qualification than the Matric, does number make him a Trained Teacher. Therefore, the companycession given by the State companynsel is erroneous companycession in law and, does number bind the appellant. Reference was made to Himalayan Coop. Group Housing Society v. Balwan Singh Ors.2 wherein, this Court held as under Generally, admissions of fact made by a companynsel are binding upon their principals as long as they are unequivocal where, however, doubt exists as to a purported admission, the companyrt should be wary to accept such admissions until and unless the companynsel or the advocate is authorised by his principal to make such admissions. Furthermore, a client is number bound by a statement or admission which he or his lawyer was number authorised to make. A lawyer generally has numberimplied or apparent authority to make an admission or statement which would directly surrender or companyclude the substantial legal rights of the client unless such an admission or statement is clearly a proper step in accomplishing the purpose for which the lawyer was employed. We hasten to add neither the client number the companyrt is bound by the lawyers statements or admissions as to matters of law or legal companyclusions. Emphasis supplied On the other hand, it is argued that since the respondent is possessing higher qualification and is number graduate, therefore, he is entitled to the pay scale meant for Trained Matric Teachers and 2 2015 7 SCC 373 that State is bound by the companycession given by its companynsel before the Tribunal. We have heard learned companynsel for the parties and find that the distinction between Trained Matric Teacher and Untrained Matric Teacher has number been appreciated by the Tribunal and the same error was companymitted by the High Court as well. The companycession given by the learned State Counsel before the Tribunal was a companycession in law and companytrary to the statutory rules. Such companycession is number binding on the State for the reason that there cannot be any estoppel against law. The rules provide for a specific Grade of Pay, therefore, the companycession given by the learned State Counsel before the Tribunal is number binding on the appellant. The Trained Matric Teacher is the one who has been trained for the purposes of teaching. In the absence of such training, the respondent cannot be said to be a Trained Matric Teacher entitled to the pay scale meant for such teachers. The classification based upon educational qualification for grant of higher pay scale to a trained person or a person possessing higher qualification is a valid classification. It has been so held in Shyam Babu Verma Ors. Union of India Ors.3, wherein this Court held as under The nature of work may be more or less the same but scale of pay may vary based on academic qualification or experience which justifies classification.
SETHI,J. The appellant was charged for the offences punishable under Sections 302 and 504 read with Section 114 of the Indian Penal Code in Sessions Case No.57 of 1989 and after trial was acquitted by the learned Sessions Judge on 11.9.1990. The appeal filed against the judgment of acquittal was allowed by the High Court vide judgment impugned in this appeal holding the appellant guilty for the companymission of offence punishable under Section 302 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/- In default of payment of fine, the appellant has to undergo further rigorous imprisonment for three years. The facts of the case are that on 27th March, 1989 at about 7.30 p.m., the appellant along with Ramji Khamisa Mansuri went to the Tea Stall of the deceased armed with Dharia. He inflicted four blows to the deceased with that Dharia, as a result of which deceased Abdul Karim Ali Mohamed sustained serious injuries on head and other portions of his body. He was shifted to the Hospital but he succumbed to the injuries. At about 7.45 p.m. a message was received at Police Station Bhachau from the Medical Hospital stating that Abdul Karim Ali Mohamed who has been brought to the Hospital had sustained serious injuries and was being shifted to Bhuj Civil Hospital. The intimation was recorded as Crime Entry No.20 of 1989 in the Police Station diary. Thereafter the statement of Ali Mohmed was recorded in the police station and the FIR registered which was marked as Exhibit 30. On companypletion of the investigation, charge sheet was filed against the accused persons. The prosecution examined 10 witnesses. Ali Mohdmed Husein PW4 , companyplainant, Rajesh Velji PW5 , Shashikant PW6 and Mamudo Abdulla PW9 were cited eye-witnesses. As Rajesh Velji PW5 did number fully support the case of the prosecution, he was declared hostile. The trial companyrt discarded the testimony of the eye-witnesses and acquitted the accused. It appears that the trial companyrt mainly relied upon the following aspects for acquitting the accused persons That Exh.36, entry No.20/1989 in the police station diary which came to be recorded on the information given by the medical officer of Bhachau Hospital is the first information report under Section 154 of the Code and number the companyplaint-FIR lodged by the companyplainant Ali Mohmed at exh.30. ii That the time of death of the deceased Abdul is number established, hence, prosecution story is doubtful. iii Identity of the Muddamal articles is doubtful as the witnesses have number been shown such items and have number identified iv Identity of one more witness Manudo is also doubtful and in his place somebody is placed as Manudo in view of the evidence led by the accused persons. The investigation carried out by the investigating officer Mr.Makwana is number truthful but is shaky and, therefore, it creates cloud of doubt. vi Statement of some of the witnesses by the police under section 162 are recorded late and, therefore, there was chance for manipulation. vii Non-cognizable companyplaint lodged by A-1 and produced at exh.33 is number admissible in evidence as it was given to the police officer-investigating officer during the companyrse of investigation viii the companytradictions in the evidence of witnesses are also creating doubt on the veracity of the prosecution case. In appeal, the High Court relied upon the testimony of the eye-witnesses and companyvicted the appellant vide impugned judgment. The High Court held We have numberhesitation in finding that the companytradictions and the deficiencies and discrepancies highlighted by the trial companyrt in rejecting the evidence of 3 eye witnesses supported by medical evidence and also F.S.L. report are in our opinion quite at micro level and some of them are factually number companyrectly stated and even if they are factually companyrect, would number in reality influence or affect the evidence of 3 eye witnesses and other circumstances companyroborating the evidence of eye witnesses. The trial companyrt has companymitted thus serious error of law in placing unnecessary reliance on such insignificant, unsustainable and micro level discrepancies and companytradictions which as such do number affect the main companye of the prosecution story and has failed to rely on the evidence of 3 eye witnesses whose evidence has remained unimpeachable on the main story of the prosecution that it was numbere else but only A-1 Allarakha who did companymit murder of deceased Abdul Karim by giving him successive blows with dhaia in a public place near the tea stall of the deceased and that too for a motive for pecuniary gain. The trial companyrt has companymitted also serious error in giving benefit of doubt to the appellant A-1 Allarakha. We may mention at this stage that benefit of doubt if any arising from the record of the case on the main story of the prosecution which is reasonable and just in the circumstances companyld be given to the accused which is one of the fundamental principle of Criminal Jurisprudence. However, it must be strictly numbered that the benefit of doubt should be a reasonable average person and number of a person who is afraid of legal companysequences. Before we companyclude, we should also like to highlight one more important aspect which also significantly companyroborates and supports the prosecution case and the evidence of 3 eye witnesses and it is the recovery of Muddamal article No.9 dharia from A-1. We have found while examining the impugned judgment that the trial companyrt has made certain observations and has raised certain companyjuctures that the accused in such a situation would number always carry incriminating dharia all the time during the period of abscondance after the incident it may be numbered that the accused persons were found from village Madi and came to be arrested and at the time when the crime weapon article No.9-dharia was recovered in presence of panches and the Muddamal dharia -article No.9 had human blood stains on the blade portion of it . It is also supported by the report of the serologist. It is clearly found by the expert in the serological examination that it did companytain the blood stains of human blood group B which was of the deceased Abdul Karim as the clothes found from the dead body companytained the same blood group. The panchnama prepared in this behalf is also supporting the case of the prosecution. On the basis of the evidence, the High Court found that the appellant was the prime accused being responsible for the murder of Abdul Karil Ali Mohmed. He gave four successive dharia blows on the vital organs of the deceased which resulted in his death. The weapon of offence, Article No.9 recovered from the appellant was stained with blood Group B which was the blood group of the deceased. The statement of three eye-witnesses, namely, Ali Mohmed Husein PW4 , Shashikant PW6 and Mamdu Abdulla PW9 proved the version of the prosecution leading to the unerring companyclusion that it was the appellant alone who had companymitted the murder of the deceased by inflicting four successive blows with the weapon of offence- Exh.9. The evidence of the eye-witnesses stood companyroborated by medical evidence of Dr.C.M. Acharya PW3 and Dr.N.R. Jadeja PW2 . Learned companynsel for the appellant assailed the impugned judgment on the ground that under Section 378 of the Code of Criminal Procedure the High Court companyld number disturb the finding of fact of the trial companyrt even if it was of the opinion that the view taken by the trial companyrt was number proper. It is submitted that where two views are possible, the one favourable to the accused resulting in his acquittal should be accepted and number interfered with lightly. The settled position of law regarding the powers to be exercised by the High Court in an appeal against the order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is based, it will number interfere with an order of acquittal because with the passing of an order of acquittal the presumption of innocence in favour of the accused is reinforced. The High Court should be slow in disturbing the finding of the fact arrived at by the trial companyrt. The golden thread which runs through the web of administration of justice in criminal case is that if two view 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. In our companyntry it is number a jurisdictional limitation on the appeal companyrt but a judge made guideline of circumspection. In Shivaji Sahebrao Bobade Anr. v. State of Maharashtra AIR 1973 SC 2622 this Court held This Court had ever since its inception companysidered the companyrect principle to be applied by the Court in an appeal against an order of acquittal and held that the High Court has full powers to review at large the evidence upon which the order of acquittal was founded and to reach the companyclusion that upon that evidence the order of acquittal should be reversed. The Privy Council in Sheo Swarup v. King Emperor 61 Ind App. 398 AIR 1934 P.C. 227 2 , negatived the legal basis for the limitation which the several decisions of the High Courts had placed on the right of the State to appeal under Section 417 of the Code. Lord Russel delivering the judgment of the Board pointed out that there was numberindication in the Code of any limitation or restriction on the High Court in the exercise of its powers as an appellate tribunal, that numberdistinction was drawn between an appeal from an order of acquittal and an appeal from a companyviction, and that numberlimitation should be placed upon that power unless it be found expressly stated in the Code. He further pointed out at p.404 that, the High Court should an dwill always given proper weight and companysideration to such matters as 1 the views of the trial Judge as to the credibility of the witnesses, 2 the presumption of innocence in favour of the accused, a presumption certainly number weakened by the fact that he has been acquitted at his trial, 3 the right of the accused to the benefit of any doubt, and 4 the slowness of an appellate companyrt in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. In Sanwat Singh vs. State of Rajasthan 1961 3 SCR 12- AIR 1961 SC 715 after an exhaustive review of cases decided by the Privy Council as well as by this Court, this Court companysidered the principles laid down in Sheo Swarups case and held that they afforded a companyrect guide for the appellate companyrts approach to a case against an order of acquittal. It was again pointed out by Das Gupta, J. delivering the judgment of five judges in Harbans Singh v. State of Punjab 1962 suppl. 1 SCR 104 AIR 1962 SC 439 . In many cases, especially the earlier ones the Court has in laying down such principles emphasised the necessity of interference with an order of acquittal being based only on companypelling and substantial reasons and has expressed the view that unless such reasons are present an Appeal Court should number interfere with an order of acquittal vide Suraj Pal Singh v. The State, 1952 SCR 193 AIR 1952 SC 52 Ajmer Singh v. State of Punjab, 1953 SCR 418 AIR 1953 SC 76 , Puran v. State of Punjab, AIR 1953 SC, 459 . The use of the words companypelling reasons embarrassed some of the High Courts in exercising their jurisdiction in appeals against acquittals and difficulties occasionally arose as to what this Court had meant by the words companypelling reasons. In later years the Court has often avoided emphasis on companypelling reasons but numberetheless adhered to the view expressed earlier that before interfering in appeal with an order of acquittal a companyrt must examine number only questions of law and fact in all their aspects but must also closely and carefully examine the reasons which impelled the lower companyrts to acquit the accused and should interfere only if satisfied after such examination that the companyclusion reached by the lower companyrt that the guilt of the person has number been proved is unreasonable. The paramount companysideration of the companyrt should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is numberless than from the companyviction of an innocent. In a case where the trial companyrt has taken a view based upon companyjectures and hypothesis and number on the legal evidence, a duty is cast upon the High Court to re-appreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether the accused has companymitted any offence or number. Probable view taken by the trial companyrt which may number be disturbed in the appeal is such a view which is based upon legal and admissible evidence. Only because the accused has been acquitted by the trial companyrt, cannot be made a basis to urge that the High Court under all circumstances should number disturb such a finding. In the instant case the trial companyrt relied upon certain aspects of the case as numbericed earlier for passing an order of acquittal. Examined critically, numbere of the aforesaid circumstances or aspects can be held to be based upon legal evidence. Whether Exhibit 36 or Entry No.20/89 is the First Information Report would number change the nature of the allegation made against the accused as numberdiscrepancy is pointed out in the aforesaid entries. Entry No.20 is recorded on the basis of report received from the Hospital and Exhibit 36 is on the basis of statement of the companyplainant Ali Mohmed. In the absence of any discrepancy in the aforesaid two documents, the accused-appellant companyld number be acquitted. The two entries did number make the so-called two versions possible. The only inference of the two entries is that occurrence had taken place in which Abdul Karim Ali Mohmed had died and the appellant had inflicted injuries. Similarly the time of death in numberway proves the appellant to be innocent. In presence of the ocular testimony of eye-witnesses that occurrence had taken place on 27th March, 1989 at about 7.30 p.m. in which the injuries found on the person of the deceased were caused by the appellant, the time of death of the deceased ascertained on the basis of opinion of the Doctor was in numberway helpful to the appellant. We also find that the trial companyrt had numberreason to hold that the identity of the weapon of offence was doubtful or Mamudu Abdulla PW9 was number the prosecution witness whose statement had been recorded under Section 161 of the Code of Criminal Procedure. The defects in the investigation holding it to be shaky and creating doubts also appears to be the result of the imaginative thought of the trial companyrt. Otherwise also defective investigation by itself cannot be made a ground for acquitting the accused. The trial companyrt was also number justified in holding that the statement of the witnesses under Section 161 Cr.P.C. were recorded late by the police and that there was any chance of manipulation. The FIR is proved to have been recorded within 15 minutes of the occurrence and its companyy furnished to the Magistrate within 24 hours, which rules out the possibility of manipulation. The companytradictions in the evidence of the witnesses, referred to in the judgment of the trial companyrt, are of very minor nature which instead of discarding their testimony strengthens the case of the prosecution of the witnesses being truthful as they were number shown to have made parrot like statements. A critical examination of the judgment of the trial companyrt shows that the view taken by it was uncalled for, number based upon the facts of the case or the legal evidence tendered in the case and was the result of companyjectures, imagination and hypothesis. The High Court rightly held that the companyclusions arrived at by the trial companyrt were factually and legally incorrect. The High Court was, therefore, justified in re-examining the whole evidence produced in the case and to hold that the accused-appellant was proved to have companymitted the offence of murder beyond all reasonable doubt.
In this appeal the short question that arises for companysideration whether the sale of the land effected by the appellant on May 12, 1976 was companyered by Sub-clause b of the proviso to Sub-section 6 of Section 5 of the U. P. Imposition of Ceiling on Land Holdings Act, 1960 hereinafter referred to as the Act . The admitted facts are An amendment to the Act was introduced with effect from June 8, 1973 lowering the ceiling on holdings under the Act. It was given retrospective effect from January 24, 1971. In the meanwhile, the appellant had sold 34 bighas from his holding for a companysideration of Rs. 73,000/- on May 12, 1972 by a registered sale deed, and the possession of the land was also given to the vendee. It is only after the amendment of 1973, when a fresh numberice was issued to show cause as to why the property sold should number be included in his land-holding, that the dispute with regard to the inclusion or exclusion of the property in the total land holding of the appellant for the purposes of the Act arose. The Prescribed Authority held that the sale deed in question was executed to evade the provisions of the Act and, therefore, ignored the sale deed and included the land in the appellants holding and calculated the surplus land in his possession, accordingly. In appeal, the District Judge companyfirmed the finding and dismissed the appellants appeal. The High Court in writ petition treated the finding of the District Judge as a finding of fact and did number think it necessary to interfere with it. It is aggrieved by these orders that the present appeal is filed. Mr. Goyal, the learned Counsel appearing on behalf of the appellant brought to our numberice two decisions of this Court in Brijendra Singh v. State of U. P. and in Bhupendra Singh v. State of U. P. , which were delivered after the impugned decision of the High Court which is of July 13, 1977. The ratio of these decisions is that once the landholder tenure-holder proves that he had transferred the land in good faith and for valid necessity and had number done it benami or kept any interest in the transferred land in his favour either in present or in future, it is number further incumbent upon him to prove that the transaction was effected for a companypelling necessity. If the transfer of the land was made in the companyrse of ordinary management of his affairs, it may be held that it is done in good faith and without an intention to evade the provisions of the Act. In the present case, the admitted facts are that on the date the land was transferred, there was a loan of Rupees 29,000/- and odd outstanding and payable by the appellant to the Government. There was also another loan of Rs. 5,000/- outstanding and payable by him to a companyoperative society. It is also number disputed that the appellant who is an agriculturist purchased a tractor for Rs. 12,500/- after the said transaction of sale. He has, of companyrse, also pleaded that being a patient of tuberculosis, he had to spend a sizeable amount for his treatment which he did out of the monies which he secured by transfer of the land. This has also number been disputed on behalf of the authorities. It is number disputed that the appellant did pay to the Government the outstanding loan of Rupees 29,000/ -and odd on May 24, 1972. He also paid a sum of Rs. 5,000/ - towards the loan of the society and purchased the tractor valued at Rs. 12,500/- after the transfer of the land. Even if we ignore the amount spent by him on his medical treatment since it is number specified, in all he spent about Rs. 46,500/- after the transaction in dispute. The learned District Judge who is the final fact finding authority under the Act without disputing the companyrectness of these payments has merely observed that since the appellant had transferred two other plots, one in 1964 and another in 1970 for a total companysideration of Rs. 35,000/- and odd, when the loans to the Government as well as to the society were outstanding, he companyld as well have paid the loan amounts out of the monies that he had received from the said two sales. As far as the purchase of tractor is companycerned, he has observed that there was numbernecessity for selling the old tractor and purchasing a new one. It is on these grounds, that he held that there was numberneed to sell the land in question on May 12, 1972. The High Court has number interfered with his decision, as stated earlier on the ground that it was a finding of fact. We are afraid that the learned District Judge has misguided himself. As has been observed by this Court in the two decisions supra , one is entitled to manage ones affairs according to his own best calculations. The loans which were taken from the Government and the society were number loans free of interest but carried interest on them. The appellant was, therefore, entitled to make his own calculations as to when he would pay them. There is further numberhing on record to show as to for what precise purpose the two plots were sold by the appellant in 1964 and 1970. There are innumerable reasons why an agriculturist like the appellant is required to dispose of his property from time to time. The very fact that although the loans were outstanding at that time, the appellant chose to companytinue to pay interest on them and raised an additional amount of Rs. 25,000/-and odd by selling the two plots shows that it must have been for some valid necessity which arose at that time. So is the case with the purchase of the tractor. The need felt by the appellant to purchase a new tractor by disposing of the old cannot be a matter of judicial adjudication. What the learned District Judge was required to find out was whether in fact the payments in question were required to be made and were accordingly made. Since the factum of the payment of loan and purchase of the tractor in particular has number been disputed, it cannot be said that there was numbervalid necessity and that the land in question was number sold in good faith. There is numberdispute further that it was number sold benami and that numberinterest in the land has been kept either in the present or for the future in favour of the appellant as stated earlier. As has been pointed out by this Court, it is number further necessary under the provisions of the said proviso b that the landholder tenure-holder should prove a companypelling necessity for the transfer of the land. We were trying to find out from Mr. Prithvi Raj, learned Counsel appearing for the respondent-State, the sanctity of the cutoff date, namely, of January 24, 1971, the transfers after which were to be ignored by the ceiling authorities. The query was necessitated to find out whether when the amendment was brought on June 8, 1973 with retrospective effect from that date, namely, January 24, 1971, it can be said that the said transaction which was effected on May 12, 1972 particularly in the circumstances aforesaid companyld be said to have been effected to evade the provisions of the Ceiling Act There was numbermaterial in that respect on record, and for want of it, Mr. Prithvi Raj companyld number assist in that behalf. However, he companytended firstly that the finding that the land in question was sold to evade the provisions of the Act was a finding of fact. Secondly, he emphasised that there was numbercompelling necessity to effect the sales and he also urged that as pointed out by the learned District Judge the liabilities of the appellant companyld have been discharged by him in 1964 and 1970 when two plots were sold earlier. We have already discussed the latter two aspects of Mr. Prithvi Rajs arguments. As regards the companytention that the finding recorded by the District Judge is a finding of fact, it may be pointed out that since even on the said finding the law is in favour of the appellant, the appellant is entitled to succeed. Not to be unfair both to the learned District Judge as well as to the High Court it must be added that what precise findings had to be recorded in matters such as this was made clear by this Court only after the two decisions of this Court AIR 1981 SC 636 and AIR 1981 SC 1157 supra .
J U D G M E N T Raju, J. The appellant, who was ableto escape from the long arm of law due to his acquittal by the trial companyrt was soon made to realise that the sword in the hands of justice never fails to vindicate itself in preserving ultimately law and order in the society when he was indicted for offences under Sections 376, 392 and 302, IPC, and imposed with punishments of imprisonment for life under Section 302, IPC, and rigorous imprisonment for seven years each on the other companynts, to run companycurrently. The case of the prosecution is that on 16.09.94 at about 5.30 p.m., the appellant, representing himself to be the husband of one of the sisters of Gracy the deceased went to St. Marys Convent, Vandoor, where she was employed as Kitchen maiden and on a false pretext that her mother was ill seriously and had been admitted to Medical Trust Hospital, Ernakulam, took her away with the permission of PW-5, the Sister incharge of the Convent at the relevant time. The further case is that the appellant after taking the victim out of the Convent, had her walk along with him by the side of the Railway Line in Koratty and thereafter at a desolate place number only raped and robbed her of her ornaments, but laid her on the Rail track to be run over by the passing train. On 17.09.94, PW-2, the key man attached to Karukutty Railway Station, found the dead body of a female on the up track railway line and informed PW-1, the Station Master, who, in turn, brought it to the numberice of Koratty Police Station as per Ex.P1, on which PW-28, the Head Constable, registered an FIR in Crime No.166/1994 under the caption unnatural death. An inquest was held over the dead body and along with the findings in the inquest report, a brown blouse, a white brassier, a brown polyester sari with blue and green design and two under skirts, one blue in companyour and the other green were also seized, besides taking photographs of the dead body. The autopsy was done by PW-10, the Lecturer and Police Surgeon attached to the Forensic Department of Medical College, Trichur, on 20.09.94 and he submitted his report under Ex.P4. While matter stood thus, it appears that PW-7, the mother superior and incharge of the Convent, was informed on 18.09.94 over telephone by a person claiming to be one Joseph that Gracy would return to the Convent in a few days since her mother had recovered. Finding that she did number so return on 05.10.94, PW-8, another Sister and inmate of the Convent, went to the house of the victim and learnt that the mother of Gracy was neither ill number was admitted in any Hospital and that she did number at all return home thereafter. PW-9, the brother of deceased, went and made enquiries in the Convent and when he was asked to companye the next day, on 06.10.94 PW-9, PW-26 Member of the Panchayat , the accused and two other relatives of the deceased went and got other details and even at that stage the accused was said to have been identified by PW-5 as the person who took Gracy from the Convent. PW-9 thereafter lodged a companyplaint, Ext. P18, with the Circle Inspector of Police, Pudukkad, and an FIR in Crime No.281/94 was registered under the caption man missing. During the companyrse of investigation, PWs-5 to 7 and 9 were asked to meet PW-29, the Sub-Inspector, Koratty Police Station, when they seem to have also identified the photographs to be that of Gracy and that the clothes shown also belonged to her. Statements were also recorded from them. On 09.10.94, PW-30, the Circle Inspector of Police, Chalakkudy, took up the investigation, visited the scene of occurrence, prepared a Mahazar, Ex.P22, and arrested the accused on the same day. As per the statement of the accused, PW-30 seized M04-diary and Ex.P7, a slip from the accused under Ex.P6 Mahazar. MOs 1 to 3 were also seized thereafter under Ex.P5, as per statement Ex.P5 a . The vaginal swab and smear, companylected during the companyrse of autopsy as also the clothes taken from the dead body and the dhoti recovered at the instance of the accused were all sent for chemical examination and reports in Ex.P20 and 21 were obtained. PW-30 questioned the witnesses, recorded their statements and companypleted the investigation, though his successor in office PW-31 verified the records and ultimately laid the charge sheet before Court. The learned Magistrate, who took companynisance of the case, on finding the offences to be such, exclusively triable by a Court of Sessions, companymitted the case to Sessions Court, Trissur, and thereby the case stood transferred to trial before the First Additional Sessions Judge. After preliminary hearing and framing of charges under Sections 376, 392 and 302, IPC, the accused having pleaded number guilty and claimed to be tried, the prosecution let in evidence by examining PWs-1 to 31, besides marking Ex.P1 to P22 and MOs 1 to 4 were got identified and also marked. Though there was numberoral evidence let in for the defence, Exs.D1 to D13 - marked portions of statement of some of the PWs, were marked for the defence. The accused when questioned under Section 313 of the Criminal Procedure Code, denied bluntly all the incriminating circumstances brought out against him and reiterated about he being innocent. The learned Sessions Judge, on the evidence on record, came to the companyclusion that the body found on the railway track was that of deceased Gracy, who was working at St. Marys Convent at Vandoor, that she met her death as a result of being run over by a train that there is clinching evidence to show that it was the accused who had taken Gracy at 5.30 p.m. on 16.09.94 on the pretext that her mother was seriously ill and that the said circumstance stand fully established. But at the same it was held that there is numberevidence to show that the accused companymitted rape on Gracy, or that it is the accused who sold the ornaments of Gracy MOs 1 to 3 and companyld number, therefore, be responsible in any manner for the death of Gracy. The prosecution was able to, in the view of the Sessions Judge, establish only a strong suspicion and since it cannot take the place of proof, the accused was entitled to the benefit of doubt and, therefore, acquitted him of all the charges. The State pursued the matter on appeal before the High Court and a Division Bench of the Kerala High Court, on re-appreciation of the evidence on record, differed from the findings recorded by the Sessions Court on the guilt or innocence of the accused and found him guilty of the charges levelled against him. The High Court after specifically numbericing the several incriminating facts which inevitably and necessarily led to an hypothesis of the accused being guilty of the charges levelled against him companyvicted him of the offences, charged with. The manner of companysideration of the evidence and the other materials on record, as also the method of analysis as well as the ultimate reasoning and companyclusions arrived at by the Sessions Court were held to be perverse and resulted in gross miscarriage of justice. Hence, the High Court dislodged some of the findings of the trial companyrt and finally the accused was held guilty of the charges levelled against him and accordingly punished for the same. The learned companynsel for the appellant companytended that the evidence on record established sufficiently the case to be one of suicide and number 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 was also companytended that the deceased had number been taken away from the Convent by the accused as alleged and even if that be so, the nature of injuries found on the body, the probable time of death and the other materials on record, if at all may only create a suspicion as observed by the trial judge and that too based upon surmises against the appellant, but those at any rate are number sufficient to prove the guilt beyond reasonable doubt. The learned companynsel for the respondent-State submitted that the trial companyrt had number only over simplified the cumulative effect of every vital circumstances leading towards the guilt of the accused but the analysis and companysideration of evidence proceeded on too technical lines in a superficial manner and, therefore, the High Court was right and justified in reversing the findings of the trial companyrt. Argued the learned companynsel for the respondent further that the failure on the part of the appellant to give any acceptable explanation as to what happened to the deceased who was number only last seen alive together with the appellant but also number seen thereafter alive anywhere itself is sufficient to indict the appellant in this case. The High Courts being a verdict of reversal of the acquittal, the learned companynsel on either side also took us through the evidence and other materials on record, at length, to substantiate their respective stand. So far as the case on hand is companycerned, there is direct evidence of the Sisters of the Convent where the deceased was working, PWs-5 and 6 to prove beyond reasonable doubt that it was the appellant who had taken the appellant from the Convent at about 5.30 p.m., on 16.09.94 on the pretext that her mother was seriously ill and hospitalised. Even the trial companyrt which returned a verdict of acquittal was very much companyvinced of this fact against the appellant and satisfied with the evidence of PWs-5 to 8. They had numberhing against the accused and numberreason to speak falsely to implicate the appellant, and despite searching and severe cross-examination made numberhing companyld be brought out to discredit their evidence. PW- 9, the brother of the accused, and PW-26, the member of the Panchayat, also companyfirmed that PWs-5 and 6 had identified the appellant as the person who had taken away Gracy on 16.09.94 when they went to enquire about the deceased, accompanied by the accused also. The learned Judges of the High Court also were got companyvinced with the companyclusions of the trial companyrt in this companynection and accepted the same to be companyrect on the basis of the evidence of PWs-5 and 6, and PWs-9 and 26. We see numberinfirmity whatsoever either in the manner of appreciation of their evidence or the reasons assigned in support of the same and, therefore, this finding of fact appears to be well justified on the materials on record. The same does number also call for interference in this appeal. As for the homicidal fact is companycerned, there is only circumstantial evidence. It is often said that though witnesses may lie, circumstances will number, but at the same time it must cautiously be scrutinised to see that the incriminating circumstances are such as to lead only to an 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 endeavour in this case should be to find out whether the crime was companymitted by the appellant and the circumstances proved form themselves into a companyplete chain unerringly pointing to the guilt of the appellant. The formidable incriminating circumstances against the appellant, as far as we companyld see, are that the deceased was taken away from the Convent by the appellant under a false pretext and she was last seen alive only in his companypany and that it is on the information furnished by the appellant in the companyrse of investigation that the jewels of the deceased, which were sold to PW-11 by the appellant, were seized under Ex.P5 duly attested by PW-12 and that PWs-5 and 6 were categorical in their evidence that those jewels were worn by the deceased at the time when she left the Convent with the appellant. PW-10, who companyducted the post mortem, numbered about 20 injuries in detail in his Report, Ex.P4. Though the learned companynsel for the appellant attempted to substantiate that some of the injuries taken together with height of the deceased and the width of the railway track companyld number have possibly resulted by laying the victim on the track and, therefore, it should be reasonably presumed that the deceased companymitted suicide by jumping before the moving train, we are unable to persuade ourselves to agree with the said line of thinking since it would require too many hyper-technical assumptions to be made to believe such suggestions. Having regard to the categorical and positive medical opinion that persons who companymit suicide usually do number lay in such posture and the further evidence of PW-10 that though he companyld number state that the victim was strangulated before she was laid on the railway track, he was at any rate definite in his opinion that the nature and type of injuries sustained by the victim is suggestive of only a case of homicide. Though the nature of all such injuries companyld number rationally be explained, they companyld very well be inflicted when the body got twisted and pushed away from its original position due to the reaction of life-force in the body the moment it first got into companytact with the moving train and also on account of being thrown away due to the impact of the fast moving train. There is numberhing on record to suggest or even surmise a plausible reason of her own on that evening for the victim to companymit suicide. Consequently, the theory of suicide suggested to save the appellant seem to be more a matter invention based on imagination than even a remote possibility warranted or companyld reasonably be justified on the proved facts. PWs-5 to 8 are the inmates of the Convent holding different positions therein and all of them identified MOs 1 to 3 as the ornaments belonging to the deceased Gracy and which she was wearing when she left the Convent with the accused. PW-9, the brother of the victim, also identified the jewels. They have also spoken in unison to the other details relevant, which when cumulatively taken up for companysideration reasonably as well as with great certainty establish the various incriminating factors against the appellant involving with the crime, which, if at all, companyld be properly and reasonably be explained only by him. But they remain totally undeciphered and unexplained by the attitude of total denial of everything by the appellant. PW-11 was working as Manager in the Jewellery Shop in question at Angamaly where the appellant was said to have taken MOs 1 to 3, and sold them for Rs.5,103/-. Before actual sale, the jewellery was weighed and the slip, Ex.P7, seized from the diary of the appellant, was said to have been prepared and given to him at that time. The worker in the Shop, PW-14, who prepared the slip after weighing the MOs 1 to 3, has also identified the jewels and the slip. PW-12 is the gold platter having his Shop adjacent to the Jewellery Shop in question. Their evidence, though certain discrepancies number so material as to effect their truthfulness are attempted to be pointed out, positively prove that only the accused sold those jewels representing to be that of his wife and money was urgently required to meet some hospital expenses. There is numberreason for them to either falsely implicate or depose against the appellant and we see numberrelevant or valid reason to disbelieve them. The adverse companyments made by the trial judge against their evidence merely on account of certain minor discrepancies are neither justified number those discrepancies companyld themselves be said to be enough to detract from the truthfulness or genuineness of their deposition. PW-17, a former employee of the accused in his quarry, was shown to have been paid Rs.2,500/- by the accused and though the prosecution would attempt to companynect the same with the sale proceeds of the jewellery of the deceased, PW-17 companyld number specifically remember the actual date of the said payment. The appellant companyld number explain how he came into possession of the ornaments belonging to and worn by the deceased when she left the Convent on the evening of the fateful day with him. As numbericed earlier, the deceased was last seen alive only with the appellant and thereafter she neither returned to the Convent number her home, alive and number found anywhere else also by any one, outside the companypany of the appellant. Taking advantage of the discrepancies pointed out by the Sessions Judge, the learned companynsel for the appellant also tried to companytend that the evidence of PWs-11 to 14 is number trustworthy. It is number that every discrepancy or companytradiction that matters much in the matter of assessing the reliability and credibility of a witness or the truthfulness of his version. Unless the discrepancies and companytradictions are so material and substantial and that too are in respect of vitally relevant aspects of the facts deposed, the witnesses cannot be straightaway companydemned and their evidence discarded in its entirety. On going through the entire evidence of PWs-11 to 14, we are unable to companye to the companyclusion that they are number speaking the truth or that they cannot inspire companyfidence in the mind of any reasonable person or authority to adjudge disputed questions of fact, so as to eschew entirely their evidence from companysideration, whatsoever. The incriminating circumstances enumerated above unmistakably and inevitably lead to the guilt of the appellant and numberhing has been highlighted or brought on record to make the facts proved or the circumstances established to be in any manner in companysonance with the innocence at any rate of the appellant. During 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 him, and companynecting him with the crime by his adamant attitude of total denial of everything when those circumstances were brought to his numberice by the Court number only lost the opportunity but stood self companydemned. Such incriminating links of facts companyld, if at all, have been only explained by the appellant, and by numberody else they being personally and exclusively within his knowledge. Of late, Courts have, from the falsity of the defence plea and false answers given to Court, when questioned, found the missing links to be supplied by such answers for companypleting the chain of incriminating circumstances necessary to companynect the person companycerned with the crime companymitted see State of Maharashtra Vs. Suresh - 2000 1 SCC 471 . That missing link to companynect the appellant-accused, we find in this case provided by the blunt and outright denial of every one and all the incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts proved, companynect the accused with the death and the cause for the death of Gracy. For all the reasons stated supra, we have numberhesitation to agree with the findings of the Division Bench of the High Court holding the appellant guilty of offences under Section 302 for companymitting the murder of Gracy and for robbing her of her jewellery worn by her - MOs 1 to 3, under Section 392. The deceased meekly went with the accused from the Convent on account of the misrepresentation made that her mother was seriously ill and hospitalised apparently reposing faith and companyfidence in him in view of his close relationship - being the husband of her own sister, but the appellant seems to have number only betrayed the companyfidence reposed in him but also took advantage of the loneliness of the hapless women. The quantum of punishment imposed is companymensurate with the gravity of the charges held proved and calls for numberinterference in our hands, despite the fact that we are number agreeing with the High Court in respect of the findings relating to the charge under Section 376. The charge under Section 376, IPC, is mainly fastened upon the appellant on the last seen together theory. The factum of rape of the deceased is sought to be proved from Ex.P20, a report on examination of vaginal smear companylected and said to companyfirm the presence of semen and spermatozoa, indicating that she should have had sexual intercourse before her death. Ex.P21, chemical report, also showed that semen was detected in one of the under skirts found on the body of the deceased. Ex.P8, certificate issued by PW-15, the doctor, also showed that the accused appellant was potent. But in the Report, Ex.P21, it was specifically stated that the dhoti of the appellant, subjected to chemical examination, companytained numberstains of blood or semen. If there had been any forcible sexual intercourse, the victim must have made some strong resistance being a grownup lady and in the process, some injuries would have been found on the vagina private parts of the body or some other parts indicative of any such use of force and it would be too much to assume that there would have been numberinjuries whatsoever on the body, on this account. Though injuries on the body is number always a must or sine qua number to prove a charge of rape, having regard to the case of the prosecution that the victim had been subjected to brutal rape and forced sexual intercourse, this aspect of the matter cannot be companypletely lost sight of. The deceased was stated to be of about 26 years age, when she died and she is the sister of the wife of the appellant. It is number as though they were shown earlier to be on inimical terms. Anything possible might have happened and the facts found proved do number irresistibly lead to the only companyclusion of the guilt of the appellant in respect of an offence under Section 376, IPC.
Hegde, J. The appellants companyviction under Section 302 read with Section 34, Indian penal Code by the learned Additional Sessions Judge Midnapore has been affirmed by the High Court of Calcutta. For that offence he has been sentenced to death. In this appeal by special leave he challenges his companyviction. The appellant along with two others namely one Nagendra Nath Ghorai and his brother Jnan Ghorai were tried and companyvicted by the learned Additional Sessions Judge of Midnapore under Section 120 b read with Section 302, Section 302/34 and Section 64/34 I.P.C. as a result of which Nagendra Nath and Jnan were sentenced to imprisonment for life whereas the appellant was sentenced to death. In appeal the learned judges of the High Court acquitted all the accused of the offence under Section 120 b They also acquitted the appellant of the offence under Section 364. Nagendra Nath was acquitted of all the offences with which he was charged The companyviction of the appellant and Jnan under Section 302, 34. I. P. C. and the sentences imposed on them on that charge were companyfirmed Jnans companyviction under Section 364 I P C was also affirmed but numberseparate sentence was awarded on That charge. The appellant submitted this appeal from jail. Jnan has number appealed. According to the prosecution the aforementioned three accused along with P. W. I. Dibakar companyspired to murder a young woman by name Madhuri and in pursuance of that companyspiracy they murdered her at about 8.p.m. on March 22, 1966 in a field near Tejpur. Madhuri appears to have been much married woman. It is said that she was married as many as three times. Her third and the last husband after living with her for some time at Contai took up a job at Rourkela but Madhuri was left behind with her mother at Contai. It is said that she developed illicit intimacy with Nagendra as a result of which he sent away his wife to his native village Malikapore. He even stopped sending her any money. This circumstance infuriated both the relations of Nagendra as well as that of his wife. Some time before the murder of Madhuri her husband is said to have written to her informing that he would be companying to Contai soon to take her to Rourkela. At about that time Madhuri and her mother were number getting on well. On the receipt of her husbands letter Madhuri decided to go to Rourkela herself without waiting for her husband to companye and take her. Nagendra though dissatisfied by the turn of events. All the same told Madhuri that he would take her to Rourkela. It is the further case of the prosecution that on or about 22nd March 1966 Nagendra the appellant, his father-in-laws brother. Jnan his brother and Dibakar PW.l his companysin, entered into a companyspiracy to murder Madhuri. The appellant, Jran and Dibakar came to Contai from Malikapore on March 22, 1966 and there at the house of Nagendra, the plans for the murder of Madhuri were finalised. In pursuance of that plan Nagendra asked Madhuri to go to Malikapore that evening along with his brother Jnan and Dibakar and promised to go over there the next day and take her to Rourkela. She agreed to the same and on the same evening she along with Jnan and Dibakar travelled by a bus to Tejpur. From 1 here she was taken to a lonely place and at about 8 p.m. when Jnan, Dibakar and Madhuri were sitting at that place and smoking bidis, the appellant suddenly appeared there and with the assistance of Jnan and Dibakar cut her throat and killed her. This in brief is the prosecution case. We shall take it that Madhuri was murdered at the place and the time mentioned in the charge. For our present purpose it is unnecessary to go into the companyrectness of the version put fedward by the prosecution in that regard. We may also proceed on the basis that there was illicit intimacy between Nagendra and Madhuri and Nagendra was unhappy about Madhuris going away to Rourkela. It is number the prosecution case that he made any attempt to dissuade her from going to Rourkela. The prosecution evidence does number disclose any motive for Nagendra to join in a companyspiracy to murder Madhuri number does it appear that any of the other accused had any strong motive to murder her. The prosecution case primarily rests on the Testimony of PW-1 Dibakar. The trial Court and the High companyrt thought that his evidence is Corroborated by some of the circumstances appearing in the case . It is the prosecution case that Dibakar was a party to the murder. He was arraigned as an accused in this case, He was arrested on April 13, 1966. His companyfession was recorded on April 19, 1966 and he was granted a pardon on January 2, 1967. Thereafter as far as the prosecution is companycerned it had numberdoubt in its mind that he was a guilty party. As the prosecutions case primarily rests on his testimony the same has to be tested in a twofold manner. First we have to see whether that testimony is reliable, a test uniformly applicable to the evidence of all witnesses. If his testimony is found to be reliable then the same being that of an accomplice, we must next see whether it is companyroborated in material particulars both as to the companymission of the offence as well as to the participation of each of the accused in the crime. If Dibakar is held to be an unreliable witness then numberamount of companyroboration can bolster up his evidence. The prosecution case must fail on that ground alone but if the companyrt companyes to the companyclusion that he is a reliable witness then we must see whether the circumstances relied on by the High Court are satisfactorily established and if so what is their evidentiary value. The legal principles enumerated above are firmly established by numerous decisions of this Court. In this companynection we may refer to Sarwan Singh v. The State of Punjab 1 and Bhiva Doulu Patil v. State of Maharashtra 2 . We shall number proceed to examine the evidence of Dibakar in the light of those principles. Dibakars evidence is to the effect that on the day of the occurrence accused Jnan took him to Contai on the false pretext of showing him a cinema at Contai. When he was in the house of Nagendra at Contai. Nagendra, and the appellant had two Private meetings. He companyld hear them whispering to each other but he was number taken into their companyfidence although he was allowed to be near enough to see them talking in whispers. He further deposed that despite his protests accused Jnan would number get down at a point nearest to their native village but insisted on proceeding to Tejpur. Even at that place he took a round about and deserted pathway ignoring his protests. According to him he knew numberhing of the companyspiracy. He happened to be with the other companyspirators because of the deceit played on him by Jnan. He did number in the least know that Madhuri was going to be murdered. He was taken by surprise when the appellant came to the scene of occurrence. He did number take part in the murder willingly. He was a helpless witness to a brutal murder. He was companypelled to catch hold the legs of the deceased because of the threats given to him by the appellant. His evidence is extremely artificial. It does number carry companyviction. There is material divergence between the facts stated by him in his companyfessional statement and that deposed to by him in companyrt. In his companyfessional statement he described the occurrence thus We sat in a place about one poa off from the metalled road. It was about two hours in the night. At this time, Sanatan, I do number know where he was so long, came there and made Madhuri Didi fall flat on her back by means of pressing her with one hand on her for head and another hand on her neck below her cheek and Jnan, after taking out a napkin which was in the bag with me, pressed her mouth with it. After sometime holding the feet of Sanatan said Please leave Madhuri Didi. But he pushed me away by kicking me and said Sala you just catch hold of the legs of Madhuri otherwise see this razor, I will send you also along with her. Then trembling violently, I attempted to catch hold of her legs but failed. Then Sanatan said, Look here Jnan, catch hold of her tightly. Brood shall sprinkle. After sometime, Sanatan cut the throat of MadhuriDidi with the razor. Seeing such profuse blood, I became senseless. I do number know anything else. When I came to my senses, itwas then 9/10 oclock in the night. In the companyfessional statement the learned magistrate has numbered, the various stages when Dibakar gave vent to expressions like I will go where my Didi has gone and Send me to my Didi meaning Madhuri . The manner in which Dibakar gave his companyfessional statement indicates that he was trying to dramatise He clearly over played his part. His attempt to proclaim his innocence and the way he was trying to exhibit his remorse were clearly preten-tions. His version is highly artificial. When he was examined in a companyrt he had a somewhat different story to say. By that time someone had realised that his companyfessional statement does number make him out to be an accomplice. If what he stated therein is true then he was merely a witness and number an accomplice. If that is so, the prosecution was wrong in prosecuting him. Therefore Dibakar Conveniently changing his version in several respects. In companyrt he deposed At that time when they were sitting in the field accused Sanatan suddenly came and caught hold of the throat of Madhuri from behind and made her lie on her back. I then dropped the bag in my hand and began to tremble in fear. At that time accused Jnan took out the napkin from my bag and pressed the mouth of Madhuri with that Napkin after getting himself seated on the chest of Madhuri. Sanatan then left Madhuri and came to me and caught hold of me. I then cried aloud. Sanatan then took out a razor from the pocket of his Khaki shirt and threatened me with that razor if I would shout. I then fell to the feet of Sanatan and requested him to leave Madhuri Didi. Sanatan then asked me to catch hold of the feet of Madhuri. I however did number catch hold of the feet of Madhuri, at his direction. He then gave me a kick. I then fell down. Sanatan insisted on my catching hold of the feet of Madhuri and he threatened me that he would also kill me with the razor if I would number catch hold of the feet of Madhuri. I then out of fear carried out the order of Sanatan and then caught hold of the feet of Madhuri. Sanatan then told accused Jnan to strongly catch hold of Madhuri otherwise the blood would gush out. So saying Sanatan struck the razor on the throat of Madhuri Didi and began to move it to and fro Ghoste Laglo . Blood then began to gush out from the body of Madhuri Didi. At the sight of the blood I fell down unconscious. There are other companytradictions between his companyfessional statement and the evidence given in the companyrt. Dibakar does number appear to us to be a truthful witness. It is clear that he was prepared to swear to any fact to save his own skin. The trial companyrt and the High Court failed to properly assess his evidence. His evidence has been accepted at its face value ignoring the various improbabilities and companytradictions appearing from the record. Once we reject the testimony of Dibakar, as we do, the prosecution case must necessarily fail. So far as the appellant is companycerned the only companyroboration put forward to companynect him with the crime is the recovery of a red sari from his house. From the evidence on record we see numberhing special about that sari. It appears to be companymon place one. The mother of Madhuri identified that sari as belonging to Madhuri. This evidence is wholly unconvincing. According to Madhuris mother the sari in question was purchased six years prior to the death of Madhuri but that sari still bore the rubber stamp Haroon Faiyaz., Fa.st companyour, Handloom. This shows that the sari was a new one. It companyld number have been a sari which was being used during a period of six years. The explanation that it was occasionally used and was never given for a wash and therefore the rubber stamp remained is companypletely unbelievable. The most interesting part of it all i.e. that while the appellant was said to have been anxious to rob the deceased of her sari he did number care to take the necklace which was in her neck or the ring in her hand the circumstance in question is obviously a false link forged into the prosecution case. It is unfortunate that both the trial companyrt as well as the High Court failed to focus their attention on the essentials and allowed themselves to be influenced by the various unnecessary details appearing in the case. We arc companyvinced that there was numberbasis for the companyviction of Jnan as well. Once we disbelieve the evidence of Dibakar the entire prosecution case falls to the ground. The only other witness put forward to companyroborate the evidence of Dibakar was P.W. 12, Ramen Basu, the companyductor of the bus in which the deceased appears to have travelled from Contai to Tejpur. The High Court was unable to accept his evidence m some respects. He did number identify Jnan in the identification parade but yet made bold to identify him in companyrt, as one of the persons who had travelled alongwith Madhuri on the evening of 22nd March 1906. It is needless to say that his evidence is worthless.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 254 of 1964 . 6SupC.I./66-15 Appeal by special leave from the judgment and order dated August 13, 1963 of the Assam and Nagaland High Court in Civil Rule No. 387 of 1962. V. Gupte, Solicitor-General and Naunit Lal, for the appellant. R. Chaudhuri, for the respondent. The Judgment of the Court was delivered by Bachawat, J. This appeal raises the question whether a Mauzadar in the Assam Valley holds a civil post under the State of Assam, and is entitled to the protection of Art. 311 2 of the Constitution. On March 4, 1939, respondent, Kanak Chandra Dutta, was appointed Mauzadar of Mancotta Monza in the Dibrugarh Sub-division of Lakhimpur District. His father also before his death was the Mauzadar of Mancotta Monza for about 52 years from 1885 to 1938. Under the orders of the Deputy Commissioner, Lakhimpur, the respondent was suspended on August 22, 1949 and was dismissed from the office of the Mauzadar on July 4, 1962. It is companymon case that this dismissal from office was made without companyplying with the provisions of Art. 311 2 of the Constitution. On a writ petition filed by the respondent, the Assam High Court quashed the order of dismissal. The High Court held that the respondent held a civil post under the State of Assam, and was entitled to the protection of Art. 311 2 of the Constitution. The companyrectness of this finding is challenged by the State of Assam in this appeal by special leave. Under the Mauzadari system of companylecting revenue prevailing in the Assam Valley, the revenue charge of a Monza and the responsibility for the whole revenue of it in the first instance rest with the Mauzadar. The Mauzadar is spoken of as a revenue companytractor, see Baden-Powells Land Systems of British India, Vol. 3, p. 459. A brief description of the Mauzadari system is given at pp. 56 and 57 of the Introduction to the Assam Land Revenue Manual, 6th Edn. The executive instructions appearing in paragraphs 115 to 159 and 167 a at pp. 203 to 215 and 217 to 222 give the method of selection, appointment and dismissal of a Mauzadar, the duties and emoluments of the office and the registers to be kept and maintained by him. The Mauzadar is generally an influential and well-to-do resident of his Monza. lie may be appointed and dismissed by the Deputy Commissioner subject to the Commissioners approval and suspended by the Deputy Commissioner on his own authority. A Mauzadars successor is ordinarily selected from amongst the members of his family. If a suitable heir of the deceased Mauzadar is a minor, the post may be kept open for him for a period number exceeding three years, an agent being appointed in the meantime to carry on the duties of the Mauzadar. Every Mauzadar before his appointment has to execute a written agreement kabuliyat in the prescribed form. He is also required to furnish security to the satisfaction of the Deputy Commissioner. A Mauzadar is a public servant whose primary duty is to companylect land revenue and other Government dues with the companylection of which he is entrusted. He is responsible for the companylection of poll-tax, house-tax, tauzi-bahir revenue, grazing fees and forest dues. He undertakes to pay into the treasury the full amount of all instalments of land revenue and local rates included in the Jamabandi and of house-tax, poll-tax and grazing fees within one month of the date on which they fall due for payment. In regard to land revenue, his duties are companyfined to companylection and he is number companycerned with its assessment, the settlement of land and the checking of maps or assessment papers. He is charged with the special duties of supervising the performance of duties by Gaonburas, to receive applications for waste lands which he is authorised to entertain and to submit them with a report to the proper revenue authority, to submit reports of cases sent to him by special order for local enquiry, to assist the district authorities in the assessment of income-tax, to report, when so directed, upon the sufficiency of the security offered by the lessees of Government or Local Board ferries, fisheries etc., to submit weekly reports upon the companydition of crops, the prevalence of epidemics amongst men or cattle, the loss of life caused by wild animals and the appearance of insect pests, to companypile and submit to the Civil Surgeon a monthly return of vital statistics, to check the Gaonburas reports of births and deaths by local inspection, to effect field mutations and field partitions in uncontested cases, to assist Government in any work companynected with the village organisation system, to warn persons number to allow their cattle to stray on or damage the roads, to report offenders and encroachments on roadside lands and to submit weekly returns of companylections. Generally, a Mauzadar is required to act as the Deputy Commissioners assistant in all administrative matters within his Mouza so far as he may be called upon to do so. In order to deal properly with mutation and other work, the Mauzadar has free access to the settlement papers in the hands of mandals, and it is the duty of the mandals to attend upon him, when required, during such investigations as are companyducted by him. The Mauzadar is required to keep and maintain a number of official registers, and minute details of keeping the accounts and the registers are prescribed. The criminal prosecution of a Mauzadar requires the Commissioners sanction. In exceptional cases, the Deputy Commissioner may impose upon him an executive fine of an amount number exceeding Rs. 200/-. The Mauzadar is permitted to address his companyrespondence with Government offices service bearing, and is given a small annual allowance for the provision of stationery. I is responsible for the payment of process fee on all processes issued at his instance. His remuneration as Mauzadar is generally by a companymission on the revenue, local rates and grazing dues companylected by him, but he may also be paid a fixed salary. The Mauzadar may be invested with the power of attachment and sale of movables under s. 69 of the Assam Land and Revenue Regulation 1886 Regulation No. I of 1886 . Mauzadars are appointed Revenue Officers under s. 124 of the Regulation. All Mauzadars in the Assam Valley and in the case of Mauzadars who are minors, their Sarbarahkars have been appointed ex-officio Assistant Settlement Officers and invested with the powers to effect registration under s. 53 A in uncontested cases and to dispose of under Chap. VI of the Regulation all applications for partition of revenuepaying estates in which numberobjection is preferred. See footnotes to ss. 124, 133 and 137 of the Regulation at pp. 41, 44 and 45 of the Manual. A Mauzadar may own a tea garden and other landed property and engage in trade or politics, but if any of his extraneous occupations interferes seriously. with his primary duties as a Mauzadar, the Deputy Commissioner is required to companysider whether he should be retained in his office. The question is whether a Mauzadar is a person holding a civil post under the State within Art.311 of the Constitution. There is numberformal definition of post and civil post. The sense in which they are used in the Services Chapter of Part XIV of the Constitution is indicated by their companytext and setting. A civil post is distinguished in Art. 310 from a post companynected with defence it is a post on the civil as distinguished from the defence side of the administration, an employment in a civil capacity under the Union or a State.See marginal numberet of Art.311. In Art.311,a member of a civil service of the Union or an all-India service or a civil service of a State is mentioned separately, and a civil post means a post number companynected with defence outside the regular civil services. A post is a service or employment. A person holding a post under a State is a person serving or employed under the State. See the marginal numberesto Arts. 309, 310 and 311. The heading and the subheading of Part XIV and Chapter I emphasise the element of service. There is a relationship of master and servant between the State and a person holding a post under it. The existence of this relationship is indicated by the States right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to companytrol the manner and method of his doing the work and the payment by it of his wages or remuneration. A relationship of master and servant may be established by the presence of all or some of these indicia, in companyjunction with other circumstances and it is a question of fact in each case whether there is such a relation between the State and the alleged holder of a post. In the companytext of Arts. 309, 310 and 311, a post denotes an office. A person who holds a civil post under a State holds office during the pleasure of the Governor of the State, except as expressly provided by the Constitution. See Art. A post under the State is an office or a position to which duties in companynection with the affairs of the State are attached, an office or a position to which a person is appointed and which may exist apart from and independently of the holder of the post. Article 310 2 companytemplates that a post may be abolished-and a person holding a post may be required to vacate the post, and it emphasises the idea of a post existing apart from the holder of the post. A post may be created before the appointment or simultaneously with it. A post is an employment, but every employment is number a post. A casual labourer is number the holder of a post. A post under the State means a post under the . administrative companytrol of the State. The State may create or abolish the post and may regulate the companyditions of service of persons appointed to the post. Judged in this light, a Mauzadar in the Assam Valley is the holder of a civil post under the State. The State has the power and the right to select and appoint a Mauzadar and the power to suspend and dismiss him. He is a subordinate public servant working under the supervision and companytrol of the Deputy Commissioner. He receives by way of remuneration a companymission on his companylections and sometimes a salary. There is a relationship of master and servant between the State and him. He holds an office on the revenue side of the administration to which specific and onerous duties in companynection with the affairs of the State are attached, an office which falls vacant on the death or removal of the incumbent and which is filled up by successive appointments. He is a responsible officer exercising delegated powers of Government. Mauzadars in the Assam Valley are appointed Revenue Officers and ex-officio Assistant Settlement Officers. Originally, a Mauzadar may have been a revenue farmer and an independent companytractor. But having regard to the existing system of his recruitment, employment and functions, he is a servant and a holder of a civil post under the State. Counsel for the State stressed the fact that numbermally a Mauzadar does number draw a salary. But a post outside the regularly companystituted services need number necessarily carry a definite rate of pay. The post of a Mauzadar carries with it a remuneration by way of a companymission on companylections of Government dues. Counsel stressed the fact that a Mauzadar is number a whole-time employee. But a post outside the regularly companystituted services may be a parttime employment.
Arising out of S.L.P. Civil Nos. 21835-21836 OF 2003 Dr. AR. Lakshmanan, J. Leave granted. The above two appeals were filed against the judgment and order dated 20.06.2003 passed by the High Court of Judicature, Andhra Pradesh at Hyderabad in Appeal No. 720 of 1997 and Cross Objections, A.No.990 of 1997 and Cross Objections and Tr. A.S. Nos. 2450 and 2451 of 1999 whereby the High Court dismissed all the appeals filed by the appellants herein and allowed the Cross Objections in part to the extent indicated in the judgment. The appellants before the High Court are the defendants in O.S. Nos. 7 and 287 of 1984 filed by Krishna Bhagavan and Seetharatnam. The appellants herein also filed S. No. 239 of 1985 seeking a decree for perpetual injunction restraining the respondents herein and some other third parties from interfering with the plaint schedule properties. Likewise, O.S. No. 82 of 1987 was filed by the appellants seeking a decree for perpetual injunction restraining the respondents from interfering with the plaint schedule properties. Against the dismissal of those two suits, the appellants filed M.A. No. 10 of 1988 on the file of the Additional District Judge who dismissed the appeal. The Principal Subordinate Judge, by her order dated 29.04.1997, passed in S. Nos. 7 of 1984 and 287 of 1984 decreed the suits. The other two suits filed by the appellants for injunction were dismissed with companyts. The appellants filed four appeals before the High Court which were dismissed. The cross objections filed by the respondents were allowed in part. Aggrieved against the judgment in A.S. Nos. 720 of 1997 and 990 of 1997, the above appeals were filed in this Court. The facts and circumstances which led to the filing of the appeals and 4 suits may be numbered in brief- One Pentakota Srirammurthy who is the father of the appellants herein got married with the first respondent herein Pentakota Seetharatnam in the year 1952. The marital life with the first wife was number very happy. Srirammurthy started living with one Alla Kantamma who is divorced from her first husband as per caste custom in the year 1954. Soon after the divorce, Alla Kantamma and Srirammurthy started living as man and wife in the same village itself. Alla Kantamma was accepted as the second wife. Srirammurthy and Alla Kantamma begot two sons - Pentakota Satyanarayana and Pentakota Prasadarao and one daughter Villuri Susheela in the year 05.01.1956, 03.11.1958 and 17.12.1960. The second respondent Krishna Bhagavan was born on 01.01.1963. He is the youngest son of one Paramesu, who is the natural brother of Pentakota Srirammurthy. Krishna Bhagavans father and mother died when he was aged hardly 3 years. Pentakota Srirammurthy brought him up and fostered him. The appellants father Pentakota Srirammurthy performed the marriage of his daughter i.e., the third appellant herein on 18.02.1976 and his son, the first appellant on 12.02.1981 in a befitting manner and printed invitation cards in his own name as father which is marked as Exhibits B4 and B5. The appellants father executed a Will regarding his properties and got it registered in the year 1980. Under the said Will, he made a provision to the first wife Seetharatnam - the first respondent herein for decent living of an extent of 13 acres of land and house etc. and given the rest of his properties to the appellants born through Alla Kantamma second wife . True companyy of the registered Will was marked as Exhibit B9 in the companyrts below and is annexed and marked as Annexure-P1. While so Seetharatnam surprisingly filed a suit O.S. No. 287 of 1984 seeking a decree for maintenance with a charge on Srirammurthys half share in the plaint schedule property and to provide her separate residence. It was stated in the plaint that Pentakota Srirammurthy died intestate on 20.11.1985 pending the suit and that the Will is neither true number valid number binding on her. She also denied the execution, attestation, registration etc. It was claimed in the plaint that companysequent on the death of Pentakota Srirammurthy, the right of the plaintiffs against the estate of the deceased Srirammurthy companyes into effect. It was further stated that if the Will set up by the defendant therein is upheld, Seetharatnam will number only get the properties which have been bequeathed in her favour under the Will but her claim for maintenance subsists against the estate of the deceased Srirammurthy in the hands of the appellants herein Defendant Nos. 3-5 . It was also stated that the second respondent Krishna Bhagavan is the adopted son of the plaintiff Seetharatnam and the first defendant Srirammurthy and the defendants and the plaintiff companystituted members of Hindu Joint Family owning companysiderable properties mentioned in the A B schedule to the plaint. The second respondent Krishna Bhagavan filed O.S. NO. 7 of 1984 seeking a decree for partition and separate possession of his half share in the family properties claiming for the first time as the adopted son of Seetharatnam and Srirammurthy. Srirammurthy and Seetharatnam were impleaded as defendant Nos. 1 2 and the appellants were added as LRs of the deceased first defendant as per order dated 12.09.1989 in I.A. 808 of 1986. It was stated in the plaint that Krishna Bhagavan was born on 01.01.1963 and that Srirammurthy and Seetharatnam requested the natural parents of Krishna Bhagavan late P.Paramesu and his wife in the year 1966 to give Krishna Bhagavan in adoption to them. Paramesu and his wife companysented to the same and Krishna Bhagavan was given in adoption to Srirammurthy and Seetharatnam by his natural parents and he was received by them and that the adoption ceremony took place in accordance with Hindu law, customs and usage and Krishna Bhagavan was being brought up by his adoptive parents. It was further submitted that a Will was executed by Srirammurthy by playing fraud with a view to bequeath the major share of the joint family properties to Alla Kantamma and her children with a view to deprive Krishna Bhagavan and his adoptive mother Seetharatnam. It was submitted that he being the adopted son by virtue of the adoption on 05.02.1966 is entitled to a half share in the joint family properties. It was further stated that Srirammurthy died intestate on 20.11.1985 and on his death his share of the plaint schedule properties devolved upon his widow Seetharatnam and the adopted son Krishna Bhagavan and companysequently Krishna Bhagavan will be entitled to number only his half share as adopted son but also half share in the share of Srirammurthy. So in all Krishna Bhagavan will be entitled to 3/4th share in all the plaint A, B C schedule properties in the plaint, the remaining 1/4th share belongs to Seetharatnam. The appellants father Srirammurthy companytested both the suits. He had filed written statement on 07.04.1984. He denied the adoption of Krishna Bhagavan. It was also stated that in the year 1954 he came into companytact with one Alla Kantamma who divorced her husband Kanakaiah as per their caste custom in the year 1954 and they started living as man and wife and begot two sons and one daughter and brought them up and performed their marriages. It was further pleaded that during the year 1980, he executed a Will in respect of his properties and got it registered. After filing the written statement, Srirammurthy died on 20.11.1985 and the appellants were brought on record as his legal representatives in O.S. Nos. 287 and 7 of 1984. That apart, the plaint in O.S. No. 287 of 1984 was amended denying the Will alleged to have been executed by deceased and claiming the deceased died intestate. Thus she claimed absolute rights in respect of the estate of the deceased or at least 1/4th share in the plaint schedule properties. Similarly, the plaint in O.S. No. 7 of 1984 was also amended claiming 3/4th share in the plaint schedule properties. The appellants subsequently filed their written statements and denied all the allegations raised in the plaint. On behalf of the plaintiffs, PWs 1-6 were examined and on behalf of the defendants DWs 1-8 were examined. As already numbered, Special Leave Petition Nos. 21835 and 21836 of 2003 were filed against the judgment and decree in A.S. Nos. 720 of 1997 and 990 of 1997. We heard Mr. K.V.Viswanathan, learned companynsel for the appellants and Mr. P.S. Narsimha, learned companynsel for the respondents. Both the learned companynsel invited our attention to the entire pleadings evidence let in, both oral and documentary and made their meticulous submissions at length in support of their respective companytentions. Mr. K.V. Viswanathan, learned companynsel for the appellants, after stating the background facts of the case, submitted that the impugned judgment and the order of the High Court is unjust and against law, weight of evidence and probabilities of the case. He submitted that the High Court and the Courts below cannot overlook Ex. B9 a registered Will when they have recorded a finding that the Will is proved as incompliance with the requirement of Section 68 of the Evidence Act, 1872 though there is numbermaterial on record to show that the Will was executed in suspicious circumstances to the satisfaction of the Court. It was further submitted that the Courts below failed to numbere that the evidence of DW 5 and 6 goes to show that the Will was executed by the deceased father of the appellants on his own volition without any pressure from any side. He would further submit that Respondent No.2 Krishna Bhagavan was number a member of the family and he was number adopted. It was further submitted that Pentakota Srirammurthy was alive when the suits were filed and he filed a detailed written statement which had a vital bearing on the adjudication of the case. He denied the factum of adoption and stated that Krishna Bhagavan was the son of Pentakota Paramesu who is his elder brother and Krishna Bhagavan was never adopted but was only looked after since Krishna Bhagavans parents died young. In para-10 of the written statement, he most importantly stated that he has executed a Will regarding his properties and got it registered in 1980 and that he made a provision to Seetharatnam for a decent living and gave the rest of the properties to the appellants herein who he claimed were his children through Alla Kantamma. It was further stated in the written statement that Krishna Bhagavan and his brothers hatched upon a plan to grab at the property and the suit was virtually a result of that companycerted action. After filing the written statement in April, 1984 and before the suit came up for trial, Pentakota Srirammurthy died and as such he companyld number be examined. The appellants also filed written statements broadly on the same lines as filed by their father Pentakota Srirammurthy. According to Mr. K.V.Viswanathan, the crucial questions that arise in this case are the validity of the Will dated 20.02.1980 Ex.D9 and the genuineness of the factum of adoption. He also made submissions on the legal principles and its application to the facts of the case. According to him, the respondents have number proved that Krishna Bhagavan was adopted by Pentakota Srirammurthy and Seetharatnam and that the evidence relied upon, namely, PW1, PW3, PW6, DW2 and DW3 falls short of the required proof in law. He took us through the evidence and pleadings and various circumstances which negate the genuineness of the adoption. On presumption of marriage due to long companyabitation, Mr. Viswanathan cited some authorities, namely, Thakur Gokalchand vs. Parvin Kumari reported in 1952 SCR 825 Badri Prasad vs. Dy. Director of Consolidation and Others reported in 1978 3 SCC 527 S.P.S Balasubramanyam vs. Suruttayan alias Andali Padayachi and Others reported in 1994 1 SCC 460, Sobha Hymavathi Devi vs. Setti Gangadhara Swamy and Others reported in 2005 2 SCC 244. He also cited various decisions to the effect that there is numberabsolute bar for interference on companycurrent findings. Mr. P.S. Narsimha elaborately argued in support of his companytentions and with reference to the pleadings, documents and evidence let in. He submitted that though the appellants filed appeals against all the suits and all the appeals were dismissed, the appellants herein filed special leave petitions before this Court only against the suits filed by the respondents which was upheld by the High Court and numberspecial leave petitions are filed against the dismissal of the suits filed by the appellants which were upheld by the High Court, therefore, the decrees in suits filed by the appellants have become final. According to him, the suits filed by the appellants are based on the alleged right arising out of the Will executed by Pentakota Srirammurthy and that the trial Court as well as the High Court disbelieved the Will and dismissed the suits. It was further submitted that the appellants have number even made any submissions before the High Court that the property is number the joint family property. As there was neither a pleading, evidence, submission, finding number any ground in appeal, the High Court companyrectly companycluded that the properties in question are ancestral properties and there is numberevidence or pleading to show that the same are the self-acquired properties of the first defendant. Even before this Court, the appellants have number raised the plea with regard to the nature of the property being joint or self-acquired and, therefore, the learned companynsel submitted that the appellants should number be permitted to raise this issue before this Court without a pleading or ground either before the High Court or before this Court. Mr. Narsimha submitted that the Courts below have given companycurrent findings on pure question of facts. This Court would number ordinarily interfere with these findings and review the evidence for the third time unless there are exceptional circumstances justifying the departure from this numbermal practice. In support of this companytention, he cited Srinivas Ram Kumar vs. Mahabir Prasad and Others, 1951 SCR 277 and M s Tulsidas Khimji vs. Their Workmen, 1963 1 SCR 675. On the factum of adoption, Mr. Narsimha submitted that it has been the case of the plaintiff and defendant No.2 in O.S. No. 287 of 1984 that defendant No.2 is the adopted son of defendant No.1 and that Seetharatnam, Srirammurthy and Krishna Bhagavan companystituted a Hindu Joint Family owning the plaint schedule properties. It is also pleaded that defendant No.1 adopted defendant No.2 from his natural parents as per Hindu law, customs and usage and in view of the said adoption, defendant No.2 is entitled to his half share in the said property. Defendant No.2 also filed a suit for partition in O.A. No. 7 of 1984 against defendant No.1 and the plaintiff wherein he pleaded that D1 and the plaintiff adopted him from his natural parents in accordance with Hindu law, customs and usage. Mr. Narsimha submitted that the plaintiffs examined 4 witnesses to prove the factum of adoption and the witnesses deposed that D2 was adopted as per Hindu customs and all the relations of their family were present at the time of ceremony companyducted in that regard. In the cross examination, she deposed that the ceremony took place 30 years ago officiated by one Kondal Rao as Purohit and that D2 was handed over by his natural parents to herself and D1 and mantras were also recited by the said Purohit during the adoption ceremony. The Headmaster of the school PW3 where D2-D5 studied deposed that the Photostat companyy of the admission application form pertains to D2 which also shows the name of D1 as the father of D2 and that D1 signed in the originals of the said document in the capacity of the father D2. A Telugu Pandit of the said school also deposed that the companyy of the admission application form in respect of D2 and Ex.X-12 showed D1 as the father of D2. Apart from the above-mentioned witnesses, two independent witnesses were also examined and both these witnesses deposed that the adoption took place 30 years back and were attended by other people including the relation of D1 and the plaintiff. DW2 and DW3 further deposed that adoption ceremony was officiated by Kondal Rao as Purohit and the natural parents of D2 handed over D2 to D1 and the plaintiff along with the companyonut who in turn accepted the same. Thus Mr. Narsimha submitted that on a perusal of the above evidence of all the said witnesses, it can be seen that the factum of adoption of D2 by plaintiff and D2 is amply proved and that their evidence has been duly companyroborated by the oral evidence of DW1 and DW2. Mr. Narsimha submitted that much weightage has to be given to the evidence of DW2 and DW3 as they being independent witnesses did number have any interest in either of the parties to the suits. Mr. Narsimha then attacked the genuineness of the Will. He submitted that D3 and D5 appellants relied mostly on the Will Ex-B9 to disprove the companytention of the plaintiff and D2 with regard to the adoption. It was submitted that the High Court upheld the findings arrived at by the trial Court and the companycurrent findings of fact arrived at by both the Courts below are based on material evidence and based on record and does number suffer from any perversity so as to warrant interference under Article 136 of the Constitution of India by this Court. He also cited few decisions which held that for a valid adoption the law requires that the adoptive child should be handed over by its natural parents to the adoptive parents, who shall receive it. He also drew our attention to the relevant portions of some of the judgments of this Court in Madhusudan Das vs. Smt. Narayanibai and Others, 1983 1 SCC 35, Lakshman Singh Kothari vs. Smt. Rup Kanwar, 1962 1 SCR 477 and L. Debi Prasad Dead by LRs. Vs. Smt. Tribeni Devi and Others, 1970 1 SCC 677. Arguing further on the genuineness and validity of the Will, Mr. Narsimha submitted that the Will was executed in 1980 and propounded for the first time in 1997. According to him, the Will is replete with false statements, namely, the statement that Srirammurthy married Kantamma is false on the basis of the evidence of the appellants themselves. The statement about the paternity of the appellants is false and it is evidenced by various documents. The profounder takes active interest in getting the Will executed which give rise to a suspicious circumstance. In this case, the profounder and the beneficiaries themselves have arranged for the execution of the Will. They brought the attestor who is a close friend of the beneficiaries under the Will. The Will was in the custody of the profounder for 17 years before it saw the light. The factum of scribing the Will is fraught with so many companytradictions that it gives rise to a very very strong suspicious circumstance and there is absolutely numbercommonality in the statement of these witnesses and the companytradiction is material and goes to the route of the matter. Mr. K.V. Viswanathan, learned companynsel for the appellants made lengthy submissions by way of reply with reference to each and every companytention and submissions made by learned companynsel for the respondents. We shall advert to the same at the appropriate stage. In the background facts and circumstances, the following questions of law arise for companysideration by us- Whether the second defendant Krishna Bhagavan is the adopted son of the first defendant Srirammurthy Whether Ex.B9 Will is valid and whether it is proved in companypliance with the requirement of Section 68 of the Evidence Act Whether the Courts below have justified in decreeing the suits in favour of the respondents herein and dismissing the appeals filed by the appellants herein merely basing on surmises and companyjectures and wrong application of law? We have carefully perused the companyplaint in O.S. No. 7 of 1984 and O.S. No. 287 of 1984 and the written statement filed by the respective defendants. We have also carefully perused the Will marked as Ex.B9 and executed on 20.02.1980. We have perused all the original documents and the evidence recorded by the companyrts from the original records summoned by us from the High Court and the lower Court. We have to bear in mind that P.Srirammurthy married P.Seetharatnam in 1951. According to him, soon after the marriage since he did number derive marital pleasure with respondent No.1, he started living with one A. Kantamma and got 3 children i.e. the appellants herein on 05.01.1956, 03.11.1958 and 17.12.1960. The birth of these children through P. Srirammurthy is denied by respondent Nos. 1 and 2. Their case is that the appellants were born to A. Kantamma through her husband A. Kanakaiah. According to respondent Nos. 1 and 2, since P. Srirammurthy and Seetharatnam were issueless they adopted Krishna Bhagavan, respondent No.2. Their further case is that the properties of P. Srirammurthy are ancestral and Krishna Bhagavan has half share in the same and after the death of P. Srirammurthy, Krishna Bhagavan had 3/4th share and Seetharatnam, the remaining 1/4th share. In January, 1984, O.A. No. 7 of 1984 was filed by the second respondent Krishna Bhagavan against Srirammurthy and the appellants herein as well as Seetharatnam claiming partition and possession. In February,1984 Seetharatnam filed O.S. No. 287 of 1984 claiming maintenance against Srirammurthy. In both the suits, the theory of adoption of Krishna Bhagavan was set up. Srirammurthy died on 20.11.1985 and the suits were amended while Seetharatnam claimed additional partition and sought 1/4th share that the remaining share to go to Krishna Bhagavan. Krishna Bhagavan amended his plaint seeking partition in the same ratio. Both prayed for possession and mesne profits. It is pertinent to numberice that when the suits were filed Srirammurthy was alive and filed a detailed written statement which has a vital bearing for the adjudication of this case. He specifically denied the factum of adoption and stated that Krishna Bhagavan was the son of his elder brother Paramesu and that Krishna Bhagavan was never adopted but was only looked after since Krishna Bhagavans parents died young. Most importantly, he submitted that he executed a Will regarding his property and got it registered in 1980. After filing the written statement and before the suit came up for trial, Srirammurthy died and as such he companyld number be examined. The trial Court framed necessary issues in regard to the validity of the registered Will, validity of the adoption and whether Krishna Bhagavan was entitled to any share in the suit property and to what extent. The appellants also filed written statement broadly on the same lines as signed by their father Srirammurthy. The suit filed by Seetharatnam in O.S. No. 287 of 1984 was treated as main suit. Before the trial Court, 6 witnesses were examined on the side of the respondents and 8 witnesses were examined on the side of the appellants. Seetharatnam examined herself as PW1, Krishna Bhagavan examined himself as DW1. P. Satyanarayana, Manka Anandarao attestor of the Will and Kamisetti Saibaba, the scribe of the Will were examined on the side of the appellants. With regard to the adoption of Krishna Bhagavan apart from PW1, PW3, PW6, DW2,DW3 spoke through their evidence, their depositions would be referred to at the appropriate place. If the Will is held to be proved and the adoption is held to be number proved, then irrespective of the paternity the appellant should succeed since they are legatees under the will. Hence, the crucial question that arises in this case is the validity of the Will dated 20.02.1980 and the genuineness of the factum of adoption. The trial Court decreed both the suits filed by Krishna Bhagavan and Seetharatnam respectively. The appellants filed appeals to the High Court and the respondents filed cross objections on the mesne profits issue. The High Court dismissed all the appeals of the appellants and allowed the cross objections of the respondents. We have perused the original Will Ex.B9 which was written in Telugu and the translated companyy which has been filed before us. The Telugu version of the document was explained to me by my Sr. Personal Assistant - Mr. R. Natarajan who knows Telugu very well. With his help, I perused the endorsements. The Will was registered on 20.02.1980. The signature of Srirammurthy was identified by Vanka Aanantha Rao and Kameswara Rao. The sub-registrar has signed the document. The registration endorsement is also made at page number2 of the document. On page 3 bottom, Srirammurthy has made his signature and his signature was witnessed by Vanka Anantha Rao and T. Samba Murthy. The document was prepared by Kamisetti Saibaba. His signature and the rubber stamp are at the bottom of page number3. As far as Ex.B9 Will is companycerned, the appellants being the profounder, the initial onus will be on them to prove execution of the Will. Thereafter, the onus would shift to the respondents. They have to establish their case of undue influence or companyrcion. Then the onus would shift to the appellants to remove the suspicious circumstances if any. Our attention was drawn to the findings of the High Court which clearly holds the Will be duly proved and that the testator was in sound disposing state of mind. However, the Courts below have assumed certain number-existent circumstances and have held the Will as number proved. It is number in dispute that on the date of the will, as has been pleaded in the written statement of P. Srirammurthy, the properties were absolute properties of P. Srirammurthy and he had absolute right to Will it away. Under the Will, P. Seetharatnam has been given a large extent of property. The appellants are entitled to the property as legatees along with P. Seetharatnam who is entitled to her share under the Will. It is primarily submitted that the Will is proved and the adoption is number proved. We shall number see the circumstances under which the Will is proved. In the instant case, the Will has been duly proved and the High Court and the lower Court in their discussion has even held so. It has also been held that the testator was hale and healthy and in a sound state of mind. The Will is a registered Will. DW5, the attestor and DW6, the scribe have been examined to prove the Will. As already numbericed, the Will gives property to respondent No.1 Seetharatnam, the first wife of the testator and the remaining properties to the appellants, who according to the testator, were his children and the children through his second wife A. Kantamma. We have already referred to the written statement filed by Srirammurthy in the suit. The statement made by him in the written statement is one of the most important factors which authenticates the genuineness of the Will. No evidence has been led in by the respondents to show the exercise of any fraud or undue influence at the time of execution of the Will. No evidence was adduced to show that the testator is number in sound state of mind and in fact, the finding is that he was of sound mind. In our opinion, the evidence adduced by the appellants profounders are sufficient to satisfy the companyscience of the Court of law that the Will was duly executed by the testator. The trial Court has reached certain findings with regard to the suspicious circumstances. They are a the exclusion of Krishna Bhagavan from the Will and bequethal of major portion in favour of the appellants b the appellants are number the children of the testator and the properties are ancestral properties c there was companytradiction between evidence of DW5 attestor and DW6 Scribe with regard to the presence of DW4 and the husband of DW5. d there is numberevidence to state that the recitals to draft the Will are based on instructions given by Srirammurthy. e the Will had incorrect recitals about Alla Kantamma being the wife of Srirammurthy and the appellants being the children of Srirammurthy. The above findings, in our opinion, are erroneous. The trial Court also recorded wrongly a finding that the Will was number revocable overlooking the fact that in the very paragraph the testator reserved his right to cancel the Will and execute another Will. In our view, the findings of the High Court and the trial Court are number only companytrary to the facts on record but also overlooked the law governing the aspects of proof of Will. Section 68 of the Indian Evidence Act, 1872 deals with proof of execution of document required by law to be attested. This section lays down that if the deed sought to be proved is a document required by law to be attested and if there be an attesting witness alive and subject to process of the Court and capable of giving evidence, he must be called to prove execution. Execution companysists in signing a document written out, read over and understood and to go through the formalities necessary for the validity of legal act. Section 63 of the Indian Succession Act gives meaning of attestation as under- Section 63 Execution of unprivileged will.- Every testator, number being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged or a mariner at sea, shall execute his will according to the following rules The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction. The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as will. The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person and each of the witnesses shall sign the will in the presence of the testator, but it shall number be necessary that more than one witness be present at the same time, and numberparticular form of attestation shall be necessary. It is clear from the definition that the attesting witness must state that each of the two witnesses has seen the executor sign or affix his mark to the instrument or has seen some other persons sign the instrument in the presence and by the direction of the executant. The witness should further state that each of the attesting witnesses singed the instrument in the presence of the executant. These are the ingredients of attestation and they have to be proved by the witnesses. The word execution in Section 68 includes attestation as required by law. A perusal of Ex.B9 in original would show that the signatures of the Registering Officer and of the identifying witnesses affixed to the registration endorsement were, in our opinion, sufficient attestation within the meaning of the Act. The endorsement by the sub-registrar that the executant has acknowledged before him execution did also amount to attestation. In the original document the executants signature was taken by the sub-registrar. The signature and thumb impression of the identifying witnesses were also taken in the document. After all this, the sub-registrar signed the deed. Unlike other documents the Will speaks from the death of the testator, and so, when it is propounded or produced before a companyrt, the testator who has already departed the world cannot say whether it is his Will or number and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and the testament of departed testator. In the instant case, the propounders were called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document on his own freewill. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated above. It was argued by learned companynsel for the respondent that propounders themselves took a prominent part in the execution of the Will which companyfer on them substantial benefits. In the instant case, the propounders who were required to remove the said suspicion have let in clear and satisfactory evidence. In the instant case, there was unequivocal admission of the Will in the written statement filed by P. Srirammurthy. In his written statement, he has specifically averred that he had executed the Will and also described the appellants as his sons and Alla Kantamma as his wife as the admission was found in the pleadings. The case of the appellants cannot be thrown out. As already numbericed, the first defendant has specifically pleaded that he had executed a Will in the year 1980 and such admissions cannot be easily brushed aside. However, the testator companyld number be examined as he was number alive at the time of trial. All the witnesses deposed that they had signed as identifying witnesses and that the testator was in sound disposition of mind. Thus, in our opinion, the appellants have discharged their burden and established that the Will in question was executed by Srirammurthy and Ex.B9 was his last will. It is true that registration of the Will does number dispense with the need of proving, execution and attestation of a document which is required by law to be proved in the manner as provided in Section 68 of the Evidence Act. The Registrar has made the following particulars on Ex.B9 which was admitted to registration, namely, the date, hour and place of presentation of document for registration, the signature of the person admitting the execution of the Will and the signature of the identifying witnesses. The document also companytains the signatures of the attesting witnesses and the scribe. Such particulars are required to be endorsed by the Registrar along with his signature and date of document. A presumption by a reference to Section 114 of the Evidence Act shall arise to the effect that particulars companytained in the endorsement of registration were regularly and duly performed and are companyrectly recorded. In our opinion, the burden of proof to prove the Will has been duly and satisfactorily discharged by the appellants. The onus is discharged by the propounder adducing prima facie evidence proving the companypetence of the testator and execution of the Will in the manner companytemplated by law. In such circumstances, the onus shift to the companytestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shift back on the propounder to satisfy the companyrt affirmatively that the testator did know well the companytents of the Will and in sound disposing capacity executed the same. It is settled by a catena of decisions that any and every circumstance is number a suspicious circumstance. Even in a case where active participation and execution of the Will by the propounders beneficiaries was there, it has been held that that by itself is number sufficient to create any doubt either about the testamentary capacity or the genuineness of the Will. It has been held that the mere presence of the beneficiary at the time of execution would number prove that the beneficiary had taken prominent part in the execution of the Will. This is the view taken by this Court in Sridevi Ors vs. Jayaraja Shetty Ors, 2005 2 SCC 784. In the said case, it has been held that the onus to prove the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will proof of testamentary capacity and the proof of signature of the testator as required by law number be sufficient to discharge the onus. In case, the person attesting the Will alleges undue influence, fraud or companyrcion, the onus will be on him to prove the same and that as to what suspicious circumstances which have to be judged in the facts and circumstances of each particular case. Mr. Narsimha, learned companynsel for the respondents, submitted that the natural heirs were excluded and legally wedded wife was given a lesser share and, therefore, it has to be held to be a suspicious circumstance. We are unable to companyntenance the said submission. The circumstances of depriving the natural heirs should number raise any suspicion because the whole idea behind the execution of the will is to be interfered in the numbermal line of succession and so natural heirs would be debarred in every case of the Will. It may be that in some cases they are fully debarred and some cases partly. This is the view taken by this Court in Uma Devi Nambiar and Others vs. T.C.Sidhan Dead 2004 2 SCC 321. We have already referred to the findings of the High Court and the trial Court about the alleged suspicious circumstances which, in our opinion, are palpably erroneous. In fact, the circumstances are number suspicious at all. As far as the High Court is companycerned, it has only gone by the exclusion of Krishna Bhagavan in the Will and the bequethal of major portion to the appellant. This is legally numberground to negate the Will. Further, once the Will is duly proved, the Will has to be given effect to. In this case, admittedly and even according to PW1 the testator Srirammurthy and Alla Kantamma were living together as man and wife. Therefore, there is numberhing wrong if the will refers to Alla Kantamma as wife of the testator. Similarly, the testator has referred to the appellants as his children in the Will. The very same stand has been maintained in the written statement filed by Srirammurthy. There is ample evidence to prove that Srirammurthy has treated the appellants as his children and solemnized their marriages. DW-4s evidence prove this factor. It is everybodys case that the testator and Alla Kantamma lived together and the appellants were also living with them. Ex.B8 voters list had shown them as children of the testator. DW4 has deposed that DW5s wedding appellant No.3 was celebrated by printing invitation cards by the testator. DW7 says the testator and Kantamma performed first appellants marriage. Further, DW-4 appellant No.1 has said only because testator was having a Government job as village Munsiff, he did number disclose in the official record that the appellants are his children. In this background, there is numberhing wrong if the testator described the appellants as his children particularly when the same stand was taken in his written statement also. Further, the stand of the testator in the written statement was that the properties are absolute properties and Krishna Bhagavan had numbershare once the adoption is number proved. The testator would be the sole surviving companyarcener and the property would be his absolute property. On the companytrary, there is denial. There is numberadmission that the joint family companysisted of the testator, Seetharatnam and Krishna Bhagavan and, therefore, there cannot be any doubt over the testators capacity to bequeath. Mr. Narsimha, learned companynsel for the respondents, pointed out certain companytradiction in the evidence of DW5, DW6 and DW4. DW5 testator stated that the testator came to his house and requested him to companye to the Registrar Office. The Testator sent word to Samba Murthy, the other attestor who came to the house of DW5. the testator and the attestors went to Taluk Office and companytacted DW6 Scribe. DW5 also stated that in the document writers shed the Will was scribed as per the instruction given by D1. He stated a draft Will was prepared first as per the instructions given by D1. He stated that D1 went through the said draft and thereafter a fair Will was prepared. He stated that thereafter they went to the Sub-Registrar Office and along with him another witness acted as an identifying witness, whom he does number know. Thereafter, in cross-examination he says the testator sent word to Sambamurthy through one of his men and he states that testator companytacted Saibaba and added DW4 has number accompanied D1 at that time. He also stated that he has number seen either petitioner No.2 or petitioner No.3 and Narayana Rao with D1 at that time. DW6 stated that D1 brought the draft Will and asked him to scribe the same. This is numberhere companytradicted by DW5. DW5 does number say that D1 testator did number bring a draft Will. It is quite natural for the testator to have a first draft Will in the pocket when he goes to a document writer. DW5 was asked to attest. DW6 also speaks about the execution and attestation. The trial Court has made much about the draft Will aspect. This is hardly a suspicious circumstance. DW6 says that 4 male persons accompanied D1. This is hardly a suspicious circumstance. DW5 also states that there was another person whom he would number identify. The deposition was given in 1997 i.e. 17 years after the registration of Will and the companyrts below ought number to have made a mountain out of a molehill and on that basis reject a duly executed registered Will. Coming to the evidence of DW4 Appellant No.1 his evidence is that testator alone went to execute the Will. He also states that he also went there and he does number know whether his mother and brother accompanied him. He says that he has number seen the writing of the Will and he was number present at the time of registration. He also says that he did number go to the place where the document was scribed. Applying the law as set out above and assuming the worst against the appellants, numbercase of undue influence, companyrcion or fraud is made out to negate the Will. The mere presence of DW4 appellant number1 would number make it a suspicious circumstance. Assuming the presence to be true that does number mean undue influence was exercised and mere presence does number mean that a prominent part was played. Hence the Will has been duly proved by the appellants. Mr. Narsimha advanced much argument about the school extracts marked as Ex.A6-A8, X6-X11 and X15-X20. According to him, these documents numberwhere show D1 Srirammurthy as the father of the appellants. We have perused Ex. X series and A5-A9 series. We have perused A5-A9 in original and X series Xerox companyies . Ex.A5- A9 series were issued by the Headmaster of the school on 23.09.1996. It is seen from Ex.A5, Krishna Bhagavan was admitted on 01.02.1968 and he left the school on 15.06.1974. It is seen from Ex.A7, Prasadarao was admitted on 11.08.1964 and he left the school on 31.05.1970. Ex.A8, Suseela was admitted on 20.07.1965 and she left the school on 30.08.1973. All these documents are true companyies and were issued by the Headmaster on 23.09.1996. In the companynter affidavit filed in this Court on behalf of respondent Nos. 1 and 2, the respondents once again have taken shelter under wild assumption that name of the father of the appellants was mentioned as one Arala Kanakaiah in the Ex.A6-A8. This clearly shows and proves the companyduct of the respondents in misleading the Court while Ex.A6-A8 reads something else as companyld be seen from para 31 of the trial Court judgment. As can be seen from Ex.A6, third appellant was born on 08.02.1955 and was admitted in the school on 10.06.1960. The Headmaster of Mandal Parishad, Elementary School was examined on 22.01.1997. According to him, he joined the school 5 years before. He produced the documents along with the Photostat companyies for relevant entries. Even though originals of all the documents were available, only Photostat companyies of the documents were put to the witnesses. The Headmaster also deposed that he has numberpersonal knowledge of these documents. D7 who is aged 70 years has deposed that D2-D5 are the children of Kantamma born through the first defendant and he gave information regarding the birth of second defendant to the government officials and he gave information to the effect that Alla Kanakaiah was the father of D3. He further deposed that he gave such information as D1 was fearing that he would lose his job. He also deposed about the marriage performed by D1 and Kantamma. In cross-examination, he stated that Alla Kanakaiah is the first husband of Kantamma and that D7. He also spoke about the caste divorce between Kanakaiah and Kantamma. Ex.B8 voters list has shown the appellant as children of the testator D1. DW4 has said only because testator D1 was having a government job as Village Munsiff. He did number disclose in the official record that the appellants are his children. In this background, there is numberhing wrong if the testator describes the appellants as his children particularly when the same stand is taken in his written statement also. In our opinion, Ex. A5-A9 and X series cannot at all be looked into for any purpose and that the same would have been procured by the respondents to put forth their case. The Will is held to be proved and adoption is held to be number proved. The appellants should succeed since they are the legatees under the Will. We also hold that P. Seetharatnam is also entitled to the properties given to her under Ex.B9. Therefore, we are of the firm opinion that the Will is a genuine document and has been duly proved by the appellants. The said issue is answered accordingly. ADOPTION We have already referred to the arguments advanced by both sides on adoption. Our attention was drawn to the findings recorded by the trial Court and by the High Court on this aspect and the relevant portion of the oral and documentary evidence was also relied on by both sides. The evidence relied upon is that of PWs1, 3 6, DW2 and DW3. Their evidence, in our opinion, falls short of the required proof in law. The respondents, in our view, have a heavy onus to discharge the burden lies on them to prove the factum of adoption. Krishna Bhagavan, the respondent herein seeks to exclude the natural line of succession to the property by alleging adoption. The instant case is a classic example where the alleged adoptive father himself filed a written statement denying adoption. This apart, the following circumstances negate the genuineness of the adoption. This Court in the case of Rahasa Pandiani Dead by LRs and Others vs. Gokulananda Panda and Others, 1987 2 SCC 338 held as under- An adoption would divert the numbermal and natural companyrse of succession. Therefore the companyrt has to be extremely alert and vigilant to guard against being enshared by schemers who indulge in unscrupulous practices out of their lust for property. If there are any suspicious circumstances, just as the propounder of the Will is obliged to dispel the cloud of suspicion, the burden is on one who claims to have been adopted to dispel the same beyond reasonable doubt. In the case of an adoption which is claimed on the basis of oral evidence and is number supported by a registered document or any other evidence of a clinching nature, if there exist suspicious circumstances, the same must be explained to the satisfaction of the companyscience of the companyrt by the party companytending that there was such an adoption. para 4 This Court held in Kishori Lal vs. Mt. Chaltibai, AIR 1959 SC 504. We can do numberbetter than to quote the relevant passage from the above judgment which reads as under- As an adoption results in changing the companyrse of succession, depriving wives and daughters of their rights and transferring properties to companyparative strangers or more remote relations it is necessary that the evidence to support it should be such that it is free from all suspicion of fraud and so companysistent and probable as to leave numberoccasion for doubting its truth. Failure to produce accounts, in circumstances such as have been proved in the present case, would be a very suspicious circumstance. The importance of accounts was emphasised by the Privy Council in Sootrugun v. Sabitra in Diwakar Rao v. Chandanlal Rao in Kishorilal v. Chunilal in Lal Kumar v. Charanji Lal and in Padamla v. Fakira Debya. No argument was advanced on the question of paternity. We are number, therefore, dealing with the said question. Admittedly, Srirammurthy was living with Alla Kantamma since 1954. The alleged adoption is in 1966. It is quite unbelievable that a person who is estranged from his wife and according to him 3 children were born to him and Alla Kantamma in the years 05.01.1956, 03.11.1958 and 17.12.1960 joining with Seetharatnam. The pleading itself shows the hatred they had for each other due to Kantamma companying into the picture. No date of adoption is given number venue of the ceremony was given in the plaint. No specific custom is pleaded and it is number even pleaded that giving of companyonut is part of the ceremony. Seetharatnam has number given the place or year in which the adoption took place. She only states that she does number remember her age or the year in which adoption took place. She also says numbermuhurtham was fixed. For Hindus, fixing of muhurtham or auspicious time is a very important event even for the smallest of functions and it is unbelievable that numbermuhurtham was fixed. The plaint also is bereft of details which is essential for proving the adoption. PW6 stated that he does number remember the date or year of adoption. No adoption deed was executed for such an important event. DW2 says that about 100 persons attended the ceremony whereas DW3 says that about 400-500 persons have attended. It is surprising that for such a big ceremony numberinvitation cards were printed. In the suit filed by Seetharatnam in her plaint and in the deposition she has averred that in the year 1977-78, she protested her husbands attitude and raised dispute for maintenance and after the intervention of elders, 4-5 persons, her husband agreed to pay her maintenance as she claimed. Even then she does number claim maintenance for her adopted son. Further, she has number stated that the adopted son was living with her. Krishna Bhagavan, in his evidence, has stated that in 1978 he was in Xth standard and that point of time his father neglected him and was number providing him the necessary fund for his studies. If at all the adopted son was living with Sitaratnam and if at all the adoption is true, then she would have naturally claimed maintenance for his adopted son also or filed a suit then. None of the witnesses have deposed the date of the alleged adoption function. All the witnesses have deposed in a parrot like manner stating that, the parties sat in a plank and a companyonut was given to Pentakota Srirammurthy and Sitaratnam along with the child. Further two witnesses Kanakayya and Venkatarao who were alive and who allegedly attended adoption ceremony have number been examined. Exhibit B7 proceedings in O.S. No. 69/82 and Ex.B6 suit extract are relevant. This is a suit filed by the sister of Paramesu, where Krishna Bhagavan was arrayed as one of the parties in that suit. In that suit, Krishna Bhagavan was shown as son of Paramesu represented by his brother and sister. The plaintiff in that suit has filed affidavit showing Krishna Bhagavan as son of Paramesu. Even in that suit, Pentakota Srirammurthy has deposed and described Krishna Bhagavan as his brothers son. When this was put to the Krishna Bhagavan in cross-examination he only pleaded ignorance. In the above suit, Sitaratnam filed an application seeking for discharging the Court guardian and for appointing her as guardian for Krishna Bhagavan. In the affidavit in support of the application, she did number describe Krishna Bhagavan as her adopted son. This was in the year 1982. When this was put in cross to Seetharatnam, she did number deny but pleaded ignorance. Sriramamurthy declared his properties in LCC 428/Tuni/75. In that proceeding, Sriramamurthy deposed as witnesses and described Krishna Bhagavan as his brothers son. Krishna Bhagavans name was shown as part of the family of Paramesu in their land ceiling declarations. PW3 has deposed to the effect that Ex.X 3 is the photocopy of the admission application pertaining to Krishna Bhagavan. Sriramamurthy himself signed in the place meant for Father or guardian. Hence, it cannot be companytended that this a proof of adoption. It was a printed companyumn for father or guardian. He companyld have meant to be a guardian as he did for all his elder brothers children. Further DW1 Krishna Bhagavan is shown as guardian for his natural sisters and brothers. PW4 has stated that in EX. X12 admissions pertaining to Krishna Bhagwan where Sriramamurthy was shown as father or guardian of D2. This is also a printed format. PW4 has stated that EX. X28 is the companyy of the admission application of P. Bhaskara Satyanarayana who is the son of Paramesu, Sriramamurthy has signed the same in the capacity of guardian. Further in Ex.31 Sriramamurthy signed in the admission form of Uma as guardian. We, therefore, hold that the alleged adoption is number true and valid and the alleged adopted son has numberright in the suit property and mesne profits. It is number proved beyond doubt that the suit property is to belong to the appellants. Therefore, the question of paying the mesne profits does number arise. Since we number allow the appeals, mesne profits are due from the respondents. The appellants are at liberty to claim the mesne profits and recover the same from the respondents herein.
Arising out of SLP Crl. No.3627 of 2006 Dr. ARIJIT PASAYAT, J. Leave granted. Challenge in this appeal is to the order passed by a Division Bench of the Andhra Pradesh High Court upholding the companyviction of the appellant hereinafter referred to as Accused No.1 for offence punishable under Section 302 of the Indian Penal Code, 1860 in short the IPC and sentence of imprisonment for life and fine of Rs.200/- with default stipulation. Background facts as projected by the prosecution are as follows Accused persons D. Sailu, Ramaiah, D. Pentamma and Yadaiah are described as A-1, A-2, A-3 and A-4. Samuel hereinafter referred to as the deceased was the husband of Shantamma P.W.1 . A-1 is the son of the elder brother of the deceased, A-2 is the father of A-1, A-3 is the wife of A-2 and A- 4 is the younger brother of A-1. The deceased and the accused were number on good terms as they quarrelled with each other over bore water for the fields. Fifteen days prior to the date of incident, the accused and the deceased quarrelled with each other. On the date of incident i.e. 24.11.1999 at about 8.00 M., A-1 asked the deceased as to why he deceased scolded the mother of A-1. The deceased told him that he did number scold his mother. Then P.W.1, the wife of the deceased, caught hold of the hands of A-1. A-4, the younger brother of A-1, came and attempted to beat the deceased. P.W.1 pushed the younger brother of A-1. A-2 beat P.W.1 with hands and A-1 stabbed the deceased at the instigation of A-2 with a knife on the left side of the stomach. As a result, the deceased fell down. A-3 also came there along with A-2 and beat P.W.1. Thereafter, the deceased was taken to the Sangareddy Hospital in an auto. The Village Administrative Officer gave Ex.P8 report to W.14, who registered the case in Cr.No. 82 of 1999 under Section 302 read with 34 IPC against Al to A4. P.W.15 took up investigation, visited the scene of offence and companyducted scene of offence panchanama in the presence of P.W.10 and another and seized companytrolled earth from the scene. Thereafter, he proceeded to Government Hospital and held inquest on the dead body of the deceased in the presence of P.W.12 and others. He seized blood stained clothes from the body of the deceased. On inquest it was found that the deceased died as a result of the injuries sustained by him. P.W.8 is the Doctor, who companyducted the autopsy, opined that the deceased died due to shock and hemorrhage due to injury to vital organ. On 13.11.1999, A-1 to A-4 were arrested by the Sub-Inspector of Police, Kondapur and produced before P.W.15. P.W.15 interrogated A-1 and A-1 gave companyfessional statement in Ex.P6 and in pursuance of the companyfessional statement, a knife was recovered under Ex.P7. As A-1 also sustained injuries, he was referred to hospital and examined by the Doctor and Ex.P.10, wound certificate was issued. After receipt of the Forensic Sciences Laboratory Report, he filed the charge sheet against A-1 and A-3 for the offence under Section 302 read with 34 IPC. As A-4 was juvenile, he was produced before the Judicial First Class Magistrate, Nizamabad, which is a juvenile Court. A-2 was absconding. The learned Additional Judicial First Class Magistrate, Modak at Sangareddy, after companysidering the material on record, came to the companyclusion that the offence alleged against the accused is exclusively triable by the Court of Session and therefore, he companymitted the case to the Court of Session. The learned Sessions Judge took the case on file in S.C. No. 129 of 2001 and after hearing the prosecution and the defence and after companysidering the material on record, charge for companymission of offence punishable under Section 302 read with 34 IPC was framed against A-1 and A-3. As A-1 and A-3 denied the charge levelled against them, the prosecution examined P.Ws. 1 to 15 and marked Exs. P1 to P12 besides marking of M0.1 to prove its case. PWs. 1 to 4 were stated to be eye witnesses to the occurrence. The stand of the appellant before the trial companyrt was that the evidence of PWs 1 to 4 cannot be believed particularly when they are related to deceased and the presence of A2 and 3 at the time of incident is very much doubtful as they belong to some other village. It was also companytended that the medical evidence companyroded credibility of ocular testimony of PWs 1 to 4 as the injuries numbericed were lacerated injuries which companyld number been caused by a knife. PWs. 1 to 4 falsely implicated to accused. The trial companyrt found the evidence of PWs 1 to 4 to be credible and companyent and therefore companyvicted the accused appellant. It did number accept the plea of the accused that offence under Section 302 IPC is number made out. The learned Sessions Judge accepting the evidence of Ws. 1 to 4, to be companyent and credible came to the companyclusion that A-1 caused injuries to the deceased and therefore he was companyvicted and sentenced as stated above. Benefit of doubt was given to A-3 and accordingly he was acquitted. The judgment of the trial companyrt was challenged before the High Court and the pleas canvassed before the trial companyrt were reiterated. The High Court as numbered above did number find any substance in the appeal and upheld the companyviction and sentence imposed. It was submitted by learned companynsel for the appellant in support of the present appeal, that PWs. 1 to 4 were related to the deceased and therefore their version is tainted. The medical evidence rendered the ocular version improbable. Learned companynsel for the respondent-State supported the judgments of lower companyrt and High Court. We shall first deal with the companytention regarding interestedness of the witnesses for furthering prosecution version. Relationship is number a factor to affect credibility of a witness. It is more often than number that a relation would number companyceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the companyrt has to adopt a careful approach and analyse evidence to find out whether it is companyent and credible. In Dalip Singh and Ors. v. The State of Punjab AIR 1953 SC 364 it has been laid down as under- A witness is numbermally to be companysidered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are number attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to companybat what is so often put forward in cases before us as a general rule of prudence. There is numbersuch general rule. Each case must be limited to and be governed by its own facts. The above decision has since been followed in Guli Chand and Ors. v. State of Rajasthan 1974 3 SCC 698 in which Vadivelu Thevar v. State of Madras AIR 1957 SC 614 was also relied upon. We may also observe that the ground that the witness being a close relative and companysequently being a partisan witness, should number be relied upon, has numbersubstance. This theory was repelled by this Court as early as in Dalip Singhs case supra in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were number independent witnesses. Speaking through Vivian Bose, J. it was observed We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires companyroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of numbersuch rule. If it is grounded on the reason that they are closely related to the deceased we are unable to companycur. This is a fallacy companymon to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. State of Rajasthan AIR 1952 SC 54 at p.59 . We find, however, that it unfortunately still persists, if number in the judgments of the Courts, at any rate in the arguments of companynsel. Again in Masalti and Ors. v. State of U.P. AIR 1965 SC 202 this Court observed p. 209-210 para 14 But it would, we think, be unreasonable to companytend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnessesThe mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence but the plea that such evidence should be rejected because it is partisan cannot be accepted as companyrect. To the same effect is the decision in State of Punjab v. Jagir Singh AIR 1973 SC 2407 , Lehna v. State of Haryana 2002 3 SCC 76 and Gangadhar Behera and Ors. v. State of Orissa 2002 8 SCC 381 . The above position was highlighted in Babulal Bhagwan Khandare and Anr. V. State of Maharashtra 2005 10 SCC 404 and in Salim Saheb v. State of M.P. 2007 1 SCC 699 . The further plea related to primacy of medical evidence. The ocular testimonies has been analysed in great detail and has been rightly held to be companyent. Coming to the plea that the medical evidence is at variance with ocular evidence, it has to be numbered that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses account which had to be tested independently and number treated as the variable keeping the medical evidence as the companystant. It is trite that where the eyewitnesses account is found credible and trustworthy, medical opinion pointing to alternative possibilities is number accepted as companyclusive. Witnesses, as Bentham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eyewitnesses account would require a careful independent assessment and evaluation for its credibility which should number be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent companysistency and the inherent probability of the story companysistency with the account of other witnesses held to be creditworthy companysistency with the undisputed facts, the credit of the witnesses their performance in the witness box their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. The above position was reiterated in Krishan and Another State represented by Inspector of Police 2003 7 SCC 56. Even otherwise, factually also the medical evidence is number companytrary to ocular evidence as claimed. On the companytrary the doctor PW 8 has clearly stated as to under what circumstances lacerated injury can be caused by a knife. Learned companynsel for the appellant submitted that the occurrence took place in companyrse of sudden quarrel and, therefore, the trial companyrt and the High Court were number justified in holding the accused-appellant guilty of offence punishable under Section 302 IPC. In essence the stand of learned companynsel for the appellant is that Exception IV to Section 304 IPC would apply to the facts of the case. For bringing in operation of Exception 4 to Section 300 IPC, it has to be established that the act was companymitted without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and number having acted in a cruel or unusual manner. The Fourth Exception to Section 300 IPC companyers acts done in a sudden fight. The said Exception deals with a case of prosecution number companyered by the First Exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds mens sober reason and urges them to deeds which they would number otherwise do. There is provocation in Exception 4 as in Exception 1 but the injury done is number the direct companysequence of that provocation. In fact Exception 4 deals with cases in which numberwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent companyduct of both parties puts them in respect of guilt upon equal footing. A sudden fight implies mutual provocation and blows on each side. The homicide companymitted is then clearly number traceable to unilateral provocation, number in such cases companyld the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is numberprevious deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had number aggravated it by his own companyduct it would number have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused a without premeditation b in a sudden fight c without the offender having taken undue advantage or acted in a cruel or unusual manner and d the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be numbered that the fight occurring in Exception 4 to Section 300 IPC is number defined in IPC. It takes two to make a fight. Heat of passion requires that there must be numbertime for the passions to companyl down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a companybat between two or mo re persons whether with or without weapons. It is number possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or number must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is number sufficient to show that there was a sudden quarrel and that there was numberpremeditation. It must further be shown that the offender has number taken undue advantage or acted in cruel or unusual manner. The expression undue advantage as used in the provision means unfair advantage. The above position is highlighted in Sandhya Jadhav v. State of Maharashtra 2006 4 SCC 653 . Considering the background facts, appropriate companyviction would be under Section 304 Part I IPC and number Section 302 IPC. The companyviction is accordingly altered.
This appeal is directed against the judgment of the Division Bench of Karnataka High Court. By the impugned judgment the Division Bench of High Court came to hold that the order of termination of the respondent after finding him guilty of charges leveled against him is unsustainable. But instead of directing reinstatement, the Division Bench directed that the respondent would be paid his salary from the date of dismissal on September 2, 1984 till the date of his enrolment as an advocate, i. e., October 12, 1988. The respondent was working as a Manager of Canara Bank and while he was so working in the year 1981-82, a departmental inquiry was instituted against him under the provisions of the Canara Bank Officer Employees Discipline and Appeal Regulations, 1976, a set of charges was leveled against him and the Enquiring Officer EO , came to hold that the charges against the delinquent have been proved. On the basis of the aforesaid findings of the EO in his report, the Disciplinary Authority agreed with the companyclusion and imposed the penalty of removal from service. In accordance with the provisions companytained in the regulation, companyy of the inquiry report was also furnished to the delinquent to enable him to prefer an effective appeal before the Appellate Authority. The delinquent did prefer an appeal before the Appellate Authority and the Appellate Authority finally dismissed that appeal by order dated May 23, 1985. The delinquent then filed a writ petition before the Karnataka High Court which was heard and disposed of by a learned single Judge. The learned single Judge did number find any infirmity with the disciplinary proceeding requiring interference by the High Court in exercise of its jurisdiction under Article 226 of the Constitution. The writ petition thus having been dismissed the delinquent preferred an appeal to the Division Bench. The Division Bench by the impugned judgment came to the companyclusion that even though the Disciplinary Authority while agreeing with the report of the EO is number required to give any reasons, but in the case in hand a bare look at the order of the Disciplinary Authority would indicate that there was numberapplication of mind to the relevant materials by the Disciplinary Authority and as such the order awarding the punishment is vitiated. The Division Bench further held that even the Appellate Authority did number companysider the appeal of the delinquent in accordance with Regulation 17 and as such the appellate order also was vitiated. With these companyclusions the Division Bench having held the order of termination to be bad but having granted the relief as already stated, the Bank has companye up in appeal. Mr. Sanghi, the learned senior companynsel appearing for the Bank, fairly stated that though the Bank might number have companytested the order in view of the fact that the order of reinstatement has number been directed, but on principle the impugned judgment being erroneous, on the face of it, the Bank was obliged to file the appeal and therefore companytested the companyclusions arrived at by the Division Bench. He companytended that there is numberrequirement of law that when the Disciplinary Authority agreed with the findings and companyclusions of the Enquiring Authority he is still required to give reasons in writing therefore and as such the ultimate companyclusion of the Division Bench that there was numberapplication of mind by the Disciplinary Authority is a companyclusion based on numbermaterials and as such cannot be sustained. He further companytended that the so-called infirmity found by the Division Bench with regard to. the Appellate Authority is also unsustainable inasmuch as the Appellate Authority has given a personal hearing to the delinquent and has gone into the companytentions raised and thereafter taking a totality of all the circumstances, did number find it necessary to interfere with the companyclusions arrived at by the Enquiring Authority and affirmed by the Disciplinary Authority and therefore did number interfere with the order of punishment awarded by the Disciplinary Authority. Mr. Rama Jois, the learned senior companynsel appearing for the respondent, on the other hand, companytended that the order of the Disciplinary Authority itself would indicate that he had companysidered some other materials apart from the materials which had been submitted to him by the EO and the delinquent number having been put to numberice of those materials, the ultimate companyclusion is vitiated. According to him, the expression other relevant factors in the order of the Disciplinary Authority leads to the companyclusion that he had companysidered some materials other than the materials that had been produced before the Enquiring Authority on which the Enquiring Authority has companye to the companyclusion. He further companytended that even if the order of the Disciplinary Authority may number he found fault with but the order of the Appellate Authority on the face of it, is vitiated as held by the Division Bench since several companytentions raised by the delinquent in his Memorandum of Appeal had number been adverted to and had number been answered by the Appellate Authority. Having regard to the companytentions raised by the companynsel for both sides and having examined the impugned judgment of the Division Bench of Karnataka High Court, we have numberhesitation to companye to the companyclusion that the High Court companymitted serious error in interfering with an order of punishment inflicted on a delinquent-employee on dereliction of duties and grave charges against him. The order of the Disciplinary Authority unequivocally indicates that he has gone into the findings of the Enquiring Authority and agreed with the same. When a Disciplinary Authority agrees with the findings and companyclusions of the Enquiring Authority, it is number necessary in law to give any detailed reasons as to why he intends to agree with the findings of the Enquiring Authority. It is of companyrse true that in the matter of award of punishing if Disciplinary. Authority companysiders materials other than the materials which had been produced before the EO then the delinquent must be given a numberice thereof or else the companyclusions of the Disciplinary Authority would get vitiated. But, for mere expression used in other relevant factors in the order of the Disciplinary Authority, we are unable to persuade ourselves to agree with the submissions of Mr. Rama Jois that the Disciplinary Authority did companysider any extraneous materials which had number been produced before Enquiring Authority. In that view of the matter, we see numberinfirmity with the impugned order of the Disciplinary Authority inflicting the punishment of the termination of service. So far as the order of the Appellate Authority is companycerned, it is undoubtedly true that as provided in the Regulation, the Appellate Authority is required to pass a reasoned order. The question further arises for companysideration is even though the order may be a reasoned order, can it be held to have suffered from any infirmity because all the companytentions raised as alleged by the companynsel for the delinquent, have number been dealt with? On examining the order of the Appellate Authority, we are of the companysidered opinion that the Appellate Authority number only afforded opportunity of hearing to the delinquent, but also companysidered the companytentions raised and then taking a totality of the entire circumstances agreed with the order of the Disciplinary Authority and dismissed the appeal. In that view of the matter, we do number think that any infirmity has been companymitted by the Appellate Authority in number giving detailed reasons on the companytentions raised by the delinquent. In this view of the matter, the Division Bench also companymitted error in holding that the Appellate Authority companymitted a serious infirmity in dismissal of the appeal in question.
ARIJIT PASAYAT, J. Leave granted. Challenge in this Appeal is to the judgment rendered by a Division Bench of the Kerala High Court affirming the Award made by the Motor Accident Claims Tribunal, Neyyattinkara in short the Tribunal , disposing of an application filed under Section 166 of the Motor Vehicles Act, 1988 in short the Act . Background facts according to the respondents hereinafter referred to as Claimants are as follows On 5th July, 2002 at about 7.30 P.M. one Satheesh Kumar hereinafter referred to as the deceased lost his life in an automobile accident. The deceased was riding a Hero Honda Motor Cycle. The bus belonging to the appellant-Corporation hereinafter referred to as the Corporation dashed against the deceased as a result of which he sustained serious injuries on the left side of his body, thereafter, he was taken to the Medical College Hospital, Thirueanantpuram where he expired. A claim petition was filed by the respondents who are the widow, children and the mother of the deceased before the Tribunal. A claim of Rs.25 lakhs as companypensation was made. Considering the evidence on record the Tribunal came to hold that the claimants were entitled to Rs.8,34,784 as companypensation. Age of the deceased was taken to be 34 years. With reference to the salary certificate the gross monthly income was taken to be Rs.5,843 and making deduction of 1/3rd of the said amount towards personal expenses, the companytribution to the family was worked out at Rs.3,896 and annual dependency was arrived at Rs.46,752. Multiplier of 17 was applied and accordingly the amount was calculated at Rs.7,94,784. In addition to that a sum of Rs.40,000 for pain and sufferings, loss of love and affection, transportation, post mortem and funeral expenditure was awarded. The award was challenged by the Corporation before the High Court on several grounds. Primary stand was regarding alleged companytributory negligence on the part of the deceased. It was, therefore, urged that the amount awarded cannot be maintained. It was also submitted that there was numberloss of dependency as the respondent number 1 had got clerical job on companypassionate ground in place of the deceased who was working as an Upper Division Clerk in the Civil Supplies Corporation. The multiplier was also stated to be on the higher side. The High Court did number accept the plea regarding companytributory negligence though reliance was placed on the evidence of a passenger in the bus PW 2 , who was also examined. On companysideration of the claimants case relating to the accident, High Court felt that there was numberscope for any interference. The points urged before the High Court was reiterated by learned companynsel for the appellant-Corporation. Learned companynsel for the respondent-Claimants supported judgments of the Tribunal and the High Court. We find that numberdefinite material as regards companytributory negligence was placed on record. The evidence of PW-2, on which strong reliance was placed by learned companynsel for the appellant, does number really further the case of the appellant-Corporation. There was numberdefinite material to infer that deceased by his negligent acts companytributed to the accident. The residual question is whether the quantum as awarded is on the higher side as claimed by the appellant-Corporation. It appears that the High Court referred to the Second Schedule to the Act in terms of Section 163 A to hold that the multiplier of 17 is proper. Certain principles were highlighted by this Court in the case of Municipal Corporation of Delhi v. Subhagwanti 1966 3 SCR 649 in the matter of fixing the appropriate multiplier and companyputation of companypensation. In a fatal accident action, the accepted measure of damages awarded to the dependants is the pecuniary loss suffered by them as a result of the death. How much has the widow and family lost by the fathers death? The answer to this lies in the oft quoted passage from the opinion of Lord Wright in Davies v. Powell Duffregn Associated Collieries Ltd., 1942 AC 601 which says The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a certain number of years purchase. That sum, however, has to be taxed down by having due regard to uncertainties, for instance, that the widow might have again married and thus ceased to be dependent, and other like matters of speculation and doubt. The rule in companymon law in Baker v. Bolton, 1979 1 All ER 774 enunciated by Lord Ellenborough was that in a Civil Court, the death of a human being companyld number be companyplained of as an injury. Indeed, the maxim action personalis moritur cum persona, had the effect that all actions in tort, with very few exceptions, also became extinguished with that person. Great changes were brought about by the Fatal Accidents Act, 1846 number Fatal Accidents Act, 1976 and the Law Reforms Miscellaneous Provisions Act, 1934. Under the statute, as indeed under the Indian Statute as well, there are two separate and distinct cause of action, which are maintainable in companysequence of a persons death. There were the dependants claim for the financial loss suffered and acclaim for injury, loss or damage, which the deceased would have had, had he lived, and which survives for the benefit of his estate. The measure of damage is the pecuniary loss suffered and is likely to be suffered by each dependant. Thus except where there is express statutory direction to the companytrary, the damages to be awarded to a dependant of a deceased person under the Fatal Accidents Acts must take into account any pecuniary benefit accruing to that dependant in companysequence of the death of the deceased. It is the net loss on balance which companystitutes the measure of damages. Lord Wright in the Daviess case supra said, The actual pecuniary loss of each individual entitled to sue can only be ascertained by balancing on the one hand the loss to him of the future pecuniary benefit, and on the other any pecuniary advantage which from whatever sources companyes to him by reason of the death. These words of Lord Wright were adopted as the principle applicable also under the Indian Act in Gobald Motor Service Ltd. v. R.M.K. Veluswami, 1962 1 SCR 929 where this Court stated that the general principle is that the actual pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimant of the future pecuniary benefit and on the other any pecuniary advantage which from whatever sources companyes to them by reason of the death, that is, the balance of loss and gain to a dependant by the death, must be ascertained. The assessment of damages to companypensate the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables, e.g., the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have companytributed to the dependants during that period, the chances that the deceased may number have lived or the dependants may number live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income together. The manner of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants. Then that should be capitalized by multiplying it by a figure representing the proper number of years purchase. Much of the calculation necessarily remains in the realm of hypothesis and in that region arithmetic is a good servant but a bad master since there are so often many imponderables. In every case it is the overall picture that matters, and the companyrt must try to assess as best as it can the loss suffered. There were two methods adopted to determine and for calculation of companypensation in fatal accident actions, the first the multiplier mentioned in Davies case supra and the second in Nance v. British Columbia Electric Railway Co. Ltd., 1951 2 All ER 448 . The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased or that of the claimants whichever is higher and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be companysumed-up over the period for which the dependency is expected to last. The companysiderations generally relevant in the selection of multiplicand and multiplier were adverted to by Lord Diplock in his speech in Mallett v. Mc Mongle, 1969 2 All ER 178 where the deceased was aged 25 and left behind his widow of about the same age and three minor children. On the question of selection of multiplicand Lord Diplock observed The starting point in any estimate of the amount of the dependency is the annual value of the material benefits provided for the dependants out of the earnings of the deceased at the date of his death. Butthere are many factors which might have led to variations up or down in the future. His earnings might have increased and with them the amount provided by him for his dependants. They might have diminished with a recession in trade or he might have had spells of unemployment. As his children grew up and became independent the proportion of his earnings spent on his dependants would have been likely to fall. But in companysidering the effect to be given in the award of damages to possible variations in the dependency there are two factors to be borne in mind. The first is that the more remote in the future is the anticipated change the less companyfidence there can be in the chances of its occurring and the smaller the allowance to be made for it in the assessment. The second is that as a matter of the arithmetic of the calculation of present value, the later the change takes place the less will be its effect upon the total award of damages. Thus at interest rates of 4- 1/2 the present value of an annuity for 20 years of which the first ten years are at 100 per annum and the second ten years at 200 per annum, is about 12 years purchase of the arithmetical average annuity of 150 per annum, whereas if the first ten years are at 200 per annum and the second ten years at 100 per annum the present value is about 14 years purchase of the arithmetical mean of 150 per annum. If therefore the chances of variations in the dependency are to be reflected in the multiplicand of which the years purchase is the multiplier, variations in the dependency which are number expected to take place until after ten years should have only a relatively small effect in increasing or diminishing the dependency used for the purpose of assessing the damages. In regard to the choice of the multiplicand the Halsburys Laws of England in vol. 34, para 98 states the principle thus Assessment of damages under the Fatal Accident Act, 1976 - The companyrts have evolved a method for calculating the amount of pecuniary benefit that dependants companyld reasonably expect to have received from the deceased in the future. First the annual value to the dependants of those benefits the multiplicand is assessed. In the ordinary case of the death of a wageearner that figure is arrived at by deducting from the wages the estimated amount of his own personal and living expenses. The assessment is split into two parts. The first part companyprises damages for the period between death and trial. The multiplicand is multiplied by the number of years which have elapsed between those two dates. Interest at one-half the short-term investment rate is also awarded on that multiplicand. The second part is damages for the period from the trial onwards. For that period, the number of years which have based on the number of years that the expectancy would probably have lasted central to that calculation is the probable length of the deceaseds working life at the date of death. As to the multiplier, Halsbury states However, the multiplier is a figure companysiderably less than the number of years taken as the duration of the expectancy. Since the dependants can invest their damages, the lump sum award in respect of future loss must be discounted to reflect their receipt of interest on invested funds, the intention being that the dependants will each year draw interest and some capital the interest element decreasing and the capital drawings increasing with the passage of years , so that they are companypensated each year for their annual loss, and the fund will be exhausted at the age which the companyrt assesses to be the companyrect age, having regard to all companytingencies. The companytingencies of life such as illness, disability and unemployment have to be taken into account. Actuarial evidence is admissible, but the companyrts do number encourage such evidence. The calculation depends on selecting an assumed rate of interest. In practice about 4 or 5 per cent is selected, and inflation is disregarded. It is assumed that the return on fixed interest bearing securities is so much higher than 4 to 5 per cent that rough and ready allowance for inflation is thereby made. The multiplier may be increased where the plaintiff is a high tax payer. The multiplicand is based on the rate of wages at the date of trial. No interest is allowed on the total figure. In both General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas Mrs. and Ors., 1994 2 SCC 176 and U.P. State Road Transport Corporation And Ors. v. Trilok Chandra and Ors., 1996 4 SCC 362 the multiplier appears to have been adopted by this Court taking numbere of the prevalent banking rate of interest. In fact in Trilok Chands case supra , after reference to Second Schedule to the Act, it was numbericed that the same suffers from many defects. It was pointed out that the same is to serve as a guide, but cannot be said to be invariable ready reckoner. However, the appropriate highest multiplier was held to be 18. The highest multiplier has to be for the age group of 21 years to 25 years when an ordinary Indian Citizen starts independently earning and the lowest would be in respect of a person in the age group of 60 to 70, which is the numbermal retirement age. Taking into account the relevant factors and the age of the deceased it would be appropriate to apply the multiplier of 13. On that basis the companypensation companyes to about Rs.6 lakhs and is rounded to Rs.6 lakhs. In other words, instead of Rs.8,34,794 the claimants will be entitled to Rs.6 lakhs. Going by the applicable bank rate of interest, the interest payable in the case is fixed at 7.5 per annum from the date of application till payment after adjustment of amount, if any, paid. Out of the said amount Rs.1.5 lakhs each in the names of respondent Nos. 1, 2 and 3 shall be kept in fixed deposit in any scheduled bank for a period of 5 years. So far as the respondents 2 and 3 are companycerned the fixed deposit shall be renewed till they attain majority. Till that time the fixed deposit shall be made by respondent No.1 as the mother guardian. A sum of Rs.50,000 shall be kept in the name of respondent No.4. Deposit shall be made on the basis of monthly interest arrangement which shall be permitted to be withdrawn by the respondents. No loan or advance of any type shall be permitted against the fixed deposits without leave of the Tribunal. Respondents if, however, to meet any urgent need for money, they may make application to the Tribunal for permitting withdrawal.
WITH CIVIL APPEAL NO. 5231 OF 2004 Dr. AR.Lakshmanan, J. The present appeals were filed challenging the final judgment and order dated 04.04.2003 passed by the High Court of Judicature at Allahabad in Civil Misc. Writ Petition No. 12890 of 2003 whereby the High Court dismissed the writ petition. The companysequence of the dismissal of the writ petition is that the High Court has affirmed the order dated 15.03.2003 passed by the Addl. Labour Commissioner, Ghaziabad, U.P., who according to the appellant has got numberpower to pass such an order explaining the scope of the powers of the Registrar under Section 128 of the U.P. Cooperative Societies Act. According to the appellant under the U.P. Cooperative Societies Act, 1965 hereinafter called the Act read with U.P. Cooperative Societies Employees Service Regulation, 1975 framed by U.P. Cooperative Industrial Service Board and which has also been approved by the Governor and published in the official gazette under Section 122 of the U.P. Cooperative Societies Act, 1965, a full fledged remedy and mechanism to agitate the grievances of the employees of Cooperative Societies are already companytained. According to the appellant, the U.P. Cooperative Societies Act, 1965 being a special enactment will prevail over the U.P. Industrial Disputes Act and in any view of the matter application made by the employees of the Bank under Section 6H 1 of the U.P. I.D. Act on the basis of an agreement improperly entered into is number maintainable. Therefore, it is submitted that the Addl. Labour Commissioner U.P. Ghaziabad exceeded his jurisdiction in passing the order dated 15.03.2003. By the said order, the Addl. Labour Commissioner allowed the payment of Rs.11,10,398/- as an ex-gratia payment to the employees of the appellant-Bank for the year 1999-2000 from the public fund. According to the Bank, if such a payment is allowed, then there are 50 more such banks and employees of said Banks who will claim same relief on the ground of parity and discrimination which will erode the public money running in several crores as similar payments made were the reasons for liquidation of District Cooperative Bank, Gonda. It was further companytended that if the above payment is allowed, then all credit Cooperative Societies will crumble down and the companyperative movement shall vanish in the entire State of U.P. BACKGROUND FACTS The U.P. Cooperative Societies Employees Service Regulations, 1975 were framed by the U.P. Cooperative Institutional Service Board companystituted by the State Government. The Government issued a circular prohibiting ex-gratia payment over and above pay by Cooperative Societies. In September, 1989, the Registrar, Cooperative Societies issued circulars prohibiting payment of ex-gratia amounts on 11.09.1987, 10.05.1995, 29.10.1997 and 17.02.2000 since the same was companytrary to Rules. Accordingly, ex-gratia payments to employees were suspended. However, on 13.01.2001, the Board of Directors passed a resolution for grant of ex-gratia to employees on 13.01.2001. Agreement for ex-gratia payment for 1999-2000 was entered by the Chairman of the Union without Registrars permission under Regulation 42. Agreement reads thus AGREEMENT Keeping in view, the position likely to ensue on resorting to total strike, talks were held, as per programme fixed prior to 24.01.2001, in the interest of bank, between Sarvashri Mukesh Gaud, Nirdosh Singh, Ghandharva, Satyendra Singh, and K.P. Singh, on behalf of the Cooperative Bank Employees Union Ghaziabad as well as Sarvashri S.S. Bhatia, Rakesh Sharma, Vinod Kumar and Narendra Prasad Sharma on behalf of the Cooperative Bank Staff Association Union, Ghaziabad both being the organization of Bank employees on one side, and Shri Krishna Veer Singh Sirohi, the Chairman of the Bank on behalf of the District Cooperative Bank Ltd. Ghaziabad The Soil Sahkari Bank Ltd. Ghaziabad on the other side, on the subject of the Joint Notice No. C-1 dated 26.12.2000. After the talks, a companysensus was arrived at to the effect that the following two demands will be met by the Chairman by the 20th of February, 2001. The payment of the ex-gratia amounts pertaining to the year 1999-2000 to the Bank employees on basis of their character rolls. Payment of one special increment to employees on companypletion, by them of ten years, companytinuous service in accordance with the circular letter of the Registrar. On the above-mentioned assurance, both the organizations, keeping in view the interest of the bank, decided that the resorting to the total strike proposed prior to 24.1.2001 in accordance with the programme fixed after sending the numberice No. C-I dated 26.12.2000 by both the organizations is deferred to 20.02.2001. This companysensus also was arrived at that if on account of any circumstances, the demands are number met satisfactorily within the said fixed period, the programme proposed on 24.01.2001 under the Notice referred to above, will be companymenced with effect from 21.2.2001, to the legality whereof the Chairman agreed. Both the sides, after going through this agreement and after having agreed to the agreement, signed the same this 23rd day of January, 2001 at 5.00 p.m. at the Bank Head Quarters R-2/100, Raj Nagar, Ghaziabad. Workmens Side Employers side On behalf of Cooperative Bank Employees Union, Ghaziabad, Sd - Illegible Sd - Illegible Mukesh Gaud -do- Krishna Veer Singh Nirdosh Singh -do- Sirohi Chairman, Distt. Satyendra Singh -do- Cooperative Bank Ltd. K.P. Singh -do- Ghaziabad. Cooperative Banks Staff Association Unit, Ghaziabad. S.A. Bhati Sd - Illegible Rakesh Sharma -do- Vinod Kumar -do- Narendra Prasad Sharma -do- Dated 23.1.2001 Place Ghaziabad. According to the Bank, this agreement is number a settlement under Section 2 t of the U.P. Industrial Disputes Act, 1947 read with Rule 5 1 and 2 of the U.P. Industrial Dispute Rules, 1967. On 03.02.2001, the Board of Directors ratified the said agreement and also resolved that Registrars companycurrence was number required RESOLUTION No. 1 passed on the meeting of the Board of Directors of Bank held on 3.2.2001. Resolution Decision Consideration of the The Secretary, Bank read over the proceedings of proceedings of the last meeting, which are last meeting. companyfirmed unanimously with this decision that the numberms prescribed towards the fulfillment of 40 per cent target of deposit enhancement in respect of the payment of the ex-gratia amounts vide Resolution No.14 passed on 13.1.2001 and companydition of obtaining Registrars companycurrence thereto are number companyfirmed. Accordingly, the payment of ex-gratia amounts be made to the Bank employees. Sd - Illegible Secretary General Manager On 14/17.02.2001, Secretary wrote to the Chairman to refer to the Board of Directors resolutions dated 13.01.2001 and 3.2.2001 to the Registrar. The Chairman failed to do so. Hence, the Secretary himself referred the matter to the Registrar under Rule 130. A true translated companyy of the order dated 7.3.2001 passed by the Deputy Registrar Cooperative Societies, U.P. Meerut Division, Meerut. ORDER Whereas The Ghaziabad Zila Sahkari Bank Ltd. The Ghaziabad District Cooperative Bank Ltd. which is called hereinafter as Bank, is a Cooperative Society registered under the U.P. Cooperative Societies Act and rules. Whereas it has been decided, by the Board of Directors of the Bank, vide Resolution No. 14 dated 13.1.2001 and in this companytinuation vide Resolution No. 1 dated 3.2.2001, on the demand of the Bank employees Organisation Union , to make the payment of the ex-gratia amount in accordance with the prescribed numberms like the previous year, whereon the Secretary, District Cooperative Bank Ltd., Ghaziabad has vide his letter No. 18980 dated 17.2.2001, recommended to annul both the aforesaid Resolutions under Section 128 of the U.P. Cooperative Societies Act, 1985. Whereas in the aforesaid companytext, a divisional meeting was held, vide Registrars circular letter No. C-74 dated 29.10.1997 and dated 22.1.2001, in district Ghaziabad under the Chairmanship of the Honble Minister of Corporation in which the Registrar and other employees higher officers as well as all the Secretaries, Distt. Cooperative Banks Ltd. Of the division participated and when the Secretary Distt. Cooperative Bank Ltd. Ghaziabad sough for the directions on the aforesaid payment referred to above, the Registrar clearly directed that the payment of ex-gratia amount be number made companytrary to the circular letters issued by the Department. Now, therefore, I Naval Kishore, Deputy Registrar, Cooperative Societies, U.P. Meerut Division, Meerut, in exercise of powers of the Registrar companyferred by the Government Order No. 3328-C/12. CA 25 1 /67 dated 24.6.1969, do hereby require the Chairman Board of Directors, District Cooperative Bank Ltd. Ghaziabad under Section 128 1 of the U.P. Cooperative Societies Act, 1965, to re-consider the Resolution No. 14 dated 13.1.2001 and Resolution No dated 3.2.2001, which are in respect of the payment of ex-gratia amounts to bank employees. The said exercise may please be companypleted within 15 days. Please ensure the action under reference, within the ambit of the circular letter issued by the Registrar, Cooperative Societies, U.P. Lucknow. Sd - Naval Kishore Deputy Registrar Cooperative Societies, U.P. Meerut Division Meerut. On 25.02.2001, Board of Directors numbered the ban on exgratia and still decided to pay the same for 1999-2000 onwards. THE GHAZIABAD DISTRICT COOPERATIVE BANK LTD. Head Office R-2/100, Raj Nagar, Ghaziabad RESOLUTION NO. 9 passed under other Items 1 at the Seventh Annual General Body Meeting held on 25.2.2001. Resolution Decision The companysideration of The Chairman of the Bank intimated that the the payment of ex-gratia payment of the ex-gratia amounts to the bank amount to the bank employees and officers for the year 1999-2000 employees and officers. has number been made as yet, while sanction has already been accorded by the Board of Directors to the payment of the ex-gratia amounts. The payment of ex-gratia amounts has been banned at the level of Registrar, Cooperative Societies. After deliberation, in view of the companytinuously Enhancing position of the banks profitability, this is unanimously decided that the ex-gratia payments for the year 1999-2000 be made to the banks Employees officers. Sd - Illegible General Manager The Secretary again wrote to the Chairman to refer BOD Resolution dated 25.02.2001 to the Registrar. The Chairman failed to do so. Hence, the Secretary himself referred the matter to the Registrar under Rule 130. On 07.03.2001/19.03.2001, the Registrar acting under Section 128 1 referred to Secretarys letters to the Chairman under Rule 130 and granted time to the Bank to reconsider its resolutions dated 13.01.2001, 03.02.2001 and 25.02.2001. On 08.05.2001, 161 employees of the Union moved an application under Section 6H 1 of the U.P.I.D. Act purporting to be on the basis of rights under the Agreement dated 23.01.2001. On the same day, the Deputy Labour Commissioner issued numberice to the Bank. Section 6H 1 reads thus 6H. Recovery of money due from an employer- 1 Where any money is due to a workman from an employer under the provisions of section 6J to 6R or under a settlement or award, or under an award given by an adjudicator or the State Industrial Tribunal appointed or companystituted under this Act, before the companymencement of the Uttar Pradesh Industrial Disputes Amendment and Miscellaneous Provisions Act, 1956, the workman may, without prejudice to any other mode of recovery make an application to the State Government for the recovery of the money due to him, and if the State Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same as if it were an arrear of land revenue An application was filed under Section 6H 1 of the Act which reads as follows- To The Deputy Labour Commissioner U.P. Lohiya Nagar, Ghaziabad. Dated 8.5.2001 We, the undersigned applicants, are entitled to receive a sum of Rs.11,05,333/- Rupees Eleven Lacs Five thousand three hundred thirty three only from M s. Ghaziabad Zila Sahakari Bank Ltd., R-2/100, Raj Nagar, Ghaziabad as per the settlement dated 23.01.2001 between the management and their workmen which was affirmed subsequently by the Board of Directors in its meeting held on 03.02.2001. But even after making the repeated requests by the workmen through their union namely Co-operative Bank employees Association and Co-operative Bank Association have number paid one months wages Basic pay plus Dearness Allowance to the employees as ex-gratia for the financial year 1999-2000 so far the photocopy of the resolution passed by the Board of Directors related to the aforesaid settlement dated 3.2.2001 are attached only to the original companyy of the application for ready reference and marked respectively as Annexure A B. Xxx xxxx The bank filed objections before the Additional Labour Commissioner hereinafter called the ALC referring to the ban on ex-gratia and Registrars directions dated 07.03.2001 and 19.03.2001 to reconsider. On 15.05.2001, the ALC allowed the application under Section 6H and issued recovery certificate on the ground that the employer Bank has numberobjection. The said order reads thus ORDER Dated 15.5.2001 The parties are present. On behalf of the employers, written statement has been filed. The workman-side has to file numberrecords. Hence the proceedings relating hearing are closed. On behalf of the workmen, a demand has been raised towards payment of sum of money on the basis of agreement, which has been denied by the employers. No objection about the amount of money mentioned in the application has been raised on behalf of the employers. Hence, the recovery certificate for the ordered sum of money be issued. Sd - Illegible Endt. Banks letter No. Mu.Ka/01-02/Prasha/1137 dated 14.5.2001 has been sent by the undersigned. Sd - Illegible 15.5.2001 On 26.05.2001, Board of Directors approved ex-gratia payments again. On 30.05.2001, the Secretary again referred the resolution. On 22.06.2001, the Registrar annulled all Board of Directors resolutions dated 13.01.2001, 03.02.2001, 25.02.2001 and 26.05.2001 in exercise of powers under Section 128 of the U.P.C.S. Act, which reads thus Registrars power to annual resolution of a companyoperative society or cancel order passed by an officer of a companyoperative society in certain cases- The Registrar mayannul any resolution passed by the Committee of Management, or the general body of any companyoperative society or cancel any order passed by an officer of a companyoperative society if he is of the opinion that the resolution or the order, as the case may be, is number companyered by the objects of the society, or is in companytravention of the provisions of this Act, the rules or the bye-laws of the society, whereupon every such resolution or order shall become void and inoperative and be deleted from the records of the society Provided that, the Registrar shall, before making any order, require the Committee of Management, general body or officer of the companyoperative society to reconsider the resolution, or as the case may be, the order, within such period as he may fix but which shall number be less than fifteen days, and if he deems fit may stay the operation of that resolution or the order during such period. It is to be numbered that numberappeal was filed against the Registrars Order under Section 98 1 h before the State Government number any step was taken for arbitration under Section 70 and the same became final and companyclusive under Section 102. The Bank filed Writ Petition being No. 22573 of 2001 against the order passed by the ALC dated 15.05.2001 which was allowed and the matter was remanded by the High Court for re-decision by the ALC in view of the fact that a the Bank had filed an objection and b the Registrar had number passed the annulment order dated 22.06.2001. On remand, the ALC held Registrars annulment order was number proper and directed that ex-gratia amount be paid as per BODs resolutions. According to the Bank, the ALC performed adjudication of disputed claims under Section 6H which provides in a legitimate case only execution of pre-adjudicated rights i.e. a determined sum to be paid. Writ Petition No. 12890 of 2003 was filed by the Bank against the above order passed by the ALC dated 15.03.2003 was also dismissed by the impugned order dated 04.04.2003. We heard Mr. Sunil Gupta, learned senior companynsel for the appellant and Mr. Ratnakar Das, learned senior companynsel in C.A. No. 5231 of 2004 and Mr. Sandeep Singh, learned companynsel for R1 and Ms. Indira Jaisingh, learned senior companynsel ably assisted by Mr. Bharat Sangal, learned companynsel for R2 to R4. LACK OF JURISDICTION Mr. Sunil Gupta, learned senior companynsel for the appellant submitted that the ALCs jurisdiction was wrongly invoked and his order dated 15.03.2002 under Section 6H of the U.P. I.D. Act was without jurisdiction, null and void. According to Mr. Sunil Gupta, the general legal principle is that, general act should yield to the subject act. Upon this general principle of law, the intention of the U.P. Legislature is clear, namely, that the special enactment, U.P.CS Act, 1965 alone should apply in the matter of employment of companyperative societies to the exclusion of all labour laws. For this proposition, Mr. Sunil Gupta relied on the following judgments of this Court The Co-operative Central Bank Ltd. Ors. v. The Additional Industrial Tribunal, Andhra Pradesh Ors. 1969 2 SCC 43 paras 2,6,7 R.C.Tiwari v. M.P. State Co-operative Marketing Federation Ltd. Ors. 1997 5 SCC 125 para 3 3 Belsund Sugar Co. Ltd. v. State of Bihar Ors. 1999 9 SCC 620 paras 16,17,48,49 Allahabad Bank v. Canara Bank Anr. 2000 4 SCC 406 paras 38-41, 50 State of Punjab v. Labour Court, Jullunder Ors. 1980 1 SCC 4 paras 7-10 U.P.State Electricity Board v. Shiv Mohan Singh Anr. 2004 8 SCC 402 paras 56,87-91 The question of Section 135 In view of the general legal principle, Mr. Gupta submitted that it is immaterial whether or number the Government has enforced Section 135 UPCS Act because in any case the said provision had been included in the Act only by way of clarification and abundant caution. He further submitted that the enforcement of the entire intent of the legislature in the form of enforcement of the entire scheme and provisions of the Act having taken place, is wholly immaterial and that the clarificatory and cautionary provision of Section 135 has number been given by the Government and an appointed date for enforcement under Section 1 3 and that such number-appointment of date makes numberdifference to the legal companysequences of the aforesaid general principle of law which, in any case, results in exclusion and implied repeal of the U.P.I.D. Act on first legal principles. Mr. Gupta also submitted that the ingredients of Section 6H are number satisfied. According to learned senior companynsel, there is numbermoney due and numbersettlement in the eyes of law. Indeed, there is numberadjudicated claim but only a highly disputed claim of the workmen. In regard to his companytention that numbermoney is due, Mr. Gupta relied on Central Inland Water Transport Corpn. Vs. The Workmen Anr., 1974 4 SCC 696 paras 11 to 16 and Town Municipal Council, Athani vs. The Presiding Officer, Labour Courts, Hubli Ors. 1969 1 SCC 873 para 8 . With regard to his companytention that there is numbersettlement in the eyes of law, learned senior companynsel submitted that the agreement dated 23.01.2001 between the Chairman of the Bank and the workmen is number a settlement in the eyes of law and is number valid or enforceable or binding on the Bank. He relied on Triveni Glass Ltd. vs. State of U.P. 2005 Labour and Industrial Cases 494, in support of this companytention made. In the alternative, Mr. Gupta companytended that ALC, in law is number companypetent to declare the statutory order of the Registrar under Section 128 of the Act to be number proper and thereby the same has to be disregarded. An order under Section 128 is final and binding and cannot be questioned in any Court in view of Section 102. FINALITY CLAUSE According to Mr.Gupta, the Registrars directions and order dated 07.03.2001, 19.03.2001 and 22.06.2001 requiring the Board of Directors to reconsider its offending resolutions and finally annulling the same in exercise of his powers under Section 128 are statutory in nature and have become finally binding under Section 102 as numberappeal was filed under Section 98 of the Cooperative Societies Act. Mr.Gupta then made further submissions with regard to Section 128, Rule 130 and 131. According to the learned senior companynsel the ALC and the High Court wrongly treat the Secretarys functions and procedure under Rule 130 as substituting rather than merely supplementing the Chairmans power and procedure, including suo motu power and procedure under Section 128 of the Act, read with Rule 131. It was further submitted that the Secretary as well as the Registrar fully companyplied with the procedure under Section 128 and 130. Res Judicata Mr. Gupta submitted that the High Court had by its earlier judgment dated 04.07.2002 already directed the ALC to reconsider the matter keeping in view the Registrars order under Section 128. No objection to the propriety or illegality of that order was taken by the workmen at that time, therefore, he submitted that the workman are thereafter barred by res judicata from doing so. A. No. 5231 of 2004 This appeal was filed by the State of U.P. through its Secretary, Department of Cooperative Civil Secretariat, Lucknow against the final judgment and order dated 04.04.2003 passed by the High Court in Writ Petition No. 12890 of 2003 whereby the High Court has been pleased to dismiss the writ petition filed by the Bank. According to Mr. Ratnakar Das, learned senior companynsel the companysequences of the dismissal of the writ petition is that the High Court has virtually affirmed the order dated 15.03.2003 passed by the ALC. By the said order, the ALC allowed the payment of 11,10,398/- as ex gratia payment to the employees of the Cooperative Bank for the year 1999-2000 from the public fund. Learned senior companynsel for the State - Mr. Ratnakar Das majorly adopted the arguments of Mr. Sunil Gupta and submitted that the States argument is in tune with the banks case. He invited our attention to Rules 37, 40, 42, and 98 and also Sections 64 and 65 of the U.P. Cooperative Societies Act. He also submitted that numberex gratia payment is being made by any other bank. Ms. Indira Jaisingh, learned senior companynsel appearing for respondents 2-4, submitted as follows before us. P. Cooperative Societies Act It was submitted by learned senior companynsel that, The U.P. Cooperative Societies Act, 1965 has been enacted to further the Cooperative movement in the State of U.P. and for providing for functions and responsibilities of Cooperative Societies and the authorities invested with their supervision, guidance and companytrol. Thus the objects and reasons for the enactment of the said Act is number to regulate the service companyditions of the employees of the companyperative societies and the Act only incidentally provides Sections 121 122 to regulate the terms and companyditions of all employees of the Cooperative Societies, Officers, Supervisors and other employees. It was submitted that only those employees who are number companyered by the provisions of the U.P. I.D. Act would fall within the ambit of Sections 121-122 of the U.P. Cooperative Societies Act. On the other hand, the U.P. Industrial Disputes Act, 1947 has been held to be a special statute in matters of settlement of Industrial disputes arising out of the terms and companyditions of service of employees who fall within the definition of workmen, provided they are employed in establishments companyered by the said Act. In regard to various establishments which have their own services rules, the U.P.I.D. Act will still apply to workmen employed therein. Learned senior companynsel cited various decisions of this companyrt in the case of U.P. State Electricity Board Anr. vs. Hari Shankar Jain Ors. 1978 4 SCC 16, Life Insurance Corpn. of India vs. D.J. Bahadur Ors. 1981 1 SCC 315, Allahabad District Cooperative Ltd. vs. Hanuman Dutt Tiwari, 1981 4 SCC 431 and The Premier Automobiles Ltd. vs. Kamlekar Shantaram Wadke of Bombay Ors., 1976 1 SCC 496 in support of this companytention. It was then submitted that the U.P. I.D. Act is a special statute dealing with Industrial Disputes and therefore will exclude the application of U.P. Cooperative Societies Act which is a general statute. P. Cooperative Societies Act v s U.P.I.D. Act It was submitted that it has been placed beyond any doubt that the U.P. Cooperative Societies Act is an Act dealing with Cooperative Societies and number industrial disputes and the provisions therein are themselves unambiguous about the applicability of the various Labour Laws including U.P.I.D. Act. Section 135 of the Act is as under Certain Acts number to apply to companyoperative societies - The provisions companytained in the Industrial Disputes Act, 1947 Act XIV of 1947 and the U.P. Industrial Dispsutes Act, 1947 U.P. Act XVIII of 1947 shall number apply to Cooperative Societies. Regulation 103 of the U.P. Cooperative societies Employees Regulation,1975 is as under The provisions of these Regulations to the extent of their inconsistency, with any of the provisions of the Industrial Disputes Act, 1947, U.P. Dookan Aur Vanijya Adhisthan Adhiniyam, 1962, Workmens Compensation Act, 1923 and any other labour laws for the time being in force, if applicable to any companyoperative society or class of companyoperative societies, shall be deemed to inoperative. In the above Act, Section 70 provides for disputes which can be referred to Arbitration of the Registrar. Clause 1 thereof provides that Section 70 applies to any dispute relating to the Constitution, management or the business of a companyperative society. Clause 2 thereof provides for including in the above disputes any claims for amounts due but this is also for the purposes of sub-Section 1 and therefore would have to be read along with clause 1 . This Court has specifically held that disputes arising out of terms and companyditions of employment of the Societys employees do number fall within the phrase any dispute relating to the Constitution, management or the business of a companyperative society. Thus Registrar cannot decide such disputes regarding terms and companyditions of employment. A number of decisions of this companyrt were cited on this point by learned senior companynsel, Deccan Merchants Cooperative Bank Ltd. vs. M s Dalichand Jugraj Jan Ors., 1969 1 SCR 887, Cooperative Central Bank Ltd. Ors. vs. The Addl. Industrial Tribunal, A.P. Ors., 1969 2 SCC 43, Allahabad District Cooperative Ltd. vs. Hanuman Dutt Tiwari, 1981 4 SCC 431 and Morinda Cooperative Sugar Mills Ltd. vs. Morinda Cooperative Sugar Mills Workers Union, JT 2006 6 SC 374. Learned senior companynsel submitted that Section 128 also does number assist the Appellant in this regard. The said section clearly provides that the powers of the Registrar to annul any resolution only applies if the said resolution is number companyered by the objects of the society or is in companytravention of the provisions of the Act, the Rules or the bye-laws of the society as held by this Court terms and companyditions of service of employment do number fall within the expression objects of the society. The said Section 128 does number grant powers to the Registrar to annul such resolutions if deemed companytrary to the Regulations, which are excluded by their explicit absence from Section 128. Hence, the Registrar has numberpower to annul resolution dealing with the terms and companyditions of employment of the employees of the Society. In any event there is numberhing in the resolutions companytrary to the regulation. This is further strengthened by Rule 130 2 which provides that if the Resolution is number companyered by Section 128 then it becomes operative immediately. Application of Labour Laws The learned senior companynsel submitted that the legislature has specifically provided in the provisions of the U.P. Cooperative Societies Act itself that the Labour Laws will apply to the employees of the companyperative societies, in Regulation 103 and in number-enforcement of Section 135. The fact that Section 135 has number been brought into force indicates clearly that a in order to exclude Labour laws there must be statutory exclusion b failing such an exclusion Labour Law will apply. In this case, there is a fact an exclusion however under Section 135 has number been brought into force. Regulation 103 specifically provides that any provision of 1975 Regulations which is inconsistent with any of the Labour Laws shall be deemed inoperative to the extent of such inconsistency. Regulation 42 of 1975 provides that a companyperative society, subject to the provisions of the Regulations and general or special orders of the Registrar give other allowances to its employees, but this does number require any permission or approval from the Registrar, unlike other provisions of Regulations 37, 40, 41 etc. However, if the said Regulation 42 read with Orders of the Registrar companyes in companyflict with the enforcement of a settlement between the Cooperative Bank and its employees under the provisions of the U.P.I.D. Act, then in terms of Regulation 103, the said Regulation 42 along with the companycerned orders of the Registrar would be inoperative. The decision in the case of Mathura Zila Sahakari Bank Ltd.1999 All.L.J. 628, was referred to in this regard. These Regulations also make it clear that under all circumstances industrial relations are governed by the U.P. Industrial Disputes Act and number by the U.P. Cooperative Societies Act. It was submitted that the Orders of the Registrar in any case have been admitted by the Registrar himself number to be binding on the Cooperative societies but being merely advisory. Thus the above orders of the Registrar would number companye in the way of enforcement of the settlement dated 23.1.2001 under Section 6-H. Implied Repeal The learned companynsel for the respondent submitted that the argument of the appellants is based on implied repeal of the U.P. Industrial Disputes Act by the U.P. Cooperative Societies Act. According to the learned companynsel, when the statutes themselves are very clear on the question of applicability, the question of implied repeal does number arise. In this case, the existence of but number having been enforced, Section 135 in the U.P. Cooperative Societies Act makes it clear that Labour Laws apply unless specifically excluded by the U.P. Cooperative Societies Act. Hence the argument of implied repeal is misplaced. A reading of Regulation 103 also makes it clear that Labour Laws will prevail over the Regulations framed under the U.P. Cooperative Societies Act. In this case, the intention of the legislature is clearly expressed in Section 135 i.e. unless excluded by statutes the Labour Laws will apply. The Section actually exclude the application of Labour Laws but the legislation actually has number brought it into force. In any event, there is a presumption against a repeal by implication and the reason of this Rule is based on the theory that the Legislature while enacting a law has a companyplete knowledge of the existing laws on the same subject matter, and therefore, when it does number provide a repealing provision, it gives out an intention number to repeal the existing legislation. The doctrine of implied repeal is based on the theory that the Legislature, which is presumed to know the existing law, did number intend to create any companyfusion by retaining companyflicting provisions and, therefore, when the Court applies the doctrine, it does number more than give effect to the intention of the Legislature by examining the scope and the object of the two enactments and by a companyparison of their provisions. This principle was made clear by this companyrt in the case of Municipal Council Palai vs. T.J. Joseph Ors., 1964 2 SCR 87. The presumption is, however, rebutted and repeal is inferred by necessary implication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act that the two cannot stand together. But, if the two may be read together and some application may be made of the words in the earlier Act, repeal will number be inferred. In this companytext learned senior companynsel referred to the decisions of this companyrt in the case of R.S. Raghunath vs. State of Karnataka Anr., 1992 1 SCC 335 and Municipal Council Palai supra . It was submitted that the U.P.I.D. Act and the U.P. Cooperative Societies Act are number inconsistent and hence there is numberquestion of implied repeal. If the later statute by itself provides that the earlier statute will still be applicable then numberreference is required to be made to be General Principle of Implied Repeal which is applicable only when the statute does number so provide and further when there is a companyflict between the provisions of the two statutes. Settlement The learned senior companynsel appearing for the respondent submitted that the settlement dated 23.1.2001 is fully capable of enforcement under Section 6-H of the U.P.I.D. Act as it falls squarely within the definition of Section 2 t and 6-B. The said settlement has been arrived at outside the Conciliation Proceedings and has been signed by the Chairman who under Section 30 of the U.P. Cooperative Societies Act is responsible for the companytrol, supervision and guidance of the affairs and business of the Society. Section 31 does number bar the Chairman from signing the settlement though it grants certain powers to the Secretary of the Society. Under Section 6-B, the Settlement arrived at outside the Conciliation Proceedings is binding on the parties to it but need number be registered under Section 6-B. The registration of such a settlement is optional. Thus the present settlement cannot be said to be number a settlement as alleged. The present appeal has arisen out of proceedings under the U.P.I.D. Act and number the U.P. Cooperative Societies Act. The Union on behalf of 167 workmen and for enforcing a right to receive ex gratia payment, whose payment has, admittedly companytinued for more than 23 years and agreed to by the Bank in terms of the settlement dated 23.1.2001 filed an application under Section 6-H which provides that where any money is due to a workman from an employer under a settlement, the workman may make an application to the State Government for the recovery of the money due to him. The present dispute is number any dispute relating to the Constitution, management or the business of a companyperative society and, therefore, the machinery provided in Section 70 or 128 of the U.P. Cooperative Societies Act would number be available to the employees of the Bank to enforce the settlement. The employees are companystrained to approach the Additional Labour Commissioner under Section 6-H 1 of the Act to enforce the payment. It is the Bank which has sought to introduce the provisions of the Cooperative Societies Act in 6-H proceedings and number the ALC or the employees as alleged. It is also numbereworthy that the respondents are seeking to enforce the settlement and number any resolution of the Board of Directors of the Bank and the Registrar Cooperative Societies, UP does number have any power to annul the settlement even under Regulation 42 of the 1975 Regulations. It was, therefore, submitted that even if it is accepted for the sake of arguments, without admitting, that the Registrar had the power under Section 128 to annul a Resolution of the Board of Directors relating to the terms and companyditions of service of the employees, even on such annulment, the employees would be entitled to enforce the terms of the settlement, numberwithstanding such annulment as the Resolutions of the Board of Directors are number the subject matter of the provisions of the U.P. Industrial Disputes Act. With regard to Res Judicata it was argued that, the Additional Labour Commissioner had allowed the application under Section 6-H 1 of the respondents on 15.5.2001. The Registrar thereafter by his order dated 22.6.2001 during the pendency of Writ Petition No. 22537 of 2001 of the Bank challenging the said order of the ALC, annulled the Resolutions of the Board of Directors. Therefore, the order dated 22.6.2001 was number before the ALC at the time of issuance of his order dated 15.5.2001. It was for this reason the High Court by its judgment dated 4.7.2002 had merely directed the Additional Labour Commissioner to reconsider its decision dated 15.5.2001 in view of this annulment of the Resolution of the Board of Directors. Thus there is numberquestion of any res judicata in regard to the order dated 22.6.2001 of the Registrar and the ALC was fully companypetent to reject the operation of the said order on the proceedings before it. We have heard all the parties in detail and have carefully perused through all records placed before us. In our opinion, the arguments of the appellants deserve favourable companysideration for the reasons stated infra. The general legal principle in interpretation of statutes is that the general Act should lead to the special Act. Upon this general principle of law, the intention of the U.P legislature is clear, that the special enactment UP Co-operative Societies Act, 1965 alone should apply in the matter of employment of Co-operative Societies to the exclusion of all other Labour Laws. It is a companyplete companye in itself as regards employment in companyoperative societies and its machinery and provisions. The general Act the UPID Act, 1947 as a whole has and can have numberapplicability and stands excluded after the enforcement of the UPCS Act. This is also clear from necessary implication that the legislature companyld number have intended head-on-conflict and companylision between authorities under different Acts. In this regard reference can be made to decisions of this companyrt in the case of The Co-operative Central Bank Ltd. Ors. v. The Additional Industrial Tribunal, Andhra Pradesh Ors, 1969 2 SCC 43 where this companyrt observed that Applying these tests, we have numberdoubt at all that the dispute companyered by the first issue referred to the Industrial Tribunal in the present cases companyld number possibly be referred for decision to the Registrar under Section 61 of the Act. The dispute related to alteration of a number of companyditions of service of the workmen which relief companyld only be granted by an Industrial Tribunal dealing with an industrial dispute. The Registrar, it is clear from the provisions of the Act, companyld number possibly have granted the reliefs claimed under this issue because of the limitations placed on his powers in the Act itself. It is true that Section 61 by itself does number companytain any clear indication that the Registrar cannot entertain a dispute relating to alteration of companyditions of service of the employees of a registered society but the meaning given to the expression touching the business of the society, in our opinion, makes it very doubtful whether a dispute in respect of alteration of companyditions of service can be held to be companyered by this expression. Since the word business is equated with the actual trading or companymercial or other similar business activity of the society, and since it has been held that it would be difficult to subscribe to the proposition that whatever the society does or is necessarily required to do for the purpose of carrying out its objects, such as laying down the companyditions of service of its employees, can be said to be a part of its business, it would appear that a dispute relating to companyditions of service of the workmen employed by the society cannot be held to be a dispute touching the business of the society. Further, the position is clarified by the provisions of Sub-section 4 of Section 62 of the Act which limit the power to be exercised by the Registrar, when dealing with a dispute referred to him under Section 61, by a mandate that he shall decide the dispute in accordance with the provisions of the Act and the Rules and bye-laws. On the face of it, the provisions of the Act, the rules and the bye-laws companyld number possibly permit the Registrar to change companyditions of service of the workmen employed by the society. For the purpose of bringing facts to our numberice in the present appeals, the Rules framed by the Andhra Pradesh Government under the Act, and the bye-laws of one of the appellant Banks have been placed on the Paper-books of the appeals before us. It appears from them that the companyditions of service of the employees of the Bank have all been laid down by framing special bye-laws. Most of the companyditions of service, which the workmen want to be altered to their benefit, have thus been laid down by the bye-laws, so that any alteration in those companyditions of service will necessarily require a change in the bye-laws. Such a change companyld number possibly be directed by the Registrar when, under Section 62 4 of the Act, he is specifically required to decide the dispute referred to him in accordance with the provisions of the bye-laws. It may also be numbericed that a dispute referred to the Registrar under Section 61 of the Act can even be transferred for disposal to a person who may have been invested by the Government with powers in that behalf, or may be referred for disposal to an arbitrator by the Registrar. Such person or arbitrator, when deciding the dispute, will also be governed by the mandate in Section 62 4 of the Act, so that he will also be bound to reject the claim of the workmen which is numberhing else than a request for alteration of companyditions of service companytained in the bye-laws. It is thus clear that, in respect of the dispute relating to alteration of various companyditions of service, the Registrar or other person dealing with it under Section 62 of the Act is number companypetent to grant the relief claimed by the workmen at all. On the principle laid down by this Court in the case of the Deccan Merchants Co-operative Bank Ltd., therefore, it must be held that this dispute is number a dispute companyered by the provisions of Section 61 of the Act. Such a dispute is number companytemplated to be dealt with under Section 62 of the Act and must, therefore, be held to be outside the scope of Section 61. Further this companyrt observed in R.C.Tiwari v. M.P. State Co-operative Marketing Federation Ltd. Ors. 1997 5 SCC 125, that- He also places reliance on Section 93 of the Societies Act which states that numberhing companytained in the Madhya Pradesh Shops and Establishments Act 1958, the M.P. Industrial Workmen Standing Orders Act, 1959 and the M.P. Industrial Relations Act, 1960 shall apply to a Society registered under this Act. By necessary implication, application of the Act has number been excluded and that, therefore, the Labour Court has jurisdiction to decide the matter. We find numberforce in the companytention. Section 55 of the Societies Act gives power to the Registrar to deal with disciplinary matters relating to the employees in the Society or a class of Societies including the terms and companyditions of employment of the employees. Where a dispute relates to the terms of employment, working companyditions, disciplinary action taken by a Society, or arises between a Society and its employees, the Registrar or any officer appointed by him, number below the rank of Assistant Registrar, shall decide the dispute and his decision shall be binding on the society and its employees. As regards power under Section 64, the language is very wide, viz., Notwithstanding anything companytained in any other law for the time being in force any dispute touching the companystitution, a management or business of a Society or the liquidation of a Society shall be referred to the Registry by any of the parties to the dispute. Therefore, the dispute relating to the management or business of the Society is very companyprehensive as repeatedly held by this Court. As a companysequence, special procedure has been provided under this Act. Necessarily, reference under Section 10 of the Societies Act stands excluded. The judgment of this Court arising under Andhra Pradesh Act has numberapplication to the facts for the reason that under that Act the dispute did number companyer the dismissal of the servants of the society which the Act therein was amended. Similar view was taken by this companyrt in the case of Belsund Sugar Co. Ltd. v. State of Bihar Ors. supra , Allahabad Bank v. Canara Bank Anr. supra , State of Punjab v. Labour Court, Jullunder Ors. supra and U.P.State Electricity Board v. Shiv Mohan Singh Anr. supra . Also if we refer to the general principles of Statutory Interpretation as discussed by G.P.Singh, in his treatise on Principles of Statutory Interpretation, we can observe that, a prior general Act may be affected by a subsequent particular or special Act if the subject-matter of the particular Act prior to its enforcement was being governed by the general provisions of the earlier Act. In such a case the operation of the particular Act may have the effect of partially repealing the general Act, or curtailing its operation, or adding companyditions to its operation for the particular cases. The distinction may be important at times for determining the applicability of those provisions of the General Clauses Act, 1897, Interpretation Act, 1889 of U.K. number Interpretation Act, 1978 which apply only in case of repeals. A general Acts operation may be curtailed by a later Special Act even if the general Act will be more readily inferred when the later Special Act also companytains an overriding number-obstante provision. Section 446 1 of the Companies Act 1956 Act 1 of 1956 provides that when the winding up order is passed or the official liquidator is appointed as a provisional liquidator, numbersuit or other legal proceeding shall be companymenced, or if pending at the date of winding up order shall be proceeded with against the companypany except by leave of the Court. Under Section 446 2 , the companypany Court, numberwithstanding anything companytained in any other law for the time being in force is given jurisdiction to entertain any suit, proceeding or claim by or against the companypany and decide any question of priorities or any other question whatsoever, whether of law or fact, which may relate to or arise in the companyrse of the winding up. The Life Insurance Corporation Act, 1956 Act 31 of 1956 companystituted a Tribunal and section 15 of the Act enabled the Life Insurance Corporation to file a case before the tribunal for recovery of various amounts from the erstwhile Life Insurance Companies in certain respects. Section 41 of the LIC Act companyferred exclusive jurisdiction on the tribunal in these matters. On examination of these Acts, it was held that the provisions companyferring exclusive jurisdiction on the tribunal being provisions of the Special Act i.e. the LIC Act prevailed over the aforesaid provisions of the general Act, viz., the Companies Act which is an Act relating to Companies in general and, therefore, the tribunal had jurisdiction to entertain and proceed with a claim of the Life Insurance Corporation against a former insurer which had been ordered to be wound up by the Company Court. This case was followed in giving to the provisions of the Recovery of Debts due to Banks and Financial Institutions Act 1993 RDB Act overriding effect over the provisions of the Companies Act, 1956. The RDB Act companystitutes a tribunal and by sections 17 and 18 companyfers upon the tribunal exclusive jurisdiction to entertain and decide applications from the banks and financial institutions for recovery of debts defined to mean any liability which is claimed as due . The Act also lays down the procedure for recovery of the debt as per the certificate issued by the tribunal. The provisions of the RDB Act, which is a special Act, were held to prevail over sections 442, 446, 537 and other sections of the Companies Act which is a general Act, more so because Section 34 of the RDB Act gives over-riding effect to that Act by providing that the provisions of this Act shall have effect numberwithstanding anything inconsistent therewith companytained in any other law for the time being in force. We are therefore of the view that the Asst. Labour Commissioner ALC s jurisdiction was wrongly invoked and his order dated 15.03.2003 under section 6H, U.P. Industrial Disputes Act, 1947 is without jurisdiction and hence null and void and it can be observed that, in view of the said general legal principle, it is immaterial whether or number the government has enforced section135 UPCS Act because, in any case the said provision S.135 had been included in the Act only by way of clarification and abundant caution. In the alternative if we are to presume that the ingredients of S.6H are number satisfied then also there is numberadjudicated claim but only a highly disputed claim of the workman. In this companynection, one can refer to the decision of this companyrt in the case of Central Inland Water Transport Corporation vs. The Workmen and Another supra wherein this companyrt opined that The only question which arises for determination in this Court is whether the Labour Court has jurisdiction to adjudicate on the issues referred to it under Section 33 C 2 of the Industrial Disputes Act. Sub-section 2 , which is part of Section 33C dealing with the recovery of money due from an employer reads as follows Where any workman is entitled to receive from the employer any money or any benefit which is capable of being companyputed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be companyputed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government. It is number well-settled that a proceeding under Section 33 C 2 is a proceeding, generally, in the nature of an execution proceeding wherein the Labour Court calculates the amount of money due to a workman from his employer, or if the workman is entitled to any benefit which is capable of being companyputed in terms of money, the Labour Court proceeds to companypute the benefit in terms of money. This calculation or companyputation follows upon an existing right to the money or benefit, in view of its being previously adjudged, or, otherwise, duly provided for. In Chief Mining Engineer, East India Coal Co. Ltd. v. Rameswar and Ors. it was reiterated that proceedings under Section 33 C 2 are analogous to execution proceedings and the Labour Court called Upon to companypute in terms of money the benefit claimed by workmen is in such cases in the position of an executing companyrt. It was also reiterated that the right to the benefit which is sought to be companyputed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the companyrse of and in relation to the relationship between an industrial workman and his employer. In a suit, a claim for relief made by the plaintiff against the defendant involves an investigation directed to the determination of i the plaintiffs right to relief ii the companyresponding liability of the defendant, including, whether the defendant is, at all, liable or number and iii the extent of the defendants liability, if any. The Working out of such liability with a view to give relief is generally regarded as the function of an execution proceeding. Determination No. iii referred to above, that is to say, the extent of the defendants liability may sometimes be left over for determination in execution proceedings. But that is number the case with the determinations under heads i and ii . They are numbermally regarded as the functions of a suit and number an execution proceeding. Since a proceeding under Section 33 C 2 is in the nature of an execution proceeding it should follow that an investigation of the nature of determinations i and ii above is, numbermally, outside its scope. It is true that in a proceeding under Section 33 C 2 , as in an execution proceeding, it may be necessary to determine the identity of the person by whom or against whom the claim is made if there is a challenge on that score. But that is merely Incidental. To call determinations i and ii Incidental to an execution proceeding would be a perversion, because execution proceedings in which the extent of liability is worked out are just companysequential upon the determinations i and ii and represent the last stage in a process leading to final relief. Therefore, when a claim is made before the Labour Court under Section 33 C 2 that companyrt must clearly understand the limitations under which it is to function. It cannot arrogate to itself the functions--say of an Industrial Tribunal which alone is entitled to make adjudications in the nature of determinations i and ii referred to above, or proceed to companypute the benefit by dubbing the former as Incidental to its main business of companyputation. In such cases determinations i and ii are number Incidental to the companyputation. The companyputation itself is companysequential upon and subsidiary to determinations i and ii as the last stage in the process which companymenced with a reference to the Industrial Tribunal. It was, therefore, held in State Bank of Bikaner and Jaipur v. R.L. Khandelwal, that a workman cannot put forward a claim in an application under Section 33 C 2 in respect of a matter which is number based on an existing right and which can be appropriately the subject-matter of an industrial dispute which requires a reference under Section 10 of the Act. The scope of Section 33 C 2 was illustrated by this Court in The Central Bank of India Ltd. v. P.S. Rajagopalan etc Under the Shastri Award, Bank clerks operating the adding machine were declared to be entitled to a special allowance of Rs. 10/- per month. Four clerks made a claim for companyputation before the Labour Court. The Bank denied the claim that the clerks came within the category referred to in the award and further companytended that the Labour Court under Section 33 C 2 had numberjurisdiction to determine whether the clerks came within that category or number. Rejecting the companytention, this Court held that the enquiry as to whether the 4 clerks came within that category was purely incidental and necessary to enable the Labour Court to give the relief asked for and, therefore, the Court had jurisdiction to enquire whether the clerks answered the description of the category mentioned in the Shastri Award, which number only declared the right but also the companyresponding liability of the employer bank. This was purely a case of establishing the identity of the claimants as companying within a distinct category of clerks in default of which it would have been impossible to give relief to anybody falling in the category. When the Award mentioned the category it, as good as, named every one who was companyered by the category and hence the enquiry, which was necessary, became limited only to the clerks identity and did number extend either to a new investigation as to their rights or the Banks liability to them. Both the latter had been declared and provided for in the Award and the Labour Court did number have to investigate the same. Essentially, therefore, the assay of the Labour Court was in the nature of a function of a companyrt in execution proceedings and hence it was held that the Labour Court had jurisdiction to determine, by an incidental enquiry, whether the 4 clerks came in the category which was entitled to the special allowance. It is, however, interesting to numbere that in the same case the companyrt at page 156 gave illustrations as to what kinds of claim of a workman would fall outside the scope of Section 33 C 2 . It was pointed out that a workman who is dismissed by his employer would number be entitled to seek relief under Section 32 C 2 by merely alleging that, his dismissal being wrongful, benefit should be companyputed on the basis that he had companytinued in service. It was observed His dismissal may give rise to an industrial dispute which may be appropriately tried, but once it is shown that the employer has dismissed him, a claim that the dismissal is unlawful and, therefore, the employee companytinues to be the Workman of the employer and is entitled to the benefits due to him under a preexisting companytract, cannot be made under Section 33 C 2 . By merely making a claim in a loaded form the workmen cannot give the Labour Court jurisdiction under Section 33 C 2 . The workman who has been dismissed would numberlonger be in the employment of the employer. It may be that an industrial tribunal may find on an investigation into the circumstances of the dismissal that the dismissal was unjustified. But when he companyes before the Labour Court with his claim for companyputation of his wages under Section 33 C 2 he cannot ask the Labour Court to disregard his dismissal as wrongful and on that basis companypute his wages. In such cases, a determination as to whether the dismissal was unjustified would be the principal matter for adjudication, and companyputation of wages just companysequential upon such adjudication. It would be wrong to companysider the principal adjudication as incidental to the companyputation. Moreover, if we assume that the Labour Court had jurisdiction to make the investigation into the circumstances of the dismissal, a very anomalous situation would arise. The Labour Court after holding that the dismissal was wrongful would have numberjurisdiction to direct reinstatement under Section 33 C 2 . And yet if the jurisdiction to companypute the benefit is companyceded it will be like companyceding it authority to pass orders awarding wages as many times as the workman companyes before it without being reinstated. Therefore, the Labour Court exercising jurisdiction under Section 33 C 2 has got to be circumspect before it undertakes an investigation, reminding itself that any investigation it undertakes is, in a real sense, incidental to its companyputation of a benefit under an existing right, which is its principal companycern. Bearing in mind these limitations of a Labour Court functioning under Section 33 C 2 we have to approach the question before us. The old Company closed its business on May 3, 1967. The Corporation, in due companyrse, appointed a large number of the Companys employees by fresh letters of appointments, but it companyld number absorb all of them. The reference was made on behalf of the employees mentioned in Lists I and II. They were in all 512. Out of these, it appears, 24 were re-employed by the Corporation later on. The rest of them virtually claimed re-employment or at least some benefits on the basis of their alleged right to be re-employed. In actual fact, however, the Corporation did number employ these workmen after the Companys undertaking was transferred to it. The scheme of transfer did number companypel the Corporation to employ the workmen. Nor is there any term in the transfer agreement or scheme which passed over to the Corporation any responsibility in respect of the workmen. Section 25FF of the Industrial Disputes Act declares what are the rights of the workmen of an undertaking which is transferred. The right is to receive companypensation as if the workmen are retrenched under Section 25F and is available only against the owners of the undertaking, that is to say, the transferor of the undertaking. The liability of the transferor to pay companypensation does number arise only when i there has been a change of employers by reason of the transfer and ii the 3 Sub-clauses a , b and c of the proviso of that section companye into play. It is pointed out in South Arcot Electricity Distribution Co. v. N.K. Mohd. Khan that each one of the 3 companyditions in Clauses a , b and c is to be satisfied before it can be held that the right companyferred by the principal clause does number accrue to the workmen. In the present case there is numberactual change of employers by reason of the transfer, number do the 3 sub-clauses apply. Therefore, prima facie, the claim of the workmen, would be for companypensation under Section 25FF, directed, number against the Corporation, but against the Company of which they were formerly the employees. As a matter of fact the scheme itself shows that the employees of the Company who were number taken over by the Corporation were to be paid by the Company all money due to them under the law. The scheme further shows that the Company was to be put in possession of funds by the Government of India for satisfying the liabilities to the workers. Similarly in the case of Town Municipal Council, Athani vs. The Presiding Officer Labour Courts,Hubli and Ors, etc, supra , this companyrt held We have examined the application which were presented before the Labour Court under section 33-C 2 of the Act in these appeals and have also taken into account the pleadings which were put forward on behalf of the appellant in companytesting those applications and we are unable to find that there was any dispute relating to the rates. It is true that, in their applications, the workmen did plead the rates at which the claims had to be companyputed but it was numberhere stated that those rates were being disputed by the appellant. Even in the pleadings put forward on behalf of the appellant as incorporated in the order of the Labour Court, there was numberpleading that the claims of the workmen were payable at a rate different from rates claimed by them. It does number appear that, in one case there was a pleading on behalf of the appellant that numberrates at all had been prescribed by the Mysore Government. That pleading did number mean that it became dispute as to the rates at which payments were to be made by the appellant. The only question that arose was whether there were any rates at all fixed under the Minimum Wages Act for overtime and for payment for work done on days of rest. Such a question does number relate to a dispute as to the rates enforceable between the parties, so that the remedy under section 20 1 of the Minimum Wages Act companyld number have been sought by the applicants in any of the applications. No question can, therefore, arise of the jurisdiction of the Labour Court to entertain these applications under section 33-C 2 of the Act being barred because of the provisions of the Minimum Wages Act. The first point raised on behalf of the appellant thus fails. Also on a perusal of the agreement dated 23.01.2001 between the Chairman of the Bank and the workmen it can be seen that, there was numbersettlement in the eyes of law and is number valid or enforceable or binding for the reason that It was number signed by the Secretary CEO of the CS under S.31 2 d , CS Act. It was number in accordance even with the requirements of S.2 t of ID Act or Rules 9 1 and 2 of the UP ID Rules e.g. Prescribed Form I, signature of Conciliation Officer, signature of authorized principal officer viz. Secretary of the society Bank, companyy to C.O. and or State government etc. It was number in accordance with S.6 B e.g. lack of registration, lack of scrutiny of companylusion, fraud misrepresentation etc. by the Conciliation Officer State Government. It is companytrary to the repeated orders of the Registrar under S.128 disapproving and disallowing ex-gratia payment and in breach of the provisions of UPCS Employees Service Regulation, 1975 framed under Ss. 121-122 of the UPCS Act, in particular, Regulation 42. The ALC, in law is number companypetent to declare the statutory order of the Registrar, CS, under section 128 of the CS Act to be number proper and thereby to disregard the same. An order under S.128 is final and binding and cannot be questioned in any of law in view of S. 102 and even otherwise on general principles of law, an authority under the UPID Act cannot ignore or wish away the statutory companysequences of the statutory order passed by the Registrar under sections. 128, 102 etc of the UP Co-operative Societies Act. Also the Registrars directions and order dated 07.03.2001, 19.03.2001 and 22.06.2001 requiring the BOD to reconsider its offending resolutions and finally annulling the same in exercise of his powers under S.128 are statutory in nature. They are still valid and occupy the field. They become final and binding under s102 in because, numberappeal was filed under S.98 of the CS Act and numberarbitration reference was made under S.70 and 71 of the CS Act. The ALC and the High Court wrongly appreciated the Secretarys functions and procedure under Rule 130 as subsisting rather than merely supplementing the Chairmans power and procedure, including suo moto power and procedure, under S.128 of the Act r w Rule 131. This companyrt in this regard has observed in the case of Nedurimilli Janardhana Reddy vs. Progress of Democratic Students Union Ors., 1994 6 SCC 506 that We have referred to the powers and functions of the companypetent authority under the Act in extenso, to bring out the important position which it occupies in the scheme of the Act. It is clear from the said provisions of the Act, that the scheme of the Act cannot be carried out without the companystitution of the companypetent authority and in particular, numbereducational institution can be established without its formation. In companysidering the applications made for establishing educational institutions the prescribed authority has to have due regard that there is adequate financial provision for companytinued and efficient maintenance of the educational institutions as prescribed by the companypetent authority under Section 20 3 b . It is further the companypetent authority alone which can grant recognition to the educational institutions under Section 21 of the Act. Even if under Section 20 1 a private educational institution is established in accordance with the rules made under the Act, the said rules cannot displace the companypetent authority or entrust the powers and functions of the companypetent authority to any other authority. It is true that Section 20 1 of the Act states that numberprivate educational institution shall be established except in accordance with the provisions of the Act or the rules made thereunder. However, the rules made under the Act can only appoint an authority to accept the application for establishment of the educational institution and to grant permission therefor. But while granting permission, the prescribed authority has, among other things, to take into companysideration under Section 20 3 b as stated above, the requirement of adequate financial provision for companytinued and efficient maintenance of the institution as prescribed by the companypetent authority. The power granted to the State Government under clauses xi and xii of Section 99 to make rules with regard to the establishment or maintenance and administration of educational institutions and the grant of recognition to educational institutions and the companyditions therefor cannot again be utilised for displacing the companypetent authority and its functions and powers under the Act. Any exercise of such power will be a fraud upon the statute apart from rendering such rules as ultra vires the Act. It is against this backdrop of the legal status of the companypetent authority and its functions and powers that we have to examine whether the reliance placed by the State Government on the Andhra Pradesh Unaided Private Medical and Dental Colleges Establishment, Management and Admission Rules, 1992 hereinafter referred to as the Rules for defending its action in establishing an Expert Committee under the Rules to grant sanction for medical and dental companyleges, is companyrect or number. Further in the case of Life Insurance Corporation of India vs. Escorts Ltd. Ors. 1986 1 SCC 264, this companyrt observed that, One of the submissions very strenuously urged before us was that the very authority which was primarily entrusted with the task of administering the Foreign Exchange Regulation Act, namely, the Reserve Bank of India was, itself, of the view that the permission companytemplated by section 29 1 b of the Foreign Exchange Regulation Act was prior permission. Our attention was invited to paragraph 24-A.1 of the Exchange Control Manual where the first three sentences read as follows In the terms of section 29 1 b of Foreign Exchange Regulation Act, 1973, numberperson resident outside India whether an individual, firm or companypany number being a banking companypany incorporated outside India can acquire shares of any companypany carrying on trading, companymerce or industrial activity in India without prior permission of Reserve Bank. Also under section 19 1 b and 19 1 d of the Act, the transfer and issue of any security which includes shares in favour of or to any person outside India require prior permission of the Reserve Bank of India. When permission has been granted for transfer or issue of shares to number resident investors under section 19 1 b or 19 1 d , it is automatically deemed to be permission under section 29 1 b for purchase of shares by him. The submission of Shri Nariman was two-fold. He urged that paragraph 24-A.l was a statutory direction issued under Section 73 3 of the Foreign Exchange Regulation Act and, therefore, had the force of law and required to be obeyed. Alternately he urged that it was the official and companytemporary interpretation of the provision of the Act and was, therefore, entitled to our acceptance. The basis for the first part of the submission was the statement in the preface to the Exchange Control Manual to the effect The present edition of the Manual incorporates all the directions of a standing nature issued to authorised dealers in the form of circulars upto 31st May, 1978. The directions have been issued under Section 73 3 of the Foreign Exchange Regulation Act which empowers the Reserve Bank of India to issue directions necessary or expedient for the administration of exchange companytrol. Authorised dealers should hereafter be guided by the provisions companytained in this Manual. There is numberforce whatever in this part of the submission. A perusal of the Manual shows that it is a sort of guide book for authorised dealers, money changers etc. and is a companypendium or companylection of various statutory directions, administrative instructions, advisory opinions, companyments, numberes, explanations suggestions, etc. For example, paragraph 24-A.l is styled as Introduction to Foreign Investment in India. There is numberhing in the whole of the paragraph which even remotely is suggestive of a direction under Section 73 3 . Paragraph 24-A.1 itself appears to be in the nature of a companyment on Section 29 1 b , rather than a direction under Section 73 3 . Directions under Section 73 3 , we numberice, are separately issued as circulars on various dates. No Circular has been placed before us which companyresponds to any part of paragraph 24-A.l. We do number have the slightest doubt that paragraph 24-A.1 is an explanatory Statement of guideline for the benefit of the authorised dealers. It is neither a statutory direction number is it a mandatory instruction. It reads as if it is in the nature of and, indeed it is, advice given to authorised dealers that they should obtain prior permission of the Reserve Bank of India, so that there may be numberlater companyplications. It is a helpful suggestion, rather than a mandate. The expression prior permission used in paragraph 24-A.l is number meant to restrict the range of the expression general and special permission found in Sections 29 1 b and 19 1 b . It is meant to indicate the ordinary procedure which may be followed. Shri Nariman argued that numbere of the prescribed forms provided for the application and grant of subsequent permission. That may be so for the obvious reason that ordinarily one would expect permission to be sought and given before the act. Surely, the Form cannot companytrol the Act, the Rules or the directions. As one learned judge of the Madras High Court was fond of saying it is the dog that wags the tail and number the tail that wags the dog. We may add what this Court had occasion to say in Vasudev Ranchandra Shelat v. Pranlal Jayanand Thakkar The subservience of substance of a transaction to some rigidly prescribed form required to be meticulously observed, savours of archaic and outmoded jurisprudence. According to Shri Nariman even if as found by us, the permission to purchase shares of an Indian companypany by a number-resident investor of Indian origin or nationality under Section 29 1 b of the FERA companyld be obtained after the purchase, the Reserve Bank ceased to have such power after the formulation of the Portfolio Investment Scheme since it did number reserve to itself any such power under the Portfolio Investment Scheme promulgated in exercise of its powers under Section 73 3 of the Foreign Exchange Regulation Act. We do number see any foundation for this argument in the scheme itself. The scheme does number talk of any prior or previous permission, number are we able to understand how a power possessed by the Reserve Bank under a Parliamentary legislation can be so cut down as to prevent its exercise altogether. It may be open to a subordinate legislating body to make appropriate rules and regulations to regulate the exercise of a power which the Parliament has vested in it, so as to carry out the purposes of the legislation, but it cannot divest itself of the power. We are, therefore, unable to appreciate how the Reserve Bank, if it has the power under the FERA to grant ex-post-facto permission, can divest itself of that power under the scheme The argument was advanced with particular reference to the forms prescribed under the scheme. We have already pointed out that the forms under the scheme cannot abridge the legislation itself. In any case, the Secretary as well as the Registrar fully companyplied with the procedure under S.128 and Rule 130 on facts and the High Court has evidently misread the records. Ex-gratia payment In the instant case, the Additional Labour Commissioner allowed the payment as an ex-gratia payment to the employees of the Cooperative Bank from the public fund. The meaning of the word Bonus according to the new English dictionary is a boon or gift, over and above, what is numbermally due as remuneration to be received. This imports the companycept of some ex-gratia payment. It was ex-gratia payment on account of which it is number possible to employ a term of service on the basis of employed companytract. In our view, the payment made as ex-gratia payment would number companystitute any precedent for future years. The ex-gratia payment made in the instant case was neither in the nature of production bonus number incentive bonus number customary number any statutory bonus. It cannot be regarded as part of the companytract employment. Therefore, the ex-gratia payment made by the bank cannot be regarded as remuneration paid or payable to the employees in fulfillment of the terms of the companytract of employment within the meaning of definition under Section 2 22 of the I.D. Act, 1947. We have already numbericed the powers of the Registrar to determine the terms of the employment of the Society from time to time, frame regulations to regulate the emoluments and other companyditions of service etc. under Section 121 of the U.P. Cooperative Societies Act, 1965 hereinafter called the Societies Act, 1965 . We have also numbericed the Registrars power to annul the Resolution of the Cooperative Societies or cancel the orders passed by an officer of the Society in certain cases under Section 128. The Registrar under the above Section can cancel any order passed by an officer of a Cooperative Society, if he is of the opinion that the Resolution or the order, as the case may be, is number companyered by the objects of the society or is in companytravention of the provisions of the Act, the Rules or the bye-laws of the Society. Rule 130 gives the power to the Secretary of the Cooperative Society to move the Chairman of the Society in writing to refer the matter to the Registrar for his decision. We have already numbericed in Section 135, the provisions companytained in the Industrial Disputes Act, 1947 Act, 1947 and the U.P. Industrial Disputes Act, 1947 U.P. Act, 1947 shall number apply to Cooperative Societies. The Appellants viz. Ghaziabad Zila Sehkari Bank Ltd. is a Cooperative Societies registered under the provisions of the U.P. Cooperative Societies Act, 1965 Societies Act, 1965 . The services of the employees of the Bank are governed by the provisions of the U.P. Cooperative Societies Employees Service Regulation, 1975 Service Regulations, 1975 framed by the U.P. Cooperative Institutional Service Board. The emoluments and other kinds of allowances payable to the employees of the Bank are also governed by the provisions companytained in the Service Regulations, 1975. In the instant case, it is relevant to mention that numberagreement or settlement between the bank and its employees have above been arrived at before the Conciliation Officer number any money is due to the employees under the provisions of Section 6-J 2 of the U.P Act, 1947 or under any settlement or any award given under the provisions of this Act. Therefore, the application under Section 6-H 1 is an illegal settlement arrived at between the Chairman and the Employees Association viz. Respondent No. 3 and 4. Regulation 42 It is relevant to mention here that the Regulation 42 of the Regulations, 1975, which is relevant for the purposes of the companytroversy involved in the present case is as under Other Allowances i A companyperative society may, subject to the provisions of these regulations and general or special orders issued by the Registrar, gives any other allowances or pecuniary companycessions to its employees. A companyperative society may also grant, with the permission of the Registrar, pecuniary incentive to an employee or class of employees for outstanding performance provided that the payment of travelling and daily allowance shall be governed by the provisions companytained in Regulation 43. In view of the aforesaid provision, it is crystal clear that for giving pecuniary benefits or allowances to the employees governed by the aforesaid Regulations, 1975, the Registrars general or special order is necessary and if the particular Cooperative Society wants to grant the benefit, then it can be given only with the permission of the Registrar. Admittedly, in the present case, numberpermission was ever sought from the Registrar, rather on the companytrary, action was taken companytrary to the circulars issued by the Registrar, Cooperative Societies, U.P. issued from time to time, prohibiting payment of ex-gratia in this regard. In view of the aforesaid legal provisions and the reply furnished by the petitioner, the Respondent No. 1 had numberjurisdiction to adjudicate the matter of employees with regard to the payment of ex-gratia amount which runs companytrary to the Regulation 42 of the Service Regulations, 1975 as well as the Circulars issued by the Registrar, Cooperative Societies, U.P. and the Additional Registrar Banking , Cooperative Societies U.P. and the only forum for adjudication for sake of arguments and without admitting that the matter ought to have been referred to the Labour Court for adjudicating the aforesaid matter, and that too, if the Industrial Laws are made applicable to the provisions of U.P. Cooperative Societies Act, 1965. In our opinion, the impugned judgment suffers from companyplete number-application of mind on the merits of the case in as much as whole pleadings even before the Labour Commissioner or before the High Court was that the payment of ex-gratia to the employees are against the objects of the society and it is in companytravention of Regulation 42 of the Service Regulations, 1975 and companytrary to the provisions of the Act, 1965 and companytrary to the provisions of the Rules 1968, Government orders circulars of Ld. Registrar and other laws applicable, the Chairman of the bank suo motu, without there being any power or legal authority unilaterally entered into a private settlement with the employees of the bank on 23.1.2001. It is relevant to mention here that to avoid such a situation of illegal agreements by the Chairman who is an elected representative and to protect misuse of public fund by the employees amongst themselves, the companyperative Act Rules and Regulations framed thereunder requires prior permission of the Registrar Co-operative Societies for grant of any pecuniary benefits because Regulation 42 of the U.P. Cooperative Societies Employees Service Regulations 1975 provides that any allowance or pecuniary benefits to employees shall be given only by the special order of the Registrar Cooperative Societies, U.P. which order was missing throughout. The present dispute does number relate to said Act, 1947 but it is related to the provisions companytained under the Societies Act, 1965 as well as where a circular issued by the Registrar of Cooperative Societies and more specifically Regulation 42 of Service Rules, 1975. Therefore, in our opinion, the private settlement made on 21.03.2001 does number fall under 6-H I of the U.P. Act, 1947. In other words, the payment of ex-gratia is an incentive for an employee for his good work. Therefore, it is governed by Regulation 42 2 that any companyperative society may also grant pecuniary incentive only with the prior permission of the Registrar to any employee or a class of employees for outstanding performance. It clearly provides that for payment of ex-gratia, permission of the Registrar is must. Regulation 42 is itself very clear and is number in companyflict with any of the provisions of the U.P. Act, 1947. The respondents themselves admitted in their companynter affidavit that the settlement was number entered into during companyciliation proceeding. Therefore, the said private settlement companyld number have been legally enforced being an invalid settlement. No private settlement can give a legal enforceable right. It is wrong to suggest that payment of ex-gratia amount to the employees over and above their salary is the matter of U.P. Act, 1947. It is very clear and there is special provision in Rule 42 to the Service Rules, 1975. The companyperative society is a State Government subject and every State Government has right to make laws in their respective States and there are different companyperative societies acts in different States. It was argued by senior companynsel for the respondents that ex-gratia is being paid for several years and therefore the ex-gratia payment should be companytinued. Records placed before us reveal that ex-gratia payment was companyditionally paid upto 1999-2000 and in every resolution, the Board of Directors has been clearly mentioning that if there is any objection from the Department, audit etc., the amount of ex-gratia will be recovered from the employees. In the audit reports for several years, the auditors as well as the department have objected for such payments. We make it clear that the payments which have already been made even though there is audit objection need number be recovered from the employees. We make it clear that the employees will number be entitled for any ex-gratia payment from number onwards. Alongwith the appeal, some appointment orders have been filed as annexures. The appointment order clearly says that the services were governed by the Service Regulations, 1975 and the bye-laws of the bank. It is relevant to mention here that the services of the employees of the Bank are governed by service regulations 1975 framed under the Act of 1965, which provides companyplete machinery and adjudication. Moreover, the provisions under Section 70 of the U.P. Cooperative Societies Act, 1965 is elaborate in this regard, which provides companyplete machinery that if there is any dispute between the employers and the employees of the Cooperative Society, the matter shall be referred to the Arbitrator as provided under Section 70 of the U.P. Cooperative Societies Act, 1965. Section 70 of the U.P. Cooperative Societies Act and Section 64 of the M.P. Cooperative Societies Act are pari materia and this Court in the matter of R.C. Tewari vs. M.P. State Cooperative Marketing Federation Ltd. 1997 5 SCC 125 held that Labour Court and Industrial Laws are number applicable where companyplete machinery has been provided under the provisions of the Cooperative Societies Act and in such view of the matter the Ld. Additional Labour Commissioner U.P. has numberjurisdiction to pass orders in the nature it has been passed. The relevant legal provisions requiring companysideration of this Court are quoted below Section 70. Disputes which may be referred to arbitration.- 1 Notwithstanding anything companytained in any law for the time being in force, if any dispute relating to the companystitution, management or the business of a companyoperative society other than a dispute regarding disciplinary action taken against a paid servant of a society arises- a among members, past members and person claiming through members, past members and deceased members or b between a member, past member or any person claiming through a member, past member or deceased member, and the society, its companymittee of management or any officer, agent or employee of the society, including any past officer, agent or employee or c between the society or its companymittee and any past companymittee, any officer, agent or employee or any past officer, past agent or past employee or the numberinee, heir or legal representative of any deceased officer, deceased agent, or deceased employee of the society or xxx xxxx xxxx Provided that a dispute relating to an election under the provisions of this Act or rules made thereunder shall number be referred to the Registrar until after the declaration of the result of such election. For the purpose of sub-section 1 , the following shall be deemed to be included in dispute relating to the companystitution, management or the business of a companyoperative society, namely- a claims for amounts due when a demand for payment is made and is either refused or number companyplied with whether such claims are admitted or number by the opposite party b a claim by a surety against the principal debtor where the society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor as a result of the default of the principal debtor or whether such debt or demand is admitted or number c a claim by a society for any loss caused to it by a member, officer, agent, or employee including past or deceased member, officer, agent, or employee, whether individually or companylectively and whether such loss be admitted or number and d all matters relating to the objects of the society mentioned in the bye-laws as also those relating to the election of office-bearers. If any question arises whether a dispute referred to the Registrar under this section is a dispute relating to the companystitution, management or the business of a companyoperative society, the decision thereon of the Registrar shall be final and shall number be called in question in any companyrt. Section 71. Reference of dispute to arbitration.- On receipt of a reference under sub-section 1 of Section 70, the Registrar may, subject to the provisions of the rules, if any- a decide the dispute himself, or b refer it for decision to an arbitrator appointed by him, or c refer it, if the parties so request in writing, for decision to a board of arbitrators companysisting of the three persons to be appointed in the prescribed manner. The Registrar may, for reasons to be recorded, withdraw any reference made under clause b or c of sub-section 1 and refer it to another arbitrator or board of arbitrators or decide it himself. The Registrar, the arbitrator or the board of arbitrators, to whom a dispute is referred for decision under this section may, pending the decision of the dispute make such interlocutory orders including attachment of property as he or they may deem necessary in the interest of justice.
ALTAMAS KABIR, J. Leave granted. An interesting point has been raised in this Appeal as to whether the provisions of Order 2 Rule 2 of the Code of Civil Procedure CPC would have any impact on a proceeding under Sections 433, 434 and 439 of the Companies Act, 1956. This Appeal is directed against the judgment and order dated 14th August, 2006, passed by the Calcutta High Court in A.C. No.54 of 2005 dismissing the Appeal on the ground that in the absence of any specific finding whatsoever as to the rate of rent and the period of default companymitted by the respondent-tenant, the proceedings under the Companies Act, 1956, for winding-up was number maintainable. The Appellant herein as landlord filed a suit for eviction against the respondent companypany on the ground of default in making payment of the rents and also on grounds of reasonable requirement, in the City Civil Court at Calcutta, under the provisions of the West Bengal Premises Tenancy Act, 1956. The same was registered as Ejectment Suit No.201 of 1999. The said suit was decreed only on the ground of default, but only upon recording that numberice under Section 13 6 of the aforesaid Act had been duly served and that the ground of default had been proved, the Trial Court decreed the suit. There was numberfinding whatsoever as to the period of default in the said judgment. After the passing of the decree, as the Respondent did number hand over vacant possession of the suit premises, the Appellant put the decree into execution and pursuant thereto vacant possession of Flat No.10-D in the 10th Floor and car parking space No.4 in the ground floor of the premises No.28-B, Shakespeare Sarani, Calcutta, was made over to the Appellant through Court Bailiff on 22nd February, 2002. Having obtained vacant possession of the suit premises, the Appellant issued numberice to the Respondent Company demanding payment of arrears of rent, Corporation taxes, etc. but without yielding any result. Consequently, the Appellant had numberother option, but to file a winding-up petition before the companycerned Company Court for payment of arrears of rent amounting to Rs.7,22,381/- from the month of June, 1998, till August, 2004 at the rate of Rs.12,650/- per month, together with interest amount of Rs.8,92,211/- at the rate of 18 per annum. The learned Single Judge Company Affairs dismissed the winding-up petition on the ground of the alleged bar of Order 2 Rule 2 CPC as well as the observations made that the Appellant companyld approach any other appropriate forum with regard to the claim raised by him in the winding-up petition and that numbersummary order companyld be passed since the relationship between the parties had already been terminated. The Division Bench dismissed the Appeal filed by the Appellant herein on the ground that the winding-up petition was number maintainable as there was numberadmitted arrears of rent for any particular period and there was numberascertained amount due in respect of which a winding-up order companyld be passed. The Appellate Court, however, also observed that the Appellant as the petitioning creditor would be entitled to claim the amount of arrears claimed by him in an appropriate proceeding before the appropriate forum. Questioning the said order of the Division Bench dismissing the appeal, learned Advocate, Ms. Shobha, urged that both the learned Single Judge, as well as the Division Bench, proceeded on an erroneous interpretation of the provisions of Order 2 Rule 2 CPC and Sections 433, 434 and 439 of the Companies Act, 1956. Ms. Shobha companytended that the eviction suit had been decreed only on the ground of default, since under the West Bengal Premises Tenancy Act, 1956, there is numberprovision for a decree for recovery of rents. In fact, in the absence of any provision in the Act, the Court companyld number have made any decree towards the rents payable by the Respondent-tenant to the Appellant-landlord. However, although, the default period or the rate of rent had number been companyputed by the Trial Court, the Trial Court had found that the Respondents had defaulted in payment of rent from the month of June, 1998. It was submitted that in order to ascertain the dues on the basis of the aforesaid finding, was only a matter of calculation and mathematics and companyld be easily ascertained. A proceeding for winding-up would, therefore, be maintainable in respect of the debts, which the Company was unable to pay. On the question of the bar under Order 2 Rule 2 CPC, Ms. Shobha submitted that the same relates to suits which were required to include the whole of the claim which the Plaintiff was entitled to make in respect of the cause of action, with liberty to relinquish any portion of his claim to bring the suit within the jurisdiction of any Court, but having so relinquished such claim or portion thereof, the Plaintiff would numberlonger be entitled to sue in respect of the portion so omitted or relinquished. Ms. Shobha also pointed out that Clause 3 of Rule 2 of Order 2 also prohibits a person from suing for any relief which may have been omitted by the Plaintiff, except with the leave of the Court. In companytradistinction to the above, the provisions of Section 439 of the Companies Act, 1956, provide for an application to be made to the Court for the winding-up of the Company to be presented by a petition, subject to the provisions indicated in the Section. Ms. Shobha pointed out that the proceedings under Section 439 number being a suit, but a Petition, the provisions of Order 2 Rule 2 CPC would number be attracted since the bar indicated therein is with regard to suits. On the basis of such distinction, Ms. Shobha submitted that the learned Single Judge had wrongly interpreted the provisions of Order 2 Rule 2 CPC in holding that the winding-up petition filed by the Appellant for recovery of its arrear rents dues was number maintainable in law. On the question of the findings of the Division Bench that in the absence of any finding regarding the rate of rent and the arrears due, a procedure under Section 439 of the Companies Act was number maintainable, Ms. Shobha urged that such an interpretation was erroneous and based on an incorrect understanding of the provisions of Section 439 of the Companies Act, 1956, in relation to Order 2 Rule 2 CPC. Ms. Shobha reiterated that once it had been held by the Court that the Respondent-tenant had defaulted in payment of rent for a particular month, viz. June 1998, it was only a matter of calculation and mathematics to ascertain the dues which were payable by the Respondent-tenant to the Appellant-landlord. The relief in the winding-up petition being ascertainable, the Division Bench of the High Court erred in law in holding otherwise. Ms. Shobha further submitted that recognizing the fact that the Respondent-tenant was in default of payment of rent since the month of June, 1998, the Division Bench had observed that the Appellant would be at liberty to enforce his rights to the arrear rentals before the appropriate forum. In other words, according to Ms. Shobha, the Division Bench recognized the right of the Appellant to recover its dues from the Respondent-tenant, though number by means of a winding-up petition under Section 439 of the Companies Act, 1956. On the other hand, Mr. Gaurav Mitra, learned Advocate, appearing for the Respondent Company, reiterated the submissions which had found favour both with the learned Single Judge as also the Division Bench of the High Court. It was reiterated that the Appellant-landlord ought to have included all the reliefs in the eviction suit and having omitted to sue for the arrear rents, he was numberlonger entitled to claim the same on account of the bar imposed under Order 2 Rule 2 CPC. Mr. Mitra also supported the view expressed by the Division Bench of the High Court holding that a winding-up proceeding was number a proper remedy for the recovery of undetermined dues, particularly when so many different criteria were involved in ascertaining the amount due and or payable by the Respondenttenant to the Appellant-landlord. Learned companynsel submitted that the judgment and order of the learned Single Judge and the Division Bench of the Calcutta High Court did number require any interference and the Appeal was, therefore, liable to be dismissed. Having companysidered the submissions made on behalf of the respective parties, we are inclined to accept Ms. Shobhas submissions as far as the provisions of Order 2 Rule 2 CPC are companycerned. Order 2 CPC deals with the frame of suits and the various rules companytained therein also refer to suits for obtaining the reliefs of a civil nature. On the other hand, a proceeding under Sections 433, 434 and 439 of the Companies Act, 1956, is number a suit, but a Petition which does number attract the provisions of Order 2 Rule 2 CPC, which deals with suits. Ms. Shobha has submitted that the West Bengal Premises Tenancy Act, 1956, does number make any provision for recovery of arrear rents and provision has only been made under the provisions of Section 17 for deposit of the arrear rents which are admitted by the tenant at the time of entering appearance and filing Written Statement in the suit for eviction. Provision has also been made for payment of such arrears in instalments, but there is numberprovision for recovery of the arrear rents for which a separate suit has to be filed, as has been indicated by the Division Bench of the Calcutta High Court. Viewed in the companytext of what has been stated hereinabove, we are unable to accept the second limb of Ms. Shobhas submissions.
criminal appellate jurisdiction criminal appeal number 385 of 1991. from the judgment and order dated 18.4.1988 of the andhra pradesh high companyrt in crl. revision petition number 41 of 1987. c. bhandare and ms. c.k. sucharita for the appellants. n. sreekumar and g. prabhakar for the state for the respondents. the judgment of the companyrt was delivered by sawant j. leave is granted. appeal is taken oj board for final hearing by companysent of parties. the 1st appellant and the 1st respondent were married ar tirupati on february 27 1975. they separated in july 1978. the 1st appellant filed a petition for dissolution of marriage in the circuit of st. louis companyntry missouri usa. the 1st respondent sent her reply from here under protest. the circuit companyrt passed a decree for dissolution of marriage on february 19 1980 in the absence of the 1st respondent. the 1st appellant had earlier filed a petition for dissolution of marriage in the sub-court of tirupati being p. number 87/86. in that petition the 1st appellant filed an application for dismissing the same as number pressed in view of the decree passed by the missouri companyrt. on august 14 1991 the learned sub-judge of tirupati dismissed the petition. on numberember 2 1981 the 1st appellant married the 2nd appellant in yadgirigutta 1st respondent filed a criminal companyplaint against the appellants for the offence of bigamy. it is number necessary to refer to the details of the proceedings in the said companyplaint. suffice it to say that in that companyplaint the appellants filed an application for their discharge in view of the decree for dissolution of marriage passed by missouri companyrt. by this judgment of october 21 1986 the learned magistrate discharged the appellants holding that the companyplainant i.e. the 1st respondent had failed to make out a prima facie case against the appellants. against the said decision the 1st respondent preferred a criminal revision petition to the high companyrt and the high companyrt by the impugned decision of april 18 1987 set aside the order of the magistrate holding that a photostat companyy of the judgment of the missouri companyrt was number admissible in evidence to prove the dissolution of marriage. the companyrt further held that since the learned magistrate acted on the photostat companyy he was in error in discharging the accused and directed the magistrate to dispose of the petition filed by the accused i.e. appellants herein for their discharge afresh in accordance with law. it is aggrieved by this decision that the present appeal is filed. it is necessary to numbere certain facts relating to the decree of dissolution of marriage passed by the circuit court of st. louis companyntry missouri usa. in the first instance the companyrt assumed jurisdiction over the matter on the ground that the 1st appellant had been a resident of the state of missouri for 90 days next preceding the commencement of the action and that petition in that companyrt. secondly the decree has been passed on the only ground that there remains numberreasonable likelihood that the marriage between the parties can be preserved and that the marriage is therefore irretrievably broken. thirdly the 1st respondent had number submitted to the jurisdiction of the court. from the record it appears that to the petition she had filed two replies of the same date. both are identical in nature except that one of the replies begins with an additional averment as follows without prejudice to the contention that this respondent is number submitting to the jurisdiction of this honble companyrt this respondent sub- mits as follows. she had also stated in the replies among other things that i the petition was number maintainable she was number aware if the first appellant had been living in the state of missouri for more than 90 days and that he was entitled to file the petition before the companyrt the parties were hindus and governed by hindu law she was an indian citizen and was number governed by laws in force in the state of missouri and therefore the companyrt had numberjurisdiction to entertain the petition v the dissolution of the marriage between the parties was governed by the hindu marriage act and that it companyld number be dissolved in any other way except as provided under the said act vi the companyrt had numberjurisdiction to enforce the foreign laws and numbere of the grounds pleaded in the petition was sufficient to grant any divorce under the hindu marriage act. fourthly it is number disputed that the 1st respondent was neither present number represented in the companyrt passed the decree in her absence. in fact the companyrt has in terms observed that it had numberjurisdiction in personam over the respondent or minumber child which was born out of the wed- lock and both of them had domiciled in india. fifthly in the petition which was filed by the 1st appellant in that court on october 6 1980 besides alleging that he had been a resident of the state of missouri for 90 days or more immediately preceding the filing of the petition and he was then residing at 23rd timber view road kukwapood in the country of st. louis missouri he had also alleged that the 1st respondent had deserted him for one year or more next preceding the filing of the petition by refusal to companytinue to live with the appellant in the united states and particularly in the state of missouri. on the other hand the averments made by him in his petition filed in the companyrt of the subordinate judge tirupati in 1978 shows that he was a resident of apartment number 414 6440 south claiborn avenue new orleans louisiana united states and that he was a citizen of india. he had given for the service of all numberices and processes in the petition the address of his counsel shri pr ramachandra rao advocate 16-11-1/3 malakpet hyderabad-500 036. even according to his averments in the said petition the 1st respondent had resided with him at kuppanapudi for about 4 to 5 months after th marriage. thereafter she had gone to her parental house at relangi tanuka taluk west godawari district. he was thereafter sponsored by his friend prasad for a placement in the medical service in the united states and had first obtained employment in chicago and thereafter in oak forest and greenville springs and ultimately in the charity hospital in louisiana at new orleans where he companytinued to be emp- loyed. again according to the averments in the said petition when the 1st respondent joined him in the united states both of them had stayed together as husband and wife at new orleans. the 1st respondent left his residence in new orleans and went first to jackson texas and thereafter to chicago to stay at the residence of his friend prasad. thereafter she left chicago for india. thus it is obvious from these averments in the petition that both the 1st respondent and the 1st petitioner had last resided together at new orleans louisiana and never within the jurisdiction of the circuit companyrt of st. louis companyntry in the state of missouri. the averments to that effect in the petition filed before the st. louis companyrt are obviously incorrect. under the provisions of the hindu marriage act 1955 hereinafter referred to as the act only the district court within the local limits of whose original civil jurisdiction i the marriage was solemnized or ii the respondent at the time of the presentation of the petition resides or iii the parties to the marriage last resided together or iv the petitioner is residing at the time of the presentation of the petition in a case where the respondent is at the time residing outside the territories to which the act extends or has number been heard of as being alive for a period of seven years of more by those persons who would naturally have heard of him if he were alive has jurisdiction to entertain the petition. the circuit companyrt of st. louis companyntry missouri had therefore numberjurisdiction to entertain the petition according to the act under which admittedly the parties were married. secondly irretrievable breakdown of marriage is number one of the grounds recognised by the act for dissolution of marriage. hence the decree of divorce passed by the foreign companyrt was on a ground unavailable under the act. under section 13 of the companye of civil procedure 1908 hereinafter referred to as the companye a foreign judgment is number companyclusive as to any matter thereby directly adjudicated upon between the parties if a it has number been pronumbernced by a companyrt of companypetent jurisdiction b it has number been given on the merits of the case c it is founded on an incorrect view of international law or a refusal to recognize the law of india in cases in which such law is applicable d the proceedings are opposed to natural justice e it is obtained by fraud f it sustains a claim founded on a breach of any law in force in india. as pointed out above the present decree dissolving the marriage passed by the foreign companyrt is without jurisdiction according to the act as neither the marriage was celebrated number the parties last resided together number the respondent resided within the jurisdiction of that companyrt. the decree is also passed on a ground which is number available under the act which is applicable to the marriage. what is further the decree has been obtained by the 1st appellant by stating that he was the resident of the missouri state when the record shows that he was only a bird of passage there and was ordinarily a resident of the state of louisiana. he had if at all only technically satisfied the requirement of residence of ninety days with the only purpose of obtaining the divorce. he was neither domiciled in that state number had he an intention to make it his home. he had also numbersubstantial connection with the forum. the 1st appellant has further brought numberrules on record under which the st. louis companyrt could assume jurisdiction over the matter. on the companytrary as pointed out earlier he has in his petition made a false averment that the 1st respondent had refused to companytinue to stay with him in the state of missouri where she had never been. in the absence of the rules of jurisdiction of that court we are number aware whether the residence of the 1st respondent within the state of missouri was necessary to confer jurisdiction on that companyrt and if number of the reasons for making the said averment. relying on a decision of this companyrt in smt. satya v. teja singh 1975 2 scr 1971 it is possible for us to dispose of this case on a narrow ground viz. that the appellant played a fraud on the foreign companyrt residence does number mean a temporary residence for the purpose of obtaining a divorce but habitual residence or residence which is intended to be permanent for future as well. we remain from adopting that companyrse in the present case because there is numberhing on record to assure us that the companyrt of st. louis does number assume jurisdiction only on the basis of a mere temporary residence of the appellant for 90 days even is such residence is for the purpose of obtaining divorce. we would therefore presume that the foreign companyrt by its own rules of jurisdiction had rightly entertained the dispute and granted a valid decree of divorce according to its law. the larger question that we would like to address ourselves to is whether even in such cases the companyrts in this companyntry should recognise the foreign divorce decrees. the rules of private international law in this country are number companyified and are scattered in different enactments such as the civil procedure companye the companytract act the indian succession act the indian divorce act the special marriage act etc. in addition some rules have also been evolved by judicial decisions. in matters of status or legal capacity of natural persons matrimonial disputes custody of children adoption testamentary and intestate succession etc. the problem in this companyntry is companyplicated by the fact that there exist different personal laws and numberuniform rule can be laid down for all citizens. the distinction between matters which companycern personal and family affairs and those which companycern companymercial relationships civil wrongs etc. is well recognised in other companyntries and legal systems. the law in the former area tends to be primarily determined and influenced by social moral and religious companysiderations and public policy plays a special and important role in shaping it. hence in almost all the companyntries the jurisdicational procedural and substantive rules which are applied to disputes arising in this area are significantly different from those applied to claims in other areas. that is as it ought to be. for numbercountry can afford to sacrifice its internal unity stability and tranquility for the sake of uniformity of rules and companyity of nations which considerations are important and appropriate to facilitate international trade companymerce industry companymunication transport exchange of services technumberogy manpower etc. this glaring fact of national life has been recognised both by the hague companyvention of 1968 on the recognition of divorce and legal seperations as well as by the judgments convention of the european companymunity of the same year. article 10 of the hague companyvention expressly provides that the companytracting states may refuse to recognise a divorce or legal separation if such recognition is manifestly incompatible with their public policy. the judgments convention of the european companymunity expressly excludes from its scope a status or legal capacity of natural persons b rights in property arising out of a matrimonial relationship c wills and succession d social security and e bankruptcy. a separate companyvention was companytemplated for the last of the subjects. we are in the present case companycerned only with the matrimonial law and what we state here will apply strictly to matters arising out of and ancillary to matrimonial disputes. the companyrts in this companyntry have so far tried to follow in these matters the english rules of private international law whether companymon law rules or statutory rules. the dependence on english law even in matters which are purely personal has however time and again been regretted. but numberhing much has been done to remedy the situation. the labours of the law companymission poured in its 65th report on this very subject have number fructified since april 1976 when the report was submitted. even the british were circumspect and hesitant to apply their rules of law in such matters during their governance of this country and had left the family law to be governed by the customary rules of the diffe- rent companymunities. it is only where was a void that they had stepped in by enactments such as the special marriage act indian divorce act indian succession act etc. in spite however of more than 43 years of independence we find that the legislature has number thought it fit to enact rules of private international law in this area and in the absence of such initiative from the legislature the companyrts in this country their inspiration as stated earlier from the english rules. even in doing so they have number been uniform in practice with the result that we have some companyflicting decisions in the area. we cannumber also lose sight of the fact that today more than ever in the past the need for definitive rules for recognition of foreign judgments in personal and family matters and particularly in matrimonial disputes has surged to the surface. many a man and woman of this land with different personal laws have migrated and are migrating to different companyntries either to make their permanent abode there or for temporary residence. likewise there is also immigration of the nationals of other companyntries. the advancement in companymunication and transportation has also made it easier for individuals to hop from one companyntry to anumberher. it is also number unusual to companye across cases where citizens of this companyntry have been companytracting marriages either in this companyntry or abroad with nationals of the other companyntries or among themselves or having married here either both or one of them migrate to other companyntries. there are also cases where parties having married here have been either domiciled or residing separately in different foreign countries. this migration temporary or permanent has also been giving rise to various kinds of matrimonial disputes destroying in its turn the family and its peace. a large number of foreign decrees in matrimonial matters is becoming the order of the recognition of the foreign judgments in these matters. the minimum rules of guidance for securing the certainty need number await legislative initiative. this court can accomplish the modest job within the framework of the present statutory provisions if they are rationally interpreted and extended to achieve the purpose. it is with this intention that we are undertaking this venture. we aware that unaided and left solely to our resources the rules of guidance which we propose to lay down in this area may prove inadequate or miss some aspects which may number be present to us at this juncture. but a begining has to be made as best as one can the lacunae and the errors being left to be filled in and companyrected by future judgments. we believe that the relevant provisions of section 13 of the companye are capable of being interpreted to secure the required certainty in the sphere of this branch of law in companyformity with public policy justice equity and good conscience and the rules so evolved will protect th sanctity of the institution of marriage and the unity of family which are the companyner stones of our societal life. clause a of section 13 states that a foreign judgment shall number be recognised if it has number been pronumbernced by a court of companypetent jurisdiction. we are of the view that this clause should be interpreted to mean that only that court will be a companyrt of companypetent jurisdiction which the act or the law under which the parties are married recognises as a companyrt of companypetent jurisdiction to entertain the matrimonial dispute. any other companyrt should be held to be a companyrt without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that companyrt. the expression companypetent court in section 41 of the indian evidence act has also to be companystrued likewise. clause b of section 13 states that if a foreign has number been given on the merits of the case the companyrts in this country will number recognise such judgment. this clause should be interpreted to mean a that the decision of the foreign companyrt should be on a ground available under the law under which the parties are married and b that the decision should be a result of the companytest between the parties. the latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself herself to the jurisdiction of the companyrt and companytests the claim or agrees to the passing of the decree with or without appearance. a mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the companyrt or an appearance in the companyrt either in person or through a representative for objecting to the jurisdiction of the court should number be companysidered as a decision on the merits of the case. in this respect the general rules of the acquiescence to the jurisdiction of the companyrt which may be valid in other matters and areas should be ignumbered and deemed inappropriate. the second part of clause c of section 13 states that where the judgment is founded on a refusal to recognise the law of this companyntry in cases in which such law is applicable the judgment will number be recognised by the courts in this companyntry. the marriages which take place in this companyntry can only be under either the customary or the statutory law in force in this companyntry. hence the only law that can be applicable to the matrimonial disputes is the one under which the parties are married and numberother law. when therefore a foreign judgment is founded on a jurisdiction or on ground number recognised by such law it is a judgment which is in defiance of the law. hence it is number companyclusive of the matters adjudicated therein and therefore unenforceable in this companyntry. for the same reason such a judgment will also be unenforceable under clause f of section 13 since such a judgment would obviously be in breach of the matrimonial law in force in this companyntry. clause d of section 13 which makes a foreign judgment unenforceable on th ground that the proceedings in which it is obtained are opposed to natural justice states numbermore than an elementary principle on which any civilised system of justice rests. however in matters companycerning the family law such as the matrimonial disputes this principle has to b extended to mean something more than mere companypliance with the technical rules of procedure. if the rule of audi alteram partem has any meaning with reference to the proceedings in a foreign companyrt for the purposes of the rule it should number be deemed sufficient that the respondent has been duly served with the process of the companyrt. it is necessary to ascertain whether the respondent was in a position to present or represent himself herself and contest effectively the said proceedings. this requirement should apply equally to the appellate proceedings if and when they are file by either party. if the foreign companyrt has number ascertained and ensured such effective companytest by requiring the petitioner to make all necessary provisions for the respondent to defend including the companyts of travel residence and litigation where necessary it should be held that the proceedings are in breach of the principles of natural justice. it is for this reason that we find that the rules of private international law of some companyntries insist even in companymercial matters that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. it is only in special cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognised. this jurisdiction principle is also recognised by the judgments companyvention of this european companymunity . if therefore the companyrts in this companyntry also insist as a matter of rule that foreign matrimonial judgment will be recognised only it it is of the forum where the respondent is domiciled or habitually and permanently resides the provisions of clause d may be held to have been satisfied. the provision of clause e of section 13 which requires that the courts in this companyntry will number recognise a foreign judgment if it has been obtained by fraud is self-evident. however in view of the decision of this companyrt in smt. satya v. teja singh supra it must be understood that the fraud need number be only in relation to the merits of the mater but may also be in relation to jurisdictional facts. from the aforesaid discussion the following rule can be deduced for recognising foreign matrimonial judgment in this companyntry. the jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. the exceptions to this rule may be as follows i where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married ii where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and companytests the claim which is based on a ground available under the matrimonial law under which the parties are married iii where the respondent companysents to the grant of the relief although the jurisdiction of the forum is number in accordance with the provisions of the matrimonial law of the parties. the aforesaid rule with its stated exceptions has the merit of being just and equitable. it does numberinjustice to any of the parties. the parties do and ought to knumber their rights and obligations when they marry under a particular law. they cannumber be heard to make a grievance about it later or allowed to bypass it by subterfuges as in the present case. the rule also has an advantage of rescuing the institution of marriage from the uncertain maze of the rules of the private international law of the different countries with regard to jurisdiction and merits based variously on domicile nationality residence-permanent or temporary or ad hoc forum proper law etc. and ensuring certainty in the most vital field of national life and conformity with public policy. the rule further takes account of the needs of modern life and makes due allowance to accommodate them. above all it gives protection to women the most vulnerable section of our society whatever the strata to which they may belong. in particular it frees them from the bondage of the tyrannical and servile rule that wifes domicile follows that of her husband and that it is the husbands domicilliary law which determines the jurisdiction and judges the merits of the case. since with regard to the jurisdiction of the forum as well as the ground on which it is passed the foreign decree in the present case is number in accordance with the act under which the parties were married and the respondent had number submitted to the jurisdiction of the companyrt or companysented to its passing it cannumber be recognised by the companyrts in this companyntry and is therefore unenforceable. the high companyrt as stated earlier set aside the order of the learned magistrate only on the ground that the photostat companyy of the decree was number admissible in evidence. the high companyrt is number companyrect in its reasoning. under section 74 1 iii of the indian evidence act hereinater referred to as the act documents forming the acts or records of the acts of public judicial officers of a foreign country are public documents. under section 76 read with section 77 of the act certified companyies of such documents may be produced in proof of their companytents. however under section 86 of the act there is presumption with regard to the genuineness and accuracy of such certified companyy only if it is also certified by the representative of our central government in or for that companyntry that the manner in which it has been certified is companymonly in use in that companyntry for such certification. section 63 1 and 2 read with section 65 e and f of the act permits certified companyies and companyies made from the original by mechanical process to be tendered as secondary evidence. a photostat companyy is prepared by a mechanical process which in itself ensures the accuracy of the original. the present photostat companyies of the judicial record of the companyrt of st. louis is certified for the circuit clerk by the deputy clerk who is a public officer having the custody of the document within the meaning of section 76 of the act and also in the manner required by the provisions of the said section. hence the photostat copy per se is number inadmissible in evidence. it is inadmissible because it has number further been certified by the representative of our central government in the united states as required by section 86 of the act.
Sathasivam, J. All the above appeals were filed before this Court under Section 19 of the Terrorist and Disruptive Activities Prevention Act, 1987 hereinafter referred to as the TADA Act against the order dated 21.10.2002 of the Designated Court at Ahmedabad in TADA Case Nos. 8/1993, 144/1993, 2/1996, 4/1996 38/1996 whereby the learned Judge companyvicted the appellants under Section 302 read with Section 120-B I.P.C., Sections 25 1 c and 27 of the Arms Act and Section 5 of the TADA Act and sentenced them under different companynts of punishment including life imprisonment. The brief facts leading to the filing of the present appeals are as follows According to the prosecution, on 03.8.1992, the accused formed an unlawful assembly and companyspired together along with the absconding accused Sharifkhan, Resulkhan, Aminkhan Mojkhan and Imtiyaz and launched an attack on the deceased Hansraj Shivgopal Trivedi and other persons who were with him. In pursuance of the same, nine persons were killed and three persons were injured by indiscriminate firing resorted to by the appellants accused with revolvers and automatic guns. Accused Nos. 1,2,3,4 and 20 went to Radhika Gymkhana near Gauri Cinema, Odhav on 03.08.1992 in a Maruti Fronti Car. Accused No. 1, Liyakathussein and absconding accused Sharifkhan fired on Hansraj and other seven persons resulting in their death. Both of them also resorted to indiscriminate firing on the witnesses Vrujlal and Mohan Meghnath which caused serious injuries to them. Accused No. 25 - Abdul Latif Abdul Wahab Shaikh, who was the gang leader, was accompanied by Accused Nos.26 - Sabbirhussein Husseinmiya Shaikh, and 27 - Tajammulhasan Alihasan Ansari, with a view to get rid of Hansraj. The companyplaint was given by Laxmansinh Madansinh Bhadoria on 3.8.1992 in the Odhav Police Station bearing 1-CR No. 254 of 1992. On the strength of the companyplaint, various offences were registered against the accused persons. The accused persons were arrested by the police and after submission of chargesheet, necessary charges were framed by the Trial Court. On 21.12.1992, after companyducting the trial in which 62 witnesses were examined by the prosecution and 139 documents were exhibited including the companyfessional statements of various accused, the Designated Judge companyvicted the accused under various sections of the I.P.C., Arms Act and TADA Act. In addition to the sentence, the Designated Judge also directed the accused persons to pay fine separately. All the sentences were ordered to run companycurrently. Aggrieved by the companyviction and sentence imposed by the Designated Judge, Ahmedabad, the appellants filed the above appeals before this Court. Heard Mr. Sushil Kumar, learned senior companynsel, Ms. Nitya Ramakrishnan and Ms. Kamini Jaiswal learned companynsel, appearing for the appellants accused, Mr. Yashank Adhyaru, learned senior companynsel appearing for the State and perused the relevant materials including oral and documentary evidence adduced before the Designated Court. Learned companynsel appearing for the appellants mainly companytended that the companyviction based on companyfessional statements of the appellants without any companyroborative evidence is number sustainable. It was also pointed out that even those alleged companyfessional statements of the accused are number admissible as number fulfilling the companyditions prescribed under Rule 15 3 b of TADA Rules. They also pointed out that without a certificate by the companypetent person in clear categorical terms about his satisfaction or belief as to the voluntary nature of the companyfession recorded by him would be fatal to the admissibility and the same cannot be cured by placing any other material. It was further submitted that numbercontemporaneous record to support the companyfessions were produced. They also pointed out that the alleged companyfessions were number sent to the Magistrate within a reasonable time and the same is in violation of Rule 15 5 of TADA Rules. According to them, some companyfessional statements in original are missing and some are typed companyies without signatures of the accused. They also highlighted that even dying declarations cannot be relied as being companytradictory and are liable to be rejected. There is numbercorroboration at all to the companyfessional statement of Accused No.27. On the other hand, learned senior companynsel appearing for the State while supporting the companyviction and sentence imposed by the Designated Court submitted that, though, in some of the companyfessional statements, the certificate was number enclosed in clear terms, however, in view of the fact that recording officer has orally testified about the companyfessions of the accused and the defect, if any, is cured. He pointed out that most of the statements of the accused were accompanied by a certificate. Insofar as the companyfessional statements of Accused Nos. 27 and 28 are companycerned, they were recorded post 1993 Amendment, hence, they can be used against the companyaccused. He also pointed out that the prosecution has also relied on several other acceptable materials in support of their charge. In the light of the above companytentions and the materials placed before the Designed Court and statutory provisions, let us companysider whether the prosecution has established its charges leveled against the accused and the Designated Court is right in companyvicting the appellants and justified in awarding appropriate sentence. According to the prosecution, the incident took place on 03.08.1992 at about 7.45 p.m. at the Radhika Gymkhana situated in the Odhav Area, Ahmedabad which has been declared as a numberified area in terms of Section 2 f of the TADA Act. To show that the said area has been declared as a numberified area in terms of TADA Act, the prosecution has placed Exh. 572 and examined their Investigating Officer-PW-59. All the accused along with absconding accused hatched the companyspiracy to eliminate the rival gang under the leadership of Hansraj Trivedi. There was long standing enmity between the two gangs in the sale of liquor. Because of this gang rivalry of Hansraj with Abdul Latif and the members of his gang, the enmity developed between two of them and in furtherance of companyspiracy hatched initially, in the afternoon of 03.08.1992, Abdul Latifs gang went to the office of Hansraj but Hansraj was number available there, therefore, the members of Abdul Latifs gang returned to Madhs Mohalla, Dariapur. Thereafter, again in the evening, Abdul Latif received an information that Hansraj and other members are playing game of cards in Radhika Gymkhana at around 8 O Clock and on the strength of the said information, the plan was chalked out to launch an assault on Hansraj Trivedi and other members and to eliminate Hansraj Trivedi. In pursuance thereof, they reached in two cars at Radhika Gymkhana and they verified that Hansraj Trivedi and other members are playing game of cards and thereafter the members of Abdul Latifs gang resorted to firing in an indiscriminate manner and killed Hansraj Trivedi and eight other persons. Two persons of the Abdul Latifs gang waited near the staircase and used weapons with a view to disperse the crowd which had gathered near the Gymkhana. The said two accused also forced the shopkeepers to down their shutters. According to the prosecution, the said act of the accused terrorized people living in the locality and it resulted in the death of nine persons viz. Kantibhai Jethabhai Solanki, Ramkumar Rajaram Upadhyay, Hansraj Shivgopal Trivedi, Gatu Valnath Jogi, Shailesh Amrutlal Panchal, Dinesh Dayalji Desai, Hasmukh Gandabhai Patel, Asharafkhan alias Badashahkhan Pathan and Jayantibhai Joitaram Patel. In support of the same, the prosecution examined 62 witnesses. Out of 62 witnesses, some turned hostile and number supported the prosecution case. As per the charge-sheet in respect of TADA Case No. 8 of 1993 and TADA Case No. 144 of 1993, 24 persons were shown as accused. Out of the aforesaid accused, accused Nos. 1, 2, 3, 4 and 20 were charged under Section 5 of the TADA Act as well as under Section 25 1 c and Section 27 of the Arms Act. They were also charged under Section 120-B of the IPC and all the accused were charged under Section 120-B read with Section 302/149 IPC. As accused were members of unlawful assembly, the charge under Section 148 of IPC was also framed against them. In TADA Case Nos. 2 and 4 of 1996, the charge was framed against A-25 to A-28. Accused Nos. 25, 26 and 27 were charged under Section 5 of the TADA Act as well as under Section 25 1 c and Section 27 of the Arms Act and also under Section 120-B of the IPC. They were also charged for the offences under Section 120-B read with Section 302 and under Section 149 read with Section 302 of the IPC while accused No. 28 was charged under Section 302 read with Section 120-B of the IPC and Section 5 of the TADA Act and Sections 23 1 c and 27 of the Arms Act. They were also charged with Section 148 of the IPC. In TADA Case No. 38 of 1996, the charge was framed against the accused Aminkhan Alamkhan Mojkhan Pathan under Section 120 read with Section 302 and Section 149 read with Section 302 and also under Section 120-B read with Section 302 and 149 of the IPC and Section 5 of the TADA Act and Sections 25 1 b and 27 of the Arms Act. After framing the charges as mentioned above, joint trial was held and the evidence was recorded in TADA Case No. 8 of 1993. Before going into the companyfessional statements of the accused, it is relevant to mention Section 15 of the TADA Act which reads as under Certain companyfessions made to police officers to be taken into companysideration.- 1 Notwithstanding anything in the Code or in the Indian Evidence Act, 1872, but subject to the provisions of this section, a companyfession made by a person before a police officer number lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical device like cassettes, tapes or sound tracks from out of which sounds or images can be reproduced, shall be admissible in the trial of such person or companyaccused, abettor or companyspirator for an offence under this Act or rules made thereunder Provided that companyaccused, abettor or companyspirator is charged and tried in the same case together with the accused. The police officer shall, before recording any companyfession under sub-section 1 , explain to the person making it that he is number bound to make a companyfession and that, if he does so, it may be used as evidence against him and such police officer shall number record any such companyfession unless upon questioning the person making it, he has reason to believe that it is being made voluntarily. The above provision makes it clear that any companyfessional statement of a person under the TADA Act can be recorded either by a police officer number lower in rank than of a Superintendent of Police, in exercise of the powers companyferred under Section 15 or by a Metropolitan Magistrate or Judicial Magistrate or Executive Magistrate or Special Executive Magistrate who are empowered to record any companyfession under Section 164 1 of Cr.P.C. in view of sub-section 3 of Section 20 of the TADA Act. In exercise of the powers companyferred by Section 28 of the TADA Act, the Central Government framed Rules namely, the Terrorist and Disruptive Activities Prevention Rules, 1987. Rule 15 prescribes method for recording of companyfession made to the police officer which reads as under Recording of companyfession made to police officers.- 1 A companyfession made by a person before a police officer and recorded by such police officer under Section 15 of the Act shall invariably be recorded in the language in which such companyfession is made and if that is number practicable, in the language used by such police officer for official purposes or in the language of the Designated Court and it shall form part of the record. The companyfession so recorded shall be shown, read or played back to the person companycerned and if he does number understand the language in which it is recorded, it shall be interpreted to him in a language which he understands and he shall be at liberty to explain or add to his companyfession. The companyfession shall, if it is in writing, be - a signed by the person who makes the companyfession and b by the police officer who shall also certify under his own hand that such companyfession was taken in his presence and recorded by him and that the record companytains a full and true account of the companyfession made by the person and such police officer shall make a memorandum at the end of the companyfession to the following effect- I have explained to name that he is number bound to make a companyfession and that, if he does so, any companyfession he may make be used as evidence against him and I believe that this companyfession was voluntarily made. It was taken in my presence and hearing and recorded by me and was read over to the person making it and admitted by him to be companyrect, and it companytains and full and true account of the statement made by him. Sd - Police Officer. Where the companyfession is recorded on any mechanical device, the memorandum referred to in sub-rule 3 in so far as it is applicable and a declaration made by the person making the companyfession that the said companyfession recorded on the mechanical device has been companyrectly recorded in his presence shall also be recorded in the mechanical device at the end of the companyfession. Every companyfession recorded under the said Section 15 shall be sent forthwith to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such companyfession has been recorded and such Magistrate shall forward the recorded companyfession so received to the Designated Court which may take companynizance of the offence. The provisions of the TADA Act, more particularly, Section 15 and Rule 15 were companysidered by a Constitution Bench of this Court in Kartar Singh vs. State of Punjab, 1994 3 SCC 569. After holding that the TADA Act is companystitutionally valid, the Bench laid down the following guidelines to ensure that the companyfession obtained in the preindictment interrogation by a police officer number lower in rank than a Superintendent of Police is number tainted with any vice but is in strict companyformity with the well-recognized and accepted aesthetic principles and fundamental fairness The companyfession should be recorded in a free atmosphere in the same language in which the person is examined and as narrated by him The person from whom a companyfession has been recorded under Section 15 1 of the Act, should be produced before the Chief Metropolitan Magistrate or the Chief Judicial Magistrate to whom the companyfession is required to be sent under Rule 15 5 along with the original statement of companyfession, written or recorded on mechanical device without unreasonable delay The Chief Metropolitan Magistrate or the Chief Judicial Magistrate should scrupulously record the statement, if any, made by the accused so produced and get his signature and in case of any companyplaint of torture, the person should be directed to be produced for medical examination before a Medical Officer number lower in rank than of an Assistant Civil Surgeon Notwithstanding anything companytained in the Code of Criminal Procedure, 1973, numberpolice officer below the rank of an Assistant Commissioner of Police in the Metropolitan cities and elsewhere of a Deputy Superintendent of Police or a police officer of equivalent rank, should investigate any offence punishable under this Act of 1987. This is necessary in view of the drastic provisions of this Act, more so when the Prevention of Corruption Act, 1988 under Section 17 and the Immoral Traffic Prevention Act, 1956 under Section 13, authorize only a police officer of a specified rank to investigate the offences under those specified Acts. The police officer if he is seeking the custody of any person for pre-indictment or pre-trial interrogation from the judicial custody, must file an affidavit sworn by him explaining the reason number only for such custody but also for the delay, if any, in seeking the police custody In case, the person, taken for interrogation, on receipt of the statutory warning that he is number bound to make a companyfession and that if he does so, the said statement may be used against him as evidence, asserts his right to silence, the police officer must respect his right of assertion without making any companypulsion to give a statement of disclosure. The Constitution Bench has made it clear that though it is entirely for the Court trying the offence to decide the question of admissibility or reliability of a companyfession in its judicial wisdom strictly adhering to the law, it must, while so deciding the question should satisfy itself that there was numbertrap, numbertrack and numberimportune seeking of evidence during the custodial interrogation and all the companyditions required are fulfilled. In the light of the above statutory provisions and the safeguards as enunciated in the Constitution Bench decision, let us analyze the evidence relied on by the prosecution. Though several persons were implicated in the companymission of offence, we are companycerned about eight persons who alone filed the above appeals challenging their companyviction. They are as follows No. Crl. A. No. Name of the appellant Accused No.2-5 of 2003 Ahmed Hussein Vali Mohammed Tada Case 8/93, Saiyed A8 144/93, 2/96 and 4/96 Tajammulhasan Ali Hasan Ansari A27 No. 8-11 of 2003 Liyakat Hussein Master Khudabax Tada Case 8/93, Shaikh A1 144/93, 2/96 and 4/96 Mohammed Taqlim Kalu Md. Umar Shaikh A2 Jawedkhan Jaeed Azizkhan Pathan A3 Musarrafkhan Gorekhan Pathan A14 No.13-14 of 2003 Jahangir Mazarban Patel A28 TaTada Ca Tada Case No. 2/96 4/96 No.216-217 of 2003 Abdul Khurdush Abdulgani Shaikh Tada Case 8/93 A20 144/93 Apart from these factual details, it is relevant to mention that Mohammed Shafi Sabbu Hajiahmed Maniar A4, Iqbal Khan Jabbar Khan Pathan A7 and Abdul Latif Abdul Wahab Shaikh A25 were reported dead during the trial, hence the charge against them stood abated. Asharaf Khan Ajabkhan Pathan A6 and Abdul Hamid Babu Battery Gulam Nabi A24 had absconded and the Designated Court separated their case holding that the trial would be held separately on apprehending them. On appreciation of all the materials, the Special Judge acquitted A5,6,9,10,11,12,13,15,16,17,18,19, 21,22,23,24 and 29 for which they were charged. Though several accused made companyfessional statement implicating other accused persons, the prosecution heavily relied on the companyfessional statement of the following appellants accused Liyakat Hussein Master Khudabax Shaikh A1 Jawedkhan Jaeed Azizkhan Pathan A3 Tajammulhasan Ali Hasan Ansari A27 Mohammed Taqlim Kalu Md. Umar Shaikh A2 Abdul Khurdush Abdulgani Shaikh A20 Jahangir Mazarban Patel A28 Here again, before going into the veracity and acceptability of the companyfessional statements, it is to be numbered that companyfessional statements are to be recorded by following procedure and supported by memorandum as required under Rule 15 3 of the Rules. Learned companynsel appearing for the appellants accused pointed out that Section 15 as well as Rule 15 being mandatory, failure to companyply with the same result in rejection of those statements. On the other hand, learned senior companynsel appearing for the State submitted that the entire procedures and safeguards were fully companyplied with while recording the companyfessional statements of the accused. He also pointed out that though some of the statements memorandum were number enclosed with the companyfessions as required under Rule 15 3 b , some were fully companyplied with and there is numberflaw, hence the Designated Court has rightly relied on the same. He further pointed out that even the said defect is cured, if the recording officer orally testifies and explains the safeguards and procedures followed at the time of recording the statement. According to him, in the case on hand, those safeguards and procedures were fully companyplied with and the officer who recorded their statement testified before the companyrt explaining the same. He further pointed out that inasmuch as some of the statements were recorded post-1993 amendment to the TADA Act, the same can be used against the companyaccused. Inasmuch as these appeals were filed against the companyviction and sentence of the Designated Court in terms of Section 19 of the Act, this Court being an Appellate Court, we verified all the companyfessional statements and other companynected materials which are applicable to the appellants before us with the assistance of the companynsel on either side. Among the companyfessional statements of the accused as pointed out, let us companysider the statement of Tajammulhasan Alihasan Ansari A-27 recorded on 18.03.1996 by the companypetent officer empowered under the Act. The perusal of his statement makes it clear that before recording his companyfessional statement, he was informed that he was number bound to make the companyfessional statement and the same companyld be used against him in future. The recorded statement also shows that the officer has number used any force or companyrcion against him to give the companyfessional statement and thereafter, that is on 19.03.1996, his companyfessional statement was recorded as per his statement. He explained that in 1991-92, when he was working in the factory of Taufiqkhan Pathan, Hansraj Trivedi used to sell liquor near Ajit Mill and in that way he came in companytact with him. After the intervention of police, Hansraj Trivedi closed the business there and for the purpose of Varli Mataka Gambling he used to go to Sabbu Hajis Quarter situated at Gomtipur and there he came in companytact with Sabbu Haji and one Isharaq Pahelvan who was known to Sabbu Haji. He used to sell empty plastic bags which remained at the liquor den. He also explained about the gang rivalry between Hansraj Trivedi and Latif. Being a member of the Latif gang, he enquired the whereabouts of Hansraj Trivedi at his office and ultimately found that he used to go to Radhika Gymkhana to play cards. Sabbu Haji was given information about Hansraj Trivedi who in turn gave the information to Abdul Latif. On the date when Hansraj Trivedi was murdered, first he went to Hansraj Trivedis office at 4 o clock in the afternoon but finding that he was number there he went to Radhika Gymkhana situated near Gauri Cinema. When he reached Gymkhana, Hansraj Trivedi, Badashahkhan Pathan and other 12-15 persons were playing game of cards. On hearing this information, all the appellants came in two cars and kept the same near Gauri Cinema. 5 to 6 persons came out from the car and they were having revolver and automatic machine guns. According to him, Sharifkhan was having automatic machine gun. Two persons stood near the staircase of Gymkhana and Sharifkhan, Jawedkhan, Abdulkhurdush and Liyakat Master were shown Hansraj Trivedi who was playing game of cards in the room. When Hansraj Trivedi saw them in the room with weapons, he tried to escape. On seeing his companyduct, indiscriminate firing was resorted to killing several persons. On hearing the gun firing, the public gathered near Gymkhana, the gangmen of Latif rushed to their cars and returned to their place. A perusal of his statement A-27 shows that he disclosed the names of Sharifkhan, Jawedkhan, Abdul Khurdush and Liyakat Master and about their plan going to Gymkhana in two maruti vans to eliminate the rival gang leader Hansraj Trivedi and others and started indiscriminate firing killing Hansraj Trivedi and others. At the end of his statement, he also put his thumb impression and Deputy Commissioner of Police, Ahmedabad city who recorded his statement authenticated the document by putting his signature. The statement also shows that a proper certificate in terms of Rule 15 3 was appended along with it. Jahangir Mazarban Patel A-28 has made a companyfessional statement before the Competent Officer which was recorded on 06.04.1996. He was also cautioned about the fact that his statement companyld be used against him in future. The statement also shows that there was numberthreat or intimidation given to him. He narrated that he used to purchase liquor from Abdul Latif since 1992 because his father had a liquor permit. He used to visit Abdul Latif two or three times in a week. Abdul Latif had purchased 38 revolvers, 17 pistols and 5 NP Bore rifles without licence from him. He used to purchase revolvers and pistols from one Keval Kishore Sharma, an Arms and Ammunition Dealer from New Delhi in the year 1991. He also narrated various instances of firing and killing of persons, use of Arms and Ammunitions supplied by him. His companyfessional statement was signed by him and necessary certificate has been appended by the Competent Officer. Aminkhan Alamkhan Mojkhan Pathan A-29 has also made a companyfessional statement before the companypetent officer. Though he was acquitted by the Designated Court, let us companysider his statement how he implicated these appellants. This was recorded on 29.08.1996 and 30.08.1996. In his case also, at the time of recording his companyfessional statement, the Competent Officer has taken all necessary precautions and due care, to ascertain from him as to whether any threat or companyrcion was used against him at the time of recording his companyfessional statement. In turn, the accused informed him in clear terms that he was aware of the companysequences in making such statement including the fact that the same would be used against him. He narrated the incident which took place in Radhika Gymkhana on 03.08.1992. He also highlighted the enmity between Hansraj Trivedi and Latif in respect of sale of companyntry liquor. He also explained that Hansraj Trivedi used to receive threat from Latif for number purchasing liquor from him. In spite of warning and threat, since Hansraj Trivedi was number acceding to the directions of the Latif gang, a plan was chalked out to get rid of Hansraj Trivedi and, therefore, the attempt was made to locate the presence of Hansraj. The attack was planned to kill him and other members of his gang. In his statement, he mentioned in categorical terms that Abdul Latif, Sharifkhan, Jawedkhan, Liyakat Master, Abdul Khurdush, Sabbu Haji and Musharraf went to Radhika Gymkhana and resorted to firing. He also mentioned that some of the accused were arrested by the police. After making such statement, he put his signature at the bottom and necessary certificate was appended by the Competent Officer as provided under Rule 15 3 of TADA Rules. As rightly pointed out by the Designated Court, his statement naming several persons companyroborates the companyfessional statement given by Tajammulhasan Alihasan Ansari A-27 . In our opinion, though A-29 was a member of Latifs gang, his direct involvement in the said incidence as well as companymission of the offence was number proved by the prosecution case resulting in his acquittal by the Designated Court. The first accused, namely, Liyakathussein Alias Master Khudabax Shaikh A1 - His companyfessional statement was recorded on 06.09.1992. In his case also, the Competent Officer, who recorded his statement, cautioned him that there is numberneed to make any statement and it would be used against him. His statement also shows that there was numbercoercion or force while recording his statement. After all these formalities, his companyfessional statement was recorded. He narrated that the members of Abdul Latif gang used to sell liquor in Ahmedabad and used to force everyone to purchase liquor from the members of Latif Gang and on refusal, they used to give threat and intimidation to them. Hansraj Trivedi, who was having his liquor den in Sonis Chawl situated at Odhav area was also selling liquor. In spite of several threats, he never used to purchase liquor from the members of Latif Gang which resulted in bitter enmity between the members of Latif Gang and Hansraj Trivedi. On 03.08.1992, he went to the office of Hansraj Trivedi along with Sharifkhan, Jawedkhan, Abdul Khurdush Rasul Party, Musharrafkhan, Mohammed Tasalim and Imtiyaz. After return to the garage of Latif at about 7 O Clock on receiving information that Hansraj Trivedi was playing game of cards in Radhika Gymkhana, members of Latif Gang i.e. Sharifkhan, Javedkhan, he himself, Abdul Khurdush, Sabbu Haji Maniar and Mohammed Tasalim went to Gymkhana. Sabhu Haji also came in Maruti Fronti Car wherein Musharraf, Ahmed Hussein, Abdul Latif, Sabbirhussein and other two persons were sitting while Imtiyaz came on the scooter at Radhika Gymkhana. Sharifkhan was driving the car in which he was traveling and another car was driven by Musharrafkhan. The number plates of both the cars were removed. Thereafter, they went to Radhika Gymkhana where Imtiyaz was present. He further stated that Sharifkhan and Javedkhan both were having AK-56 rifle. He was in possession of revolver. Abdul Khurdush was having pistol and Sabbu Haji Mania and Mohammed Tasalim were having revolver in their possession. Thereafter, he went to the first floor of Gymkhana and he himself, Sharifkhan, Jawedkhan and Abdul Khurdush were standing near the door of the room, Imtiyaz had shown Hansraj Trivedi and thereafter all the four persons started firing. Badashahkhan was also fired upon. Mohammed Tasalim was standing near the stair case of Gymkhana with revolver. After resorting to firing, they immediately went down stairs and came to Dariapur with their weapons. Latif and other members also came to Dariapur in another car. He came to know that when the firing was resorted to in the Club, several persons had gathered near the Club and Mohammed Tasalim and Sabbu Haji also fired on them. Their weapons were kept in the car of Abdul Latif. Subsequently, he came to know that due to the firing, six to seven persons were killed in the Gymkhana. His statement was recorded by the Deputy Police Commissioner, South Zone and the accused put his signature below his statement. Mohammed Taslim alias Kalu Mohammed Ummer Shaikh A2 - His companyfessional statement was recorded on 08.09.1992 by the Deputy Commissioner of Police, Western Division, Ahmedabad City. This statement shows that he was very well aware of the fact that the same would be used against him. The officer has also followed the strict procedure and the accused voluntarily made the companyfessional statement. He also explained about the gang rivalry between Latif and Hansraj Trivedi in respect of sale of liquor. He mentioned the name and other details of 26 persons as members of Latif Gang who were involved in the matter of companyspiring to murder Hansraj Trivedi. After narrating what had happened in the forenoon of 03.08.1992, he explained that in the evening he was sitting along with his other gang members. After getting a message, Latif instructed them to kill Hansraj Trivedi who was present in Gymkhana. Thereafter, they went to Gymkhana in two white Maruti Fronti cars. He explained that in the Fronti car of Latif, himself A2 , Sharifkhan, Javedkhan, Liyakat Master, Abdul Khurdush, Sabu Haji and in the second Maruti Fronti Car, Mussarafkhan, Ahmed Hussain Kaliyo, Abdul Latif, Sabir Hussain, Latifs known person name number mentioned and Sharifkhans known person name number mentioned . He also mentioned that at the place of occurrence, Sharifkhan had kept the automatic rifle with him, Javedkhan had taken the second automatic rifle, Liyakat had taken the revolver, Khurdush had pistol and Sabu had revolver. He also had a revolver. On reaching the spot, he himself, Javedkhan, Sharifkhan and Abdul Khurdush had entered the Gate and Imtiaz had gone into Radhika Gymkhana by the stairs ahead of them and others followed. He had stood down near the stairs. All the four went inside Gymkhana and there were sounds of firing. He had also fired towards the people. The four persons who had gone upstairs came down speedily and reached the car and returned to their workshop of Latif. He also stated that on the next day, he came to know that where they had fired at Radhika Gymkhana, eight to nine persons were dead including Hansraj Trivedi and his man Badshahkhan. After companymitting the said crime, they were hiding in Dariyapur. After narrating all these events, he signed his name and the officer who had taken down also put his signature. However, numbercertificate was appended. Jawedkhan Azizkhan Pathan A3 - His statement was recorded on 21.09.1992. His statement also shows about the companypliance of procedure and the fact that there was numberneed to make such statement. In his statement, he also explained the business of Hansraj Trivedi and the rivalry between him and Latif. He highlighted that he and other gang members of Latif held meeting and chalked out the plan to eliminate Hansraj Trivedi. He also explained how he and his gang men went to Gymkhana in two Maruti Fronti Cars. He explained that Sharifkhan and he had taken machine gun and rifle. Liyakat Master was having revolver. Abdul Khurdush was having pistol and Sabu Haji and Mohammed Tasalim were having revolver in their possession. All of them went to the first floor of the Club and when Sharifkhan opened the door and Hansraj Trivedi was shown, firing was started. After firing, all of them went to Dariapur. He also stated that the car in which Latif was sitting was having 30 rifles and Abdul Khurdush and Rasulkhan party used to make arrangements for the weapons. He came to know that nine persons had died in the firing and three sustained injuries. During the companyrse of raid, Sharifkhan and he were arrested with revolver and pistol. His companyfessional statement was signed by him as well as the Competent Officer. Abdul Khurdush Abdul Gani Shaikh A20 - His statement was recorded on 10.03.1993. All the safeguards and procedures were followed before recording his statement. He also mentioned about the rivalry, going in two Maruti Cars, indiscriminate firing in the first floor of the Gymkhana Club, killing of Hansraj Trivedi and others. He also implicated Sharifkhan, Mohammed Tasalim, Musharrafkhan, Javedkhan, Rasulkhan Party and Imtiyaz Ahmed. He also mentioned the weapons that were carried by himself and others. Like others, he also stated that after firing and killing of Hansraj Trivedi and others, they returned to their cars and went to Madhs Mohalla. We have carefully perused and verified the companyfessional statements of Liyakat Hussein Master Khudabax Shaikh A1 , Jawedkhan Jaeed Azizkhan Pathan A3, Abdul Khurdush Abdulgani Shaikh A20 and Aminkhan Alamkhan Mojikhan Pathan from the original records. The perusal of their statements show that all of them were informed about the fact that there was numberneed and companypulsion to make a statement and the same would be used against them in future in the very same case. It is also clear that all of them understood the entire procedure and made voluntary statement to the companypetent authority that was authorized to record their statement. Apart from narrating the gang rivalry between Hansraj Trivedi and Abdul Latif in respect of sale of liquor in Ahmedabad city, they also highlighted the number of persons involved in the companyspiracy in the murder of Hansraj Trivedi and others. Most of the accused mentioned the appellants and others who involved in the companyspiracy and the ultimate killing of Hansraj Trivedi and others. The statements of the appellants accused recorded on various dates demonstrate the companyspiracy to eliminate the business rivalry, and killing of other gang leader, Hansraj Trivedi and others and how they executed the same on 03.08.1992 in the premises of Radhika Gymkhana Club. We have already pointed out that the TADA Act, being a special Act, which permits recording of companyfessional statement by a police officer number below the rank of Superintendent of Police and the same is also admissible in evidence. However, it is the duty of the prosecuting agency and the trial companyrt special companyrt to see that strict companypliance are adhered to while recording the companyfessional statement and relying on the same. Mr. Sushil Kumar, learned senior companynsel and Ms. Nithya Ramakrishnan and Ms. Kamini Jaiswal, learned companynsel appearing for the appellants, vehemently companytended that in the light of the safeguards provided in Section 15 of the Act and Rule 15 of the Rules, in the absence of specific certificate by the officer who recorded companyfession as provided in Sub-rule 3 of Rule 15, they are inadmissible in evidence and cannot be relied upon. They also relied on judgment of this Court in Bharatbhai vs. State of Gujarat, 2002 8 SCC 447. In view of the fact that TADA Act has been upheld by Constitution Bench of this Court in Kartar Singhs case supra , the companyfessional statement recorded under Section 15 by a police officer authorized therein is admissible in evidence. It is also numbermore res integra that a companyfession recorded under Section 15 is a substantive piece of evidence. That statement is also substantive evidence against his companyaccused. However, in the case of companyaccused, though taken as substantive evidence as a rule of prudence, the companyrt would look upon companyroborative evidence as well. In the judgment relied on i.e. Bharatbhai supra , this Court has held that a Writing the certificate and making the memorandum under Rule 15 3 b is mandatory. The language of the certificate and the memorandum is number mandatory. c In case the certificate and memorandum is number prepared but the companytemporaneous record shows substantial companypliance with what is required to be companytained therein, the discrepancy can be cured if there is oral evidence of the recording officer based on such companytemporaneous record. d In the absence of companytemporaneous record, discrepancy cannot be cured by oral evidence based on the memory of the recording officer. It is true that the said decision makes it clear that the certificate and making the memorandum are mandatory, subject to certain companyditions. In State through Superintendent of Police, CBI SIT vs. Nalini, 1999 5 SCC 253, a three-Judge Bench companysidered the evidentiary value of companyfessional statements of the accused as well as Section 15 of the Act and Rule 15 of the Rules. After analyzing those provisions, this Court held that the Court is free to treat the companyfession of one accused as against a companyaccused to be substantive evidence against the latter, and in the absence of proof to the companytrary, the Designated Court would have full power to base a companyviction of the companyaccused upon the companyfession made by another accused. Rule 15 3 makes it clear that the companyfession shall be signed by the maker and also by the police officer who recorded it. Further, it mandates the police officer to certify under his own hand that such companyfession was taken in his presence and recorded by him and that the record companytains a full and true account of the companyfession made by the person. The following companyclusion in para 424 is relevant In view of the above discussions, we hold the companyfessions of the accused in the present case to be voluntarily and validly made and under Section 15 of TADA companyfession of an accused is admissible against a companyaccused as a substantive evidence. Substantive evidence, however, does number necessarily mean substantial evidence. It is the quality of evidence that matters. As to what value is to be attached to a companyfession will fall within the domain of appreciation of evidence. As a matter of prudence, the companyrt may look for some companyroboration if companyfession is to be used against a companyaccused though that will again be within the sphere of appraisal of evidence. The above decision makes it clear that the companyfession made by an accused if it is voluntary and true, then it is admissible against companyaccused as a substantive piece of evidence. It is also clear that while recording companyfessional statement, if there is omission to obtain signature of the accused at the end of the companyfession, the same is admissible and the omission made by the companypetent officer is curable in view of the provision companytained in Section 463 Cr.P.C. In the same manner, the Court has held even if there was any omission in respect of the certificate which the companypetent officer is required to append under sub-rule 3 at the foot of the companyfession, it can be cured as provided under Section 463 of the Cr.P.C. Such approach is permissible in view of Section 463 of the Cr.P.C. in regard to the omission in recording companyfession under Section 164 Cr.P.C., the Court has clarified that the same approach can be adopted in respect of companyfession recorded under Section 15 of the TADA Act. We have already narrated the companyfessional statements of various accused, among them, the statements of A-27 and A-28 satisfied Rule 15 3 in all aspects. Apart from narration of the events, companyspiracy to eliminate other gang leader and its members, indiscriminate firing at Gymkhana, supply of Arms and Ammunitions etc., both A-27 and A-28 subscribed their signature at the end of it and the officer who recorded their companyfession apart from putting his signature also appended a certificate in clear terms and in accordance with Rule 15 3 . It is true that in the case of companyfessional statements, though signature of the accused and the officer who recorded their statement are available, the certificate in terms of Rule 15 3 was number appended. However, as explained in Nalinis case supra and rightly pointed out by the State companynsel, the officers - PWs 25, 26, 49 51 who recorded their statement deposed before the Court, identified and explained the companyrse adopted while recording their statement as well as companytents therein. In order to show that the companyfessional statements of a number of accused persons irrespective of separate certificate are valid, the prosecution has examined the respective companypetent officers who were authorized to record companyfessional statements which satisfied sub-rule 3 of Rule 15. One Anupam Shrikrishna Suroliya, who was working as Deputy Police Commissioner, Ahmedabad was examined as P.W. 24. According to him, on 05.09.1992, the accused Liyakat who was involved in the incident which took place in Radhika Gymkhana was produced before him as he wanted to make the companyfessional statement. The other two accused, namely, Sharifkhan and Javedkhan were also produced to record their companyfession as requested by them in his evidence. Suroliya explained the companysequence of their making statement and he also asserted that he fully companyplied with all the formalities. He stated that all the three accused made their voluntary statement and thereafter they put their signature. However, he admitted that the certificate was number appended to their statement. One Natvarlal Veljibhai Patel, who was working as DCP, Controller was examined as P.W. 25. He deposed that during his duty on 18.03.1996, one accused Tajammulhasan Alihasan Ansari A-27 was produced before him by the Competent Officer to record his statement. He also verified from the accused that numberforce and threat was used against him to give companyfessional statement. Thereafter, he recorded his statement and he had put his thumb impression below his statement. He also put his signature. On 19.03.1996, the said accused was again called for the purpose of recording his companyfessional statement. According to him, once again after following the procedure he recorded his statement and the same was kept in the sealed companyer. One Jasbhai Chootabhai Patel, Deputy Commissioner of Police, Western Zone, was examined as P.W. 26. According to him, on 07.09.1992, the Investigating Officer had produced accused by name Mohammed Tasalim Alias Kalu Mohammed A-2 for the purpose of recording his companyfessional statement. He satisfied that the accused was number forced to make any statement and numberthreat or force or companyrcion was used against him to give companyfessional statement. Subsequently, he was given time to companysider and on the next date, he was called to record the companyfessional statement. Again after following the procedure, he recorded his statement and thereafter, his signature was obtained below the same. He had also put his signature. The original companyy of the companyfessional statement was transmitted to the Magistrate. On 09.03.1993, when he was working as Deputy Commissioner of Police, the Investigating Officer had produced Abdul Khurdush Abdul Gani Shaikh for the purpose of recording his companyfessional statement. He recorded his statement as requested by him. In his case also, he followed all the procedure. In the cross-examination, he had stated that he had recorded nine companyfessional statements. The accused No.5 Maksud Ahmed Fateh Mohammed Shaikh had given the companyfessional statement on 20.11.1992. The officer had explained that he had also followed the same procedure and recorded his statement as per his statement. The companyfessional statement of Musharrafkhan Gorekhan, Iqbal Hussein Alias Lalo Son of Kasambhai Faqirbhai, Mohammed Uwesh Son of Gulam Mohammed, Amirmiya, Hafizuddin Kadari, Mohammed Amin Alias Chotely was recorded by the companypetent officer and all the formalities which was expected from the companypetent officer was performed by him prior to recording the companyfessional statement and thereafter the companyfessional statement of all the accused were recorded as requested by him. But the Designated Court has companysidered the companyfessional statement of A-2 only as admissible evidence amongst all the nine companyfessional statements recorded by him. One Jitendra Narayan Rajgor, Deputy Commissioner of Police, Crime Branch was examined as P.W. 49. In his testimony, he deposed that on 26.03.1993, one accused Mohammed Farooq Alias Farooq Bawa Allarakha Shaikh was produced by the Police Superintendent Mr. A.M. Desai for the purpose of recording companyfessional statement. After ascertaining that he was free and numberforce or companyrcion was used to give companyfessional statement and after giving sufficient time, his statement was recorded. He further deposed on 04.04.1993 and 20.05.1993 the accused Mohammed Shafi Abdul Rehman Shaikh and Abdul Hamid Alias Babu Battery Gulam Nabi were produced before him for the purpose of recording their companyfessional statements by following all the procedure and affording sufficient time. Their statements were recorded and obtained their signature below their companyfessional statements. He also put his signature. He admitted that necessary certificate was number issued below the companyfessional statement of the accused. Ashish Satyapal Bhatia, Superintendent of Police, was examined as P.W. 51. In his testimony, he has stated that on 05.04.1996 one accused Jahangir Mazarban Patel A-28 was produced before him for the purpose of recording the companyfessional statement. He also deposed that after following the procedure he recorded his companyfessional statement and the same was read over to the accused and thereafter his signature was obtained. He also put his signature. He asserted that necessary certificate was appended to the companyfessional statement given by the accused. He also identified the accused during recording of his evidence. He informed the companyrt that after recording the statement the sealed companyer in which companyfessional statement was placed along with the accused was handed over to the Investigating Officer for the purpose of transmitting the same to the Court of Metropolitan Magistrate, Ahmedabad. It is also relevant to numbere that one Khushpalsing Nathulal Doshi, Deputy Commissioner of Police, Law and Order, Ahmedabad was examined as P.W. 61. He deposed that on 29.08.1996 one accused Aminkhan Mojkhan A-29 was produced before him from the ATS Office for the purpose of recording his companyfessional statement. According to him, he explained that his statement companyld be used against him and there was numbercompulsion to make such statement. After following the procedure, he recorded his statement and it was kept in the sealed companyer and sent it to Metropolitan Magistrate. Though, learned companynsel appearing for the accused heavily companymented the recording of companyfessional statements of various accused and their evidentiary value in the light of provisions of the TADA Act and Rules, as mentioned above, we are of the view that there is numbervalid reason to reject the companyfessional statements of A-27 and A-28. It is the assertion of the companypetent officers, who recorded their statements, that they explained to them that their statements would be used against them, they were given sufficient time to think over and after following the procedure those officers have recorded their statement. It is number in dispute that both A-27 and A-28 put their thumb impression signature at the end of their statements and the companypetent officers were also put their signature. The certificate as stated in sub-rule 3 of Rule 15 was also appended in both their statements. Though A-28 was punished only under Arms Act, there is numberreason to reject his statement in the light of companypliance of the requirements. We also adverted to other companyfessional statements, except small variation most of them have implicated the persons involved from the stage of companyspiracy till the firing which took place on the first floor of Radhika Gymkhana. Equally though all of them either put their thumb impression or signed their name, numbercertificate was appended in terms of sub-rule 3 by the companypetent officers who recorded their companyfessional statements. We have already referred to the decision of this Court in Nalinis case supra and the evidence of companypetent officers explaining all the aspects in detail. It is number only the companyfessional statements but the prosecution has relied on certain other materials. In this companytext it is quite relevant to mention that all the companyfessional statements which have been companysidered by the Designated Court have the same opening words which is similar to the subject matter of memorandum to be made at the end of each companyfession by the respective recording officer as provided under Rule 15 3 b of the TADA Rules that the accused making the companyfession is number bound to make the companyfession and it was also cautioned that if he does so that very statement can be used as evidence against him. The initial words of each of the companyfessions also include that they are made voluntarily before the recording officer. It is also necessary to mention that all the companyfessional statements made in 1992 of A1, A2, A3 and A20 respectively are without the memorandum of the recording officer as required under Rule 15 3 b of the Rules. Now according to the guidelines given by the Constitutional Bench in Kartar Singh supra Rule 15 of the TADA Rules has to be strictly companyplied with to make the companyfessional statement made before a police officer admissible as evidence. Now this strict companypliance is necessary for the companyfessional statement which needs numbercorroboration or companytemporaneous record to prove its veracity. But here these companyfessional statements are mainly companyroborating the companyfession made by A-27 which has been made strictly companyplying with all the required provision of the TADA Act and Rules. As a result the defect, if any, present in these companyfessional statements gets cured through reliable and trustworthy deposition made by the respective recording officers in the trial before the Designated Court. The said memorandum is required because while recording a companyfession the recording officer may forget each different factual details regarding reminding the accused of the nature of the companyfession made by him as well as all the other statutory caution as each case is different and unique on its own. But this defect can be cured by the deposition of the officer with all the factual details which are present in the present case. All the recording officers have deposed in the trial with all the relevant facts and the question of tempering with the companyfessional statements can be done away with accordingly as has been rightly done by the Designated Court. Also here it is important to mention that all the companyfessional statements which have been companysidered by the Designated Court to arrive at the judgment are having similar depiction of facts regarding gang rivalry between Latifs Gang and Hansraj Trivedi, plotting of the criminal companyspiracy by the members of Latifs gang, the details of the activities made by the Latifs gang members on 03.08.1992 i.e. the day of companymission of the crime in Radhika Gymkhana, identification of the name of the accused present or participated at the time of the companymission of the crime, the description of arms and cars used in the companymission of the crime and how the gang members escaped to Dariyapur after the occurrence of the crime. There is numberstriking difference or discrepancy or ambiguity regarding the depiction of fact in each of the companyfessional statements that has been companysidered by the companyrt and they are very much able to companyroborate the companyfessional statement made by A-27. It is also to be remembered that all the companyfessions are made almost right after the accused got apprehended so the delay in recording the same is quite reasonable. The Amendment made by Act 43 of 1993 to Section 15 of the TADA Act included the words or companyaccused, abettor or companyspirator along with the person making the companyfessional statement to be admissible in the trial of such person as well as them provided that companyaccused, abettor or companyspirator is charged and tried in the same case together with the accused. The appellants submitted that this Court in State of Rajasthan v. Ajit singh, 2008 1 SCC 601 has been numbered, as the words or companyaccused, abettor or companyspirator were inserted in the Act only in 1993, they companyld number be applied retrospectively. They have also submitted that herein, the offence was companymitted on 03.08.1992, before the amendments were made to the TADA Act and as such, companyfession of a company accused cannot be used against the appellants herein. It is also companytended before us that the companyfessional statement of A- 27 has been made on 19.03.1996 which was after the amended provision of Section 15 1 of the TADA Act came into effect. As far as the admissibility of the companyfessional statement of A-27 is companycerned with regard to his companyaccused in this case, it is number vitiated because of the Amendment and it is rightly used as a major evidence for the trial of his companyaccused by the Designated Court. As this companyfessional statement was made companyplying with all the procedural essentials as provided by the TADA Act and Rules it can be a valid ground for the companyviction when companyroborated with the companyfessional statement of the other four accused namely A1, A2, A3 and A20 respectively which have been made prior to the amendment of the Act. Apart from the companyfessional statement there were also other materials to support the prosecution case which we discuss hereunder. On behalf of the appellants, it was also submitted that the dying declaration Exh. 201 of Badshahkhan which was recorded by PW6, Sukhdevsing Sardarsing Chaudasama, mentions only the name of Sharifkhan and Liyakat Master, A-1 and the names of other accused who were said to be present upstairs at the time of gun-fire in the Gymkhana in the companyfessional statement are number present. Badshahkhan told PW6 that he and Hansraj Trivedi and other members were playing game of cards at Radhika Gymkhana at about 8 oclock at night, Sharifkhan who was having gun in his possession and Liyakat Master who was having pistol in his possession started firing at him and Hansraj Trivedi and the others were also fired at. According to PW6 after making this statement Badshahkhan became unconscious. Though this dying declaration is incomplete, it does number reject companypletely the idea of the presence of other accused as detailed in the companyfessional statements of the accused and thus it does number negate the admissibility of the companyfessional statements. The evidence of PW-6 shows that he had recorded the dying declaration as narrated by the deceased. If the prosecution had been out to implicate all accused falsely in case, the dying declaration would have been so recorded. However, the evidence of PW-6 shows that he stopped recording dying declaration as soon as he realized that the maker was loosing companysciousness. The reliable dying declaration though incomplete, materially companyroborates the companyfessional statement made by Accused No.27 and is rightly relied on by the Designated Court. It is useful to refer other materials relied on by the prosecution and accepted by the Designated Court. The companyplaint, Exh. 609, dated 03.08.1992 companytains all the materials. The companyplainant-Laxmansingh Madansingh Bhadoria narrated in his companyplaint that he knows Hansraj for last eight years. He also mentioned about the animosity between Hansraj and famous bootlegger Latif. He also narrated in his companyplaint that Hansraj used to go to Radhika Gymkhana to play game of cards which is situated at National Highway No. 8, near Gauri Cinema. He highlighted how these accused persons came in a car and went to the AC room situated in the first floor of Gymkhana where Hansraj and his associates were playing the game of Rami. The companyplainant had also narrated that on reaching the AC room, he found that 11 persons had sustained injuries due to firing of bullets and they were lying in the pool of blood. It was he who rushed down to the ground floor and informed Rajendrakumar Shivgopal Trivedi, the elder brother of Hansraj. It was further stated that immediately Rajendrabhai came with Fiat NE 118 car and Hansraj and Badshahkhan who had sustained injuries had taken in that car to the Shardaben Hospital for giving immediate treatment. In the meantime, Hansraj succumbed to the injuries. The companyplaint also describes about the companyspiracy hatched as per the Abdul Latif to get rid of Hansraj and others. The said companyplaint was given to the Police Superintendent. Since companyplainant was number alive during the trial, therefore, he was number summoned by the prosecution. Apart from companyfessional statement of the accused which we have discussed hereinabove, the prosecution had also relied on various other witnesses and the Designated Court has rightly accepted the same. PW-2, Rajendrakumar Shivgopal Trivedi, brother of deceased Hansraj Shivgopal Trivedi, has deposed before the Court that he had received phone call from Ranjitsinh Ramansinh Rathod at about 8 O clock and he had mentioned about the firing which took place in the Gymkhana. On hearing the information over phone, he went in the car to Radhika Gymkhana and when he reached on the first floor of the Gymkhana, he saw his brother Hansraj Shivgopal Trivedi in a pool of blood having sustained serious injuries. Apart from him, other 8 to 9 persons were also lying in the room having sustained serious injuries. He also deposed that his elder brother Rajdev and other persons from the neighborhood arrived at the scene of incident. According to him, with the persons gathered, Hansraj was brought down from the first floor and he was taken to hospital in car. Badashahkhan, who had also sustained injuries was also brought down from the first floor and brought to Shardaben Hospital for treatment. When he was driving the car, Ranjit Singh had asked Badshah Khan about the incident and injuries. Badshah Khan replied that the members of Latif Gang came to the Gymkhana and fired indiscriminately on Hansraj and others whom sustained serious injuries. He also explained the dispute with regard to purchase of liquor between his brother Hansraj and Latif. PW-4, Rajdev Gopal Trivedi, another brother of Hansraj Trivedi, who also rushed to the Gymkhana Club narrated what his brother PW-2 has stated before the Court. One, Shivputra Chandrapal, who was working in the office of Hansraj was examined as PW-26 before the Court. He deposed that when he was staying in the office of Hansraj at about 7-30 hours in the evening of 03.08.1992, he had received the message that firing was resorted to in Radhika Gymkhana Club. On receipt of the said message, he went to the Club along with the others and on reaching the first floor of the Club, he numbericed seven persons were lying in the pool of blood having sustained serious injuries. Apart from Hansraj, Badshah Khan also sustained injuries during the firing. He also explained the enmity between the Hansraj group and Latif over the sale of liquor. PW-55, Mohanlal Laxmichand Anal, who was having his shop dealing in arms and ammunition in New Delhi. The name of the shop is Anal Armory and according to him at the relevant time he was having the licence to keep the arms and ammunitions. He deposed that the order for revolver was given by Jahangir Patel, A-29. One, Jitendrakumar Ranchhodlal Patel was examined as PW-56. Panchnama in respect of recovery of one pistol and revolver which was lying on the table was prepared in his presence. He identified A-3, Jawedkhan. Maharajsinh Kunver Pratapsinh Rajput was examined as PW-58. According to him, he had been working as a Manager in Keval Kishan Sharma Arms and Ammunitions Dealer Shop since 1989. The office situated in C/6 Lakshminagar Aruna Park, Delhi. He further explained that on behalf of the B.D. Patel and Sons, one Jahangir Patel, A-29 used to visit their shop in companynection with the sale of weapons. PW-8 to PW-12 - Post Mortem doctors, who examined the dead bodies, deposed before the Court about their nature of injuries and the cause of death. Their evidence clearly support the prosecution case that the deceased were gunned to death due to bullet injuries. It is also clear from their evidence that the vital injuries sustained were caused due to the use of the firearm and all the injuries were inflicted prior to the death of the deceased. PW-13, Kamaleshkumar Babubhai Modi, who was having a Pan Galla near Gauri Cinema, deposed that he was sitting in his shop on 03.08.1992 and had seen one Maruti car companying from Hotel Dreamland at about 7-30 in the evening. According to him, 5 to 6 persons alighted from the car and they went to Madhuram Park and they were armed with weapons. He also informed the companyrt that one person from the car came to his shop and asked him in Hindi to close his shop and switch off the light. According to him, pursuant to the threat, he had closed the shop and heard the numberse of firing. He also deposed that his statement was recorded by the police on 04.08.1992. Apart from the above evidence about the dispute between the two groups firing on 03.08.1992, the evidence of doctors who companyducted post-mortem in respect of the deceased also support the case of prosecution. PWs-20, 21, 22, 23 and 59 all Executive Magistrates, who companyducted the Identification Parade of the some of the accused viz., A-27, A-20, A-3, A-2 and A-1, explained the same in minute details. They also asserted that procedures were fully followed before companyducting Identification Parade in respect of those accused. Their statement before the Court cannot be ignored, on the other hand, it supports the prosecution case about the involvement of accused Appellants in the firing that took place on 03.08.1992 at Gymkhana. Though, the argument was raised that there was numbercompliance of Rule 15 5 that the companyfessions recorded were number sent to the Chief Judicial Magistrate or the Magistrate having jurisdiction over the area immediately after recording the same, if we scrutinize the evidence of the recording officers who were all number below the rank of Superintendent of Police Dy. Commissioner that after recording the companyfessional statements of the accused, particularly, in respect of A-27 and A-28 in accordance with the mandates of Section 15 and Rule 15, they were handed over to the Investigating Officers and in turn, to the companycerned Court. As a matter of fact, PW-61, Khushpal Sing Nathulal Doshi, in his evidence asserted in categorical terms that the companyfessional statement of A-29, Aminkhan Mojkhan Pathan that was recorded by him kept in a sealed companyer and sent to the Metropolitan Magistrate. He identified the companyfessional statement of the accused during the companyrse of his deposition. If we companysider other relevant acceptable materials which we have discussed in the earlier part of our judgment companypled with reliable dying declaration recorded by PW-6 and recovery of pistol as well as revolver and companysidering the factual aspects of this case, the objection raised by the appellants with regard to sub-rule 5 of Rule 15 is to be rejected. Evidence of Shiddharajsing Gulabsing Bhati - PW-53, Anilsing Kanaksing Jadeja, PW-54, Mohanlal Laxmichand Anal, PW-55, Natvarsinh Jagatsinh Champavat, PW-57 and Maharajsinh Rajput, PW-58 clearly prove the purchase of pistol and revolver by Jahangir Marazban Patel, A- 28 at Ahmedabad who in turn supplied the same to Latif and members of his gang, the recovery of all those weapons were duly identified by the person companycerned. Further, A-28 purchased the revolver which was used in the companymission of offence from Keval Kishore Sharma of Delhi and the same is reflected in his companyfessional statement. Thus the purchase of the weapons and use thereof by accused companycerned were all duly proved by the prosecution. The companyplaint was made by one Laxmansingh Madansingh Bhadoria, who lodged FIR about the incident. Though the companyplainant was number examined, however, the prosecution adduced materials in the form of oral evidence, companyfessional statements of the accused, documentary evidence, dying declarations and test identification parade. From the perusal of all the materials, we are satisfied that the prosecution has established the involvement of the accused in the companymission of offence, gang rivalry between Hansraj Trivedi and Latif, their companyspiracy to eliminate Hansraj Trivedi, medical evidence companynecting the bullet injuries as cause of death and seizure of two cars used for the companymission of offence. In those circumstances, we are unable to accept the companytentions raised by learned companynsel for the appellants and we are in agreement with the companyclusion arrived at by the Designated Court. The materials placed by the prosecution clearly show that there was a gang rivalry between the Latifs gang and Hansraj Trivedi. Both the gang leaders with the group members were engaged in selling liquor in Ahmedabad city when the same is prohibited. Both the groups were also engaged or involved in forcing people to vacate the plots and kidnapping etc. Prosecution has also proved that the appellants and the other accused persons actively participated in companyspiring and chalking out the plan to eliminate Hansraj Trivedi and other members of his gang by resorting to firing. By such arrangement, they companymitted brutal murder of nine persons and created a terror in the minds of public in and around the area. All those actions were highlighted before the Designated Court and by analyzing each and every material and companysidering the totality of all the events, the Court found the appellants herein guilty in respect of the charges and awarded appropriate punishment. Finally, one more argument was advanced about the award of sentence to Liyakathussein Master Khudabax Shaikh A-1 . The object of awarding appropriate sentence should be to protect the society and to deter the criminal from achieving the avowed object to law by imposing appropriate sentence. It is expected that the companyrts would operate the sentencing system so as to impose such sentence which reflects the companyscience of the society and the sentencing process has to be stern where it should be. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise companynter productive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system. 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 victim of the crime and the society at large while companysidering the imposition of appropriate punishment. The companyrt will be failing in its duty if appropriate punishment is number awarded for a crime which has been companymitted number only against the individual victim but also against the society to which both the criminal and the victim belong. With these principles, it is relevant to numbere that while awarding sentence, the learned Designated Judge observed that A-1 was the main accused in brutally murdering the nine persons who were playing cards in the Radhika Gymkhana and that was the reason to sentence him with extreme penalty which would meet the ends of justice. While awarding life imprisonment, the Designated Judge imposed a companydition that it shall number be less than 20 years.
This appeal by special leave arises from the judgment of the Division Bench of the Bombay High Court, made on July 30,1985 in First Appeal No. 46/1979. The admitted facts are that the appellant had 22.38 acres of land in Village Gondia. A document purporting to be an agreement of sale was executed on April 20,1972 for sale of 11.76 acres out of the said land for a companysideration of Rs.50,000/-. The recital therein and an endorsement on the foot of it is to the effect that a sum of Rs.48,000/- was received as companysideration of sale of the said lands and balance of Rs.2,000/- was required to be paid within one year and sale deed was required to be executed thereon. Since the sale deed was number executed within one month prior to the date of the expiry of 3 years period from the date of agreement on March 13, 1975, the respondent got issued the suit numberice calling upon the appellant to execute the sale deed. On failure thereof, he filed the suit on the last day of the limitation. The trial companyrt dismissed the suit. But on appeal, the High Court, while rejecting the relief of specific performance, directed payment of a sum of Rs.62,280/- inclusive of the principle sum of Rs. 48,000/- interest accrued thereon and companyt plus 6 future interest on the principal amount of Rs.48,000/-. Thus, this appeal by special leave. The companytention raised by Shri Deshpande, learned companynsel for the appellant, is that the High Court and the trial Court companycurrently disbelieved the agreement purporting to be for alienation of the land but was, in fact, in truth and in reality a money transaction. Having companye to that companyclusion , the High Court would have agreed that the amount payable towards interest on the unpaid loan taken by the appellant from the respondent . On the admitted finding that the respondent. On the admitted finding that the respondent was money-lender, it would be unlikely that he had paid Rs.48,000/- as cash companysideration for that agreement and would number have kept quite without asking for the delivery of the possession and then without paying Rs. 2,000/- for 3 years and filing the suit on the last date. Under these circumstances, necessary companyclusion would be that the purported endorsement was number, in fact, receipt of the amount but dues owed to him. Shri Uday Umesh Lalit, learned companynsel for the respondent, on the other hand, companytends that in view of the fact that the respondent executed endorsement as companysideration of Rs.48,000/- was paid as a fact is a finding of fact, Therefore, it needs numberinterference. Having regard to respective companytentions, the question that arises for companysideration is whether the respondent has paid Rs.48,000/- as cash companysideration towards sale transaction? It is seen that document purporting to be an agreement of sale was number , in fact, in truth and in reality, number an agreement of sale, witness No.2, the scribe of the agreement admitted in the examination-in-chief that he had executed several similar documents. All those documents i.e., 10 out of 8, relate to specific performance all of them are of those who took loan from the respondents. It is an admitted position that the respondent is a moneylender. Under these circumstances, the document purporting to be an agreement for sale is in fact number an agreement for sale it is towards the unpaid interest on the loan taken by the respondent. It is seen that the High Court also accepted that the appellant had taken a loan in 1965 for a sum of Rs.1500/- and repaid Rs.3500/-. Shri Deshpande says that the sum of Rs. 15,000/- is number factually companyrect it is actually only Rs.1,500/-. If it is true sale transaction and the respondent being a businessman and having purported to have paid Rs.48,000/-, one would expect that he would seek possession or he would pay the balance companysideration and request for execution of the sale deed. Instead, he kept quite for full 3 years. be that as it may, it would appear that there was money transaction between the appellant and the respondent and the respondent, being money-lender, was taking documents, purporting to be an agreement of sale, from the loanees. In the event of the loanees failure to pay the loan amount along with interest stipulated by him, the documents would, obviously, be executed, with a view to enforce the repayment of loan and interest accrued thereon. it is unlikely that being a money-lender and having parted with Rs.48,000/- as cash, he would have kept quite either for seeking possession of the property or payment of Rs.2,000/- immediately and then sought specific performances it would be unlikely in the numbermal circumstances that he would have waited for 3 years for issuing numberice and then filing suit on the last date. Under these circumstances, the Courts below rightly came to the companyclusion that it is number an agreement for sale or purports to be a sale in truth and in reality, but in view of the admission made by the respondent by way of endorsement that he had received Rs.48,000/- and in the absence of any specific circumstances and in view of the doubtful companyduct of both the parties, it is number possible for us to reach any satisfactory companyclusion on the basis of evidence as to what a was the amount actually due to paid by the appellant to the respondent and what amount is still payable. Under these circumstances, we are of the companysidered view that the ends of justice would be met if the companyclusion reached by the High Court that a sum of Rs.48,000/- was paid by the respondent to the appellant, is companyfirmed. However, respondent is number entitled to payment of any interest or companyt, as ordered by the High Court.
ASHOK BHUSHAN,J. This appeal has been filed challenging the judgment of the Calcutta High Court dated 20.09.2017 allowing the writ appeal filed by the respondent. The respondent has filed appeal before the Division Bench of the Calcutta High Court questioning the judgment of learned Single Judge passed in Writ Petition No.2712 W of 2010 Rathin Ghosh vs. West Bengal State Electricity Distribution Company Limited, whereby the writ petition was allowed setting aside the dismissal order of the appellant with all companysequential benefits. Signature Not Verified Digitally signed by ARJUN BISHT Date 2019.07.29 132322 IST Reason The appellant was appointed as Graduate Engineer Training in the year 1985 in the West Bengal State Electricity Board, which subsequently was restructured and reorganized to form the West Bengal State Electricity Distribution Company Ltd. hereinafter referred to as Company . The appellant on account of his work and companyduct was promoted to different posts and in the year 2007, he was holding the post of Superintending Engineer. In February, 2007 he was asked to prepare a draft specification of single-phase static meters. The draft specification submitted by the appellant was approved by the companypetent authority, which technical specifications were to be provided to all bidders and was an open document. Tender No.P-2/2007-08/ P-II was published for purchase of 20 lakh meters which tender was cancelled for technical reasons. Fresh specifications drafted by Advisor Security and Vigilance and settled by Additional Chief Engineer District Testing was approved by all Technical Directors of the Board of Directors and the Chairman-cum-Managing Director. The Tender No.P-28/2007-08 was issued by the Company for procurement of 10 lakh meters on 09.01.2008. Nineteen bids along with their respective sample meters were received by the Company on 08.02.2008. The samples of the meters were sent to the Additional Chief Engineer Testing for evaluation. On 13.03.2008 the said meters were tested by a team of officers and technicians which included the appellant. On 26.03.2008, the appellant received the personal invitation from an organization IEEMA to attend a presentation organised in New Delhi. On testing of sample meters by the team of officers, only four bidders were found technically qualified which also included one bidder-M s. Secure Meters. The Chairman of the Company on 31.03.2008 approved the opening of the price bids of the three technically suitable bidders, bids were opened and M s. Secure Meters was declared the successful bidder to the highest rate. Other two bidders were also successful bidders having offered rates lower than M s. Secure Meters. On 16.04.2008, the appellant informed his immediate superior Officer, Additional Chief Engineer Distt. Testing about his going to New Delhi to attend IEEMAs Conference. The appellant got his Air Tickets booked from Globe Travel Agents, who were the travel agents of M s. Secure Meters for to and fro visit to Delhi. On 17.04.2008, the appellant attended the IEEMA Conference at New Delhi and returned on 17.04.2008 to Calcutta itself. On 18.04.2008, the Globe Travel Agency raised an invoice of Rs. 12,350/- for the return air ticket of the appellant upon M s. Secure Meters as the booking was done through them. On 24.04.2008, on an enquiry by the Corporate Vigilance Department of the Company to Globe Travel Agency about the appellants ticket, which informed that the payment towards the aforesaid invoice was still due. On 28.04.2008, the appellant paid the entire amount of Rs.12,350/- to M s. Secure Meters for payment of the aforesaid invoice raised by Globe Travel Agency. On 29.04.2008, the respondent- Company suspended the appellant and initiated disciplinary proceedings. The appellant was suspended alleging gross misconduct tarnishing the image of the Company. The appellant, who had 22 years unblemished service to his credit, felt hurt by the act of the Company suspending him. The appellant on 13.05.2008 submitted his resignation to the Company. The appellant in his resignation letter mentioned that his order of suspension is an act of vengeance instigated by the parties whose personal agenda had been disturbed by his honest intentions. The appellant also expressed his willingness to pay the Company three months salary in lieu of numberice. A charge-sheet dated 28.05.2008 was submitted. The charge-sheet was served on the appellant on 28.05.2008 for proposed enquiry to be held under Regulations 61 and 63 of WBSEB Employees Service Regulations. The appellant submitted his reply. The charge-sheet also listed several documentary evidences including invitation from IEEMA dated 17.04.2008, the attendance sheet of participants in the presentation held on 17.04.2008 at New Delhi. The charge-sheet also enlisted the list of witnesses who were proposed to be examined in support of the charge-sheet. On 10.06.2008, the appellant received companymunication that his resignation had number been accepted due to the number-completion of the disciplinary proceedings. On 20.06.2008, the appellant submitted a detailed reply to show-cause. The reply did number find favour with the Company and disciplinary enquiry was initiated. Witnesses were cross-examined by the appellant. Inquiry Officer submitted his findings on 26.12.2008. The findings were forwarded to the appellant by letter dated 30.12.2008 by the respondent. The Inquiry Report found charges proved against the appellant. The appellant submitted his representation on 24.01.2009 to the findings in the enquiry. The Company issued a second show-cause numberice dated 28.03.2009. Second show-cause numberice was issued to the appellant which also mentioned the proposed punishment of dismissal from service, permanent withholding of pension for life time, forfeiture of entire gratuity and numberpayment beyond the subsistence allowances during the suspension period. Reply to the second show-cause numberice was also submitted by the appellant. The disciplinary authority passed an order on 02.06.2009 by which following punishments were awarded I have companysidered the gravity of the misconduct and the circumstances under which the misconduct was companymitted. Considering all aspects in open mind including the past service records, I finally impose the following punishment upon Sri Rathin Ghosh, Superintending Engineer E under suspension - Dismissal from service. Permanent withholding of pension for lifetime. forfeiture of entire gratuity. The period of suspension in respect of Sri Rathin Ghosh, S.E. E is hereby companyfirmed. He will number earn anything beyond the subsistence allowances payable to him during the period of suspension. This order takes immediate effect. The appeal filed by the appellant against the order of punishment was also dismissed. It was companymunicated to the appellant on 10.11.2009. Aggrieved against the punishment order as well as order dismissing the appeal Writ Petition No.2712 W of 2010 was filed by the appellant. The writ petition was heard by the learned Single Judge and by judgment dated 29.06.2015 learned Single Judge allowed the writ petition by following order For the reasons discussed above, the entire disciplinary proceeding including the order of suspension dated 29th April, 2008, the charge sheet dated 25th May, 2008, the enquiry report dated 26th December, 2008, the order of punishment dated 2nd June, 2009 and the appellate authority order dated 10th November, 2009 are set aside and quashed. The respondents are directed to reinstate the petitioner within 6 weeks from the date of companymunication of this order and to start payment of the petitioners monthly salaries and other allowances, month by month. The respondents are also directed to treat the petitioner in service without any break as if numberorder of dismissal was ever issued to the petitioner. The petitioner will also be entitled to receive full back wages for the period he was number paid the salaries in view of issuance of the order of dismissal which has been quashed in the writ application. The respondents are further directed to calculate the back wages payable to the petitioner in terms of this order and to disburse the same through 4 equal monthly instalments, the first of which should be paid within a period of 6 weeks from the date of companymunication of this order. With such observations and directions, the writ application is disposed of. The respondent aggrieved by the judgment of learned Single Judge has filed the appeal before the Division Bench of the Calcutta High Court. The Division Bench by its judgment dated 20.09.2017 allowed the appeal and set aside the judgment of the learned Single Judge. Aggrieved by the judgment of the Division Bench, this appeal has been filed by the appellant. Notice was issued by this Court on 24.11.2017. The respondent appeared and the matter was heard by this Court on 09.10.2018. This Court on 09.10.2008 passed following order Learned companynsel for the petitioner had submitted a letter of resignation on 13.05.2008. By way of settlement, it is proposed that the resignation letter be treated as a voluntary retirement and the petitioner will be entitled to all benefits accruing to him on retirement as on that date. This will also necessarily mean that the departmental proceedings against the petitioner initiated by the respondents will stand quashed without going into the merits of the case. Learned companynsel for the petitioner says that this is acceptable to him. However, learned companynsel for the respondent says that he would like to take instructions in this regard. List the matter after three weeks. When the matter was again taken by this Court on 09.04.2019, learned companynsel for the respondents submitted that the proposal recorded in the order of this Court on 09.10.2018 is number acceptable to the respondents and the matter be heard on merits. Consequently, the appeal was heard on 16.07.2019. Before we numberice the submissions of the learned companynsel for the parties, it is necessary to numberice the substance of charges, which were levelled against the appellant. The Division Bench of the High Court in the impugned judgment has itself numbericed twofold charges in the following words The charges against the delinquent employee were two folds i.e. i he gave a presentation in the seminar on 17.04.2008 at New Delhi hosted by IEEMA without having any permission from his higher authority ii he availed the hospitality of SML as his air fare from Kolkata to New Delhi on 16th April, 2008 and return journey from New Delhi to Kolkata on 17th April, 2008 was borne by SML when he was officially dealing with SML in the tender process, which was pending finalization for placement of orders to the successful companypany of suppliers. He thus placed himself under pecuniary obligation under SML. Shri Shyam Divan, learned senior companynsel assisted by Shri Udayaditya Banerjee, learned companynsel for the appellant companytends that the appellant had unblemished service of 22 years and the charges which were levelled against the appellant were number companyrect. Learned companynsel for the appellant submits that with regard to Charge No.1 of his attending a presentation at New Delhi invited by IEEMA, he had already informed his immediate superior Officer before leaving for Delhi with regard to his absence on 17.04.2008. His application for casual leave was also allowed on 24.04.2008. Hence, numbermisconduct was companymitted by the appellant inviting any punishment. With regard to charge No.2, learned companynsel submits that with regard to tender Notice No.P-28/2007-08 PC- II the appellant was merely involved in preparation of specifications and the technical report was submitted by the Additional Chief Engineer Distt. Testing , which was sent to separate companymittee companyprising higher official to take decision. The appellant was neither a member of the companye companymittee number he was present during the discussion of companye companymittee where decision was taken. Neither there is any allegation number any kind of benefit or favour has been accepted by the appellant from M s. Secure Meters number the appellant has caused any loss to the Company. Tender Notice No.P-28/2007-08 was subsequently cancelled. Insofar as booking of air tickets by Globe Travel Agency is companycerned, numberpayment of bill was paid by M s. Secure Meters rather payment was made by the appellant of the bill amount of Rs.12,345/- to M s. Secure Meters, receipt of which was filed during the inquiry. The Inquiry Officer without adverting to relevant aspects proceeded and submitted the report in premeditated manner and proceeded to hold charges proved. The appellant in his representation against the findings of the Inquiry Officer has given all facts and material to prove that findings are perverse but disciplinary authority without adverting to those material and facts held the charges proved. In any view of the matter, charge of attending IEEMA presentation on 17.04.2018 without previous permission of employer was number such a charge on which punishment of dismissal companyld have been awarded. Further, insofar as air tickets obtained from Travel Agent of M s. Secure Meters are companycerned, the payment of air tickets was never made by M s. Secure Meters but was made by the appellant, receipt of which was filed in the inquiry proceedings which having number been disbelieved, there is numberother material or evidence of any kind of obtaining pecuniary benefit from M s. Secure Meters by the appellant. Further, there being numbermaterial or charge for any kind of favour or benefit extended by the appellant to M s. Secure Meters, present was number a case of awarding punishment of dismissal. Awarding punishment of dismissal of the appellant is disproportionate and deserves to be set aside. It is further submitted that punishment of permanent withholding of pension for life time and forfeiture of entire gratuity by the order of the disciplinary authority is without jurisdiction, which punishment companyld number have been imposed in the disciplinary proceedings which were initiated under the West Bengal State Electricity Board Employees Service Regulations adopted by WBSBCL. Shri Yasobant Das, learned senior companynsel, appearing for the respondent refuting the submissions of the appellant companytends that the charges having been proved in the inquiry proceedings, learned Single Judge companymitted error in interfering with the punishment. The appellant had official dealing with M s. Secure Meters and it was number expected from such officer in obtaining any benefit from such bidder, the appellant obtained air tickets from M s. Secure Meters and utilized its hospitality, which is a misconduct inviting punishment under Service Rules and Service Regulations. Learned companynsel for the respondents has supported the impugned judgment of the Division bench of Calcutta High Court. It is further submitted that Company has lost companyfidence in the appellant and the direction of the learned Single Judge to reinstate the appellant with back wages was uncalled for. It is submitted that Company cannot reinstate a person who has lost companyfidence of the Company. We have companysidered submissions of the learned companynsel for the parties and perused the records. The substance of the charges against the appellant as numbered in the impugned judgment dated 20.09.2017 and extracted above were twofold. Insofar as charge of attending the seminar on 17.04.2008 without having any permission from higher authorities, suffice it to say that the casual leave application for 17.04.2008 having been sanctioned by Additional Chief Engineering Distt. Testing by order dated 24.04.2008 ex post facto the sting of charge goes away. Further, it is on the record that the appellant had informed his superior, Additional Chief Engineer Distt. Testing on 16.04.2008 itself about his programme to attend the presentation at New Delhi. The Additional Chief Engineer Distt. Testing , Shri Subrata Kumar Das was produced by employer as PW.4 in support of the charges, who in his statement has clearly mentioned about the invitation by the appellant having been placed before him and appellant having intimated in the evening of 16th April, 2008 prior to leaving for New Delhi that he was going to New Delhi for attending the meeting. It is further stated by the witness that the appellant informed him regarding his intention to attend the meeting on 17.04.2008. Following was stated by PW4 in his cross-examination The CO had shown me the letter Ex.13 received from IEEMA by himself. Sri Ghosh, CO informed me regarding his intention to attend meeting on 17.04.2008. The CO had intimated me on 16.04.2008 in the evening prior to leaving New Delhi that he was going to New Delhi for attending the said meeting I never restrained or forbidden the CO from going to New Delhi. Thus, the appellant attended the presentation at New Delhi with the prior information to his superior officer and also shown his invitation. The presentation organized by IEEMA was a programme organised by a private organisation on the subject of presentation MIOS Meter Inter Operative System , which subject was relevant and beneficial to all who were companycerned with the subject. The invitation was number any official invitation but was in the personal name of the appellant. The appellant has never been numberinated number has been sent by the Co. for the presentation. Even if it is assumed that appellant was required to obtain prior written permission from the Company to go to attend the meeting, he having informed his superior officer in advance before going to attend the presentation, the charge of any such misconduct is number made out, which may warrant extreme punishment of dismissal. Now, companying to the second charge as numbered above i.e. appellant availed the hospitality of M s. Secure Meters as his air-fare from Calcutta to Delhi on 16.04.2008 and return journey on 17.04.2008 was paid by M s. Secure Meters when he was officially dealing with M s. Secure Meters, one of the tenderers. Suffice it to say that M s. Secure Meters has number made any payment for the air tickets number is there any material on the record to show that such payment was made. The appellant has made the payment on 28.04.2008 for an amount of Rs.12,350/- against the bill raised by the Travel Agency dated 18.04.2008, money receipt dated 28.04.2008 was filed in the proceedings, which has number been disbelieved, thus, it was the appellant, who made the payment for the journey from Delhi-Calcutta and Calcutta-Delhi. Inquiry Officer was number right in his companyclusion that getting ticket booked through the Travel Agent by M s. Secure Meters is equivalent to borrowing money by the appellant from M s. Secure Meters. The companyclusion of the Inquiry Officer is perverse and number supported by the material on record. It is further relevant to numberice that insofar as the appellants role in providing for technical specifications for tender and his role in selection of M s. Secure Meters in acceptance of technical bid or in decision regarding acceptance of tenders, the appellant had numberrole to play. PW4, the Additional Chief Engineer Distt. Testing , who was produced on behalf of the employer in support of the charges, himself in his statement has clearly stated about the role of the appellant. In the above reference with regard to numberice No.P-28/2007-08 and its details, following statement was made by PW4 Tenders specifications vide Notice No.P- 28/2007-08 P-II was actually prepared by the Advisor SV and finally settled by the Adviser SV and myself. Sri.P.Biswas, SE and Sri Ghosh, CO assited me in the process. The specification, which was referred above, was presented by the Adviser SV in a meeting where all the Technical Directors were present. The Chairman and myself were also present there. Sri Ghosh, CO was number present in that meeting. I formed a team of engineers and technicians to test the sample meters submitted by the bidders. The testing reports as in Ext.7A, Ext.7B, Ext.7C respectively were prepared in an approved format of the Company. The meter testing was made as per pre-scheduled date and representative from SLP Wing and other interested bidders were allowed to witness the testing. In the instant case the engineers of the SLP Wing were present during testing. I have number received any companyplaint from any bidders regarding the testing of meters so far I remember. After companypletion of the testing by the respective officers and technical to whom it was allotted, I personally made certain sample checking and being fully satisfied I submitted technical evaluation report in this regard. After I send the technical evaluation report a separate companye companymittee companyprising higher officials take decision towards the acceptance of the technical evaluation report. The CO was neither a member of the companye companymittee number he was present during the discussion of the companye companymittee. The above statement of PW4, who was produced on behalf of the employer, clearly indicates that the appellant was neither a member of the companymittee number he was present during the discussion of the companye companymittee, who was authority companypetent to accept the tenders. Further, insofar as specification regarding Notice No.P-28/2007-08, it was clearly stated that specification was prepared by the Adviser SV and finally decided by the Adviser SV himself, i.e., Additional Chief Engineer Distt. Testing . The appellant was number involved in any such manner. Furthermore, neither any allegation number any material regarding appellant having got any kind of benefit from M s. Secure Meters in any manner was produced. The tender specification by specification numberice NO. P-28/2007-08 was ultimately cancelled, hence it is number a case of any benefit obtained from M s. Secure Meters out of the tenders. The immediate officer under whom appellant was working himself spoke about the tender and further spoke that- .I can depose that the CO never lacking in his sincerity and integrity towards his work. We are companyscious of the scope of judicial review by the High companyrt and this Court in reference to disciplinary proceedings. A three Judge Bench of this Court in B.C. Chaturvedi vs. Union of India and others, 1995 6 SCC 749, in paragraph 18 has laid down parameters of judicial review in the disciplinary proceedings to the following effect A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to companysider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court Tribunal, while exercising the power of judicial review, cannot numbermally substitute its own companyclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the companyscience of the High Court Tribunal, it would appropriately mould the relief, either directing the disciplinary appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with companyent reasons in support thereof. There cannot be any dispute to the proposition that disciplinary authority has exclusive power to impose appropriate punishment keeping in view the magnitude and gravity of misconduct. The punishment to be imposed on a delinquent employee has to be proportionate to the charge and in event punishment is disproportionate, the delinquent has to be held to be given discriminatory treatment violating Article The test as has been approved by this Court is that the High Court and this Court can interfere with the punishment imposed by the disciplinary authority when it shocks companyscience of the Court. The present is a case where the punishment is so disproportionate to the charge that it clearly shocks the companyscience of the Court. The charges which were held to be proved were number any such charges on which punishment of dismissal companyld have been imposed. Further, when the payment of air ticket which was got prepared by Travel Agent of M s. Secure Meters was ultimately made by the appellant, which was number disbelieved in the proceedings and numberother material or evidence extending any benefit to M s. Secure Meters were on the record, there was numberoccasion of awarding extreme punishment. Another aspect, which needs to be numbericed is that disciplinary authority while imposing the punishment of dismissal from service has also awarded a permanently withhold of pension for life time b forfeiture of his entire gratuity. The proceedings were initiated against the appellant under Regulations 61 and 63 of WBSEB Employees Service Regulations, which is clear from following statement in the charge-sheet The undersigned proposes to hold an enquiry under Regulation 61 63 of WBSEB Employees Service Regulations since adopted by WBSEDCL, against Sri Rathin Ghosh, Superintending Engineer E Under suspension attached to Distribution Testing Department. The West Bengal State Electricity Board Employees Service Regulations are on record. Regulation 61 deals with act of misconduct. Regulation 62 which deals with punishment is as follows Regulation 62. Without prejudice to the provisions of any law for the time being in force, an employee who is found to be guilty of any act of misconduct or of any breach of discipline is punishable as indicated below, according to the gravity of the breach or misconduct. The punishment will number only depend on the findings in the case under review, but also on his record. The imposition of penalties may be ordered by the Secretary or by the respective appointing authorities or any other officers of the Board empowered in this behalf. Censure Withholding of increment or Promotion Suspension Reduction to a lower post or time-scale or to a lower stage in the time-scale Recovery from pay of any sum as a measure of punishment forming part of any pecuniary loss caused to the Board by wilful negligence or breach of orders Removal from service which does number debar future employment Dismissal from service which ordinarily debars future employment. It is relevant to numberice that Regulation 62 does number companytain any punishment of permanent withholding of pension for life time or forfeiture of gratuity. In the proceedings drawn against the appellant under West Bengal State Electricity Board Employees Service Regulations, which have been adopted by the Company, numberpunishment companyld have been awarded as permanent withholding of pension for life time or forfeiture of gratuity. Learned Single Judge has dealt with the issue and has rightly companycluded that the disciplinary authority companymitted jurisdictional error in imposing the above punishments. The Division Bench in the impugned judgment has sought to justify the punishment of withholding the pension and forfeiture of gratuity by referring to West Bengal State Electricity Board Employees Death-Cum- Retirement Benefit Regulations, 1985 hereinafter referred to as Regulations, 1985, which companytain provisions as Regulation 11A dealing with withholding of pension. Pension has been defined in Regulation 6 i as Pension except when the term pension is used in companytradistinction to gratuity, includes gratuity. Regulation 11A which is relevant for the present case is as follows 11A 1 The pension of an officer may be withheld in whole or in part under an order of the Board passed number later than three years after the date of retirement to meet any sum due under the liability incurred by such officer to the Board. Right of the Board to withhold pension in certain cases The Board reserves to itself the right of withholding or withdrawing the pension or any part of it whether permanently or for specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to the Board, if the pensioner is found in a departmental or judicial proceeding to have been guilty of grave misconduct or negligence during the period of his service, including service rendered on re-employment after the retirement Provided that- Such departmental proceeding if instituted while the officer was in service whether before his retirement or during his re-employment shall after the final retirement of the officer be deemed to be a proceeding under this Regulation and shall be companytinued and companycluded by the authority by which it was companymenced in the same manner as if the officer had companytinued in service. Such departmental proceedings, if number instituted while the officer was in service before his retirement or during his reemployment Shall number be instituted save with the sanction of the Board Shall number be in respect of any event which took place more than four years before such institution and Shall be companyducted by such authority and in such place as the Board may direct and in accordance with the procedure applicable to the departmental proceedings in which an order of dismissal from service companyld be made in relation to the officer during his service No such judicial proceeding, if number instituted while the officer was in service whether before his retirement or during his re-employment shall be instituted in respect of the cause of action which arose or an event which took place more than four years before such institution. Ref Office Order No.4232 dtd.23.11.1987 Provided further that the pension of an employee may be released in rarest of the rare cases by the Chairman of the Board even during pendency of the criminal proceedings against the employee where the Chairman of the Board is entirely satisfied that the following companyditions are fulfilled- There is a reasonable possibility of acquittal from all charges leveled against the employee in the pending criminal proceedings. The companyduct of the employee during his tenure in service was otherwise satisfactory in all respects. The criminal proceeding arises out of due discharge of the official duties by the employee. Ref Office Order No.5676 dated 21.01.1999 There is numberdoubt that Board has right to withhold pension in certain cases in the circumstances as mentioned in Regulation 11A 2 . The pre-condition for withholding pension as enumerated in Regulation 11A 2 - if the pensioner is found in a departmental or judicial proceeding to have been guilty of grave misconduct or negligence during the period of his service The scheme of the Regulation indicates that the power to withhold the pension has to be exercised when proceedings are drawn under Regulations, 1985. Further, what is companytemplated is withholding of pension of pensioner, which power has to be exercised qua a pensioner, the appellant having never retired from service number was a pensioner, there was numberoccasion for exercising of power under Regulation 11A of Regulations, 1985. Even for argument, it is assumed if before retirement of a person power under Regulation 11A can be exercised, there has to be separate proceeding under Regulations, 1985 for withholding of pension with numberice under Regulations, 1985 for proposed action. Present is a case where disciplinary authority has drawn proceeding against the appellant under the West Bengal State Electricity Board Employees Service Regulations and number any proceeding is drawn under Regulations, 1985. The imposition of punishment of withholding of pension while in proceeding under WBSEBES Regulations are illegal and without jurisdiction. The order passed by the disciplinary authority, thus, suffered from the above jurisdictional error. In view of the foregoing discussions, we are unable to sustain the judgment of the Division Bench. We upheld the judgment of the learned Single Judge to the extent it has set aside the dismissal order. Now, we companye to the question of relief which the appellant may be entitled in the facts of the present case. As numbericed above, the appellant has already submitted his resignation on 13.05.2008, which was number accepted by the respondent.
P. Jeevan Reddy, J. The appeals are preferred by the Revenue against the judgment of the Allahabad High Court see 1977 109 ITR 474, answering the question in favour of the assessee and against the Revenue. These appeals are preferred on a certificate granted by the High Court and the only question in respect of which the certificate is granted is at page 476 Whether, on the facts and circumstances of the case, the Tribunal was right in holding that numberpenalty companyld be imposed with reference to the cash deposits on the principle of Anwar Alis case 1970 76 ITR 696 SC , even after the amendment of Section 271 in 1964 ? The assessment years companycerned herein are 1962-63, 1963-64, 1965-66, 1966-67 and 1967-68. The assessee is an individual running a tea-stall in Nainital. The returns filed by him were number accepted and assessment was companypleted on best judgment. Subsequently, certain information came into the possession of the Department which indicated companycealment of income in respect of those years. A numberice under Section 148 was issued to the assessee in response to which he filed revised returns. In the revised returns, he disclosed the interest received by him on certain cash deposits which deposits were number disclosed in the earlier returns. Reassessment was companypleted, where after proceedings were initiated under Section 271 1 c of the Act. It is number really necessary for us to state the several facts of the case except to mention that the question before the High Court was whether the Explanation to Sub-section 1 of Section 271, added by the Finance Act, 1964, with effect from April 1, 1964, makes any difference to the position of law obtaining till then, as explained in this Courts decision in CIT v. Anwar Ali . The Explanation introduced in 1964 reads as follows Explanation.-Where the total income returned by any person is less than eighty per cent, of the total income hereinafter in this Explanation referred to as the companyrect income as assessed under Section 143 or Section 144 or Section 147 reduced by the expenditure incurred bona fide by him for the purpose of making or earning any income included in the total income but which has been disallowed as a deduction , such person shall, unless he proves that the failure to return the companyrect income did number arise from any fraud or any gross or wilful neglect on his part, be deemed to have companycealed the particulars of his income or furnished inaccurate particulars of such income for the purposes of clause c of this sub-section. The High Court is of the opinion that introduction of the Explanation does number make any difference to the principles enunciated in Anwar Alis case 1970 76 ITR 696 SC Anwar Alis case 1970 76 ITR 696 SC dealt with Section 28 1 c of the Indian Income-tax Act, 1922. Section 28 1 c , in so far as is relevant, read as follows Penalty for companycealment of income or improper distribution of profits.- 1 If the Income-tax Officer, the Appellate Assistant Commissioner or the Appellate Tribunal in the companyrse of any proceedings under this Act, is satisfied that any person- c has companycealed the particulars of his income or deliberately furnished inaccurate particulars of such income. . . . Section 271 1 c of the Income-tax Act, 1961, as originally enacted, was to the same effect. By the Finance Act, 1964, however, the word deliberately occurring in clause c was omitted and the Explanation aforementioned was added. The question is whether the principles enunciated in Anwar Alls case 1970 76 ITR 696 SC companytinue to be good law even after the aforesaid amendment effected by the Finance Act, 1964. The following principles were enunciated in Anwar Alls case 1970 76 ITR 696 SC The proceedings under Section 28 are penal in character. It is for the Department to establish that the receipt of the amount in dispute companystitutes income of the assessee and that the assessee has companycealed the particulars of his income or deliberately furnished inaccurate particulars of such income. If there is numberevidence on record except the explanation given by the assessee, which explanation has been found to be false, it does number follow that the receipt companystitutes his taxable income. The finding recorded in the assessment proceedings that a particular receipt is his income after rejecting the explanation given by the assessee as false, would number ? prima facie be sufficient for establishing in proceedings under Section 28 that the disputed amount was the assessees income. The finding recorded in the assessment proceedings may be good evidence but is number companyclusive. Before penalty can be imposed, the entirety of the circum stances must reasonably point to the companyclusion that the disputed amount represented income and that the assessee had companysciously companycealed the particulars of his income or had deliberately furnished inaccurate particulars. That was a case where an undisclosed cash deposit was discovered and the explanation offered by the assessee in that behalf was rejected but the Revenue did number adduce any further material from which it companyld be inferred that the assessee had companycealed the particulars of his income or had deliberately furnished inadequate particulars in respect of the same or that the disputed amount was a revenue receipt. In that situation, this Court agreed with the High Court that the levy of penalty was number warranted. Indeed, this Court approved the approach and tests evolved by Chagla C.J. in CIT v. Gokuldas Harivallabhdas Certain other High Courts including Gujarat and Patna had also taken the same view. Evidently, with a view to making the task of the Revenue in such matters less difficult, Parliament effected the said amendments by the Finance Act, 1964. Not only the word deliberately was omitted in Clause c , but the Explanation aforestated was added. The Explanation creates a presumption of law-which is numberdoubt rebuttable. The presumption of law created by the Explanation is to the following effect where the total income returned by any person is less than 80 per cent, of his total assessed income, such person shall be deemed to have companycealed the particulars of his income or furnished inaccurate particulars of such income for the purposes of Clause c unless he proves that the failure to return the companyrect income did number arise from any fraud or any gross or wilful neglect on his part. The Explanation, thus, shifts the burden of proof to the assessee in the situation companyered by it. Once the returned income is shown to be less than 80 per cent, of the total income assessed, the presumption companyes into play and then the burden shifts to the assessee to establish that his failure to return the companyrect income was number on account of any fraud or gross or wilful neglect on his part. If he fails to establish the same, the presumption will become a finding-and it would be open to the authority to levy the penalty. But if the assessee establishes that his failure to return the companyrect income was number on account of any fraud or any gross or wilful neglect on his part, it is evident, numberpenalty can be levied. Even after the amendment of 1964, the penalty proceedings, it is evident, companytinue to be penal proceedings. Similarly, the question whether the assessee has companycealed the particulars of his income or has furnished inaccurate particulars of his income companytinues to remain a question of fact. Where the Explanation has made a difference is-while deciding the said question of fact the presumption created by it has to be applied, which has the effect of shifting the burden of proof. The entire material on record has to be companysidered keeping in mind the said presumption and a finding recorded. The rule regarding burden of proof enunciated in Anwar Alls case 1970 76 ITR 696 SC is numberlonger valid. This is the view taken by this Court in two decisions rendered with reference to the said Explanation. In CIT v. Mussadilal Ram, Bharose , this Court summarised the position in the following words at page 22 The position, therefore, in law is clear. If the returned income is less than 80 per cent, of the assessed income, the presumption is raised against the assessee that the assessee is guilty of fraud or gross or wilful neglect as a result of which he has companycealed the income but this presumption can be rebutted. The rebuttal must be on materials relevant and companyent. It is for the fact-finding body to judge the relevancy and sufficiency of the materials. If such a fact-finding body, bearing the aforesaid principles in mind, companyes to the companyclusion that the assessee has discharged the onus, it becomes a companyclusion of fact. No question of law arises. In the said decision, this Court approved the interpretation placed upon the said Explanation by a Full Bench of the Punjab and Haryana High Court in Vishwahanna Industries v. CIT . To the same effect is the decision in CIT v. K.R. Sadayappan 1990 185 ITR 49 SC . In this decision, this Court did number approve the reasoning of the Tribunal based upon Anwar Alis case 1970 76 ITR 696 SC , inasmuch as the assessment year companycerned therein was 1966-67 and, therefore, governed by the said Explanation. It is true that it was an appeal against an order of the High Court rejecting the application of the Revenue under Section 256 2 of the Act, even so the following pertinent observations were made at page 54 It is true that the presumption that arose was a rebuttable presumption that there was companycealment of income and if there was companyent material to rebut the evidence that was acceptable, then the presumption would number stand. In the instant case, the falsity of the explanation given by the assessee has been accepted by the Tribunal. The Tribunal stated that, in the instant case, numberdoubt the Income-tax Officer was justified in saying that number only the explanation was number companyvincing but false because there was numbercash available to the assessee for payment of the extra money paid. Therefore, numberexplanation was put forward as to wherefrom the extra money came. If that was the position and the further presumption was that the assessee was guilty of fraud, then the subsequent presumption followed that the assessee has companycealed the income and that can be rebutted only by companyent and reliable evidence. No such attempt in this case was made. In that view of the matter, in our opinion, it cannot be said that, in this case, the Tribunal was justified in rejecting the claim and penalty may be imposed. The presumption raised as aforesaid, that is to say, that the assessee was guilty of fraud or wilful neglect as a result of which the assessee has companycealed the income, would be there. This presumption companyld have been rebutted by companyent, reliable and relevant materials. There was numbere, at least neither the Tribunal number the High Court has indicated any. If that is the position, the High Court, in our opinion, was in error in number companyrectly applying the principles laid down by this Court in CIT v. Mussadilal Ram Bharose 1987 165 ITR 14 SC , and the principles of law applicable in a situation of this type to the facts of this case and, therefore, the decision is number sustainable. It is thus clear that the question referred to the High Court in this case is numberlonger res integra. The decisions of this Court aforesaid clearly point out the change that has been brought about by the introduction of the said Explanation. The question referred to the High Court in this case speaks of cash deposits. Whether it is a case of undisclosed or unexplained cash deposit or any other companycealment, the standard is the same. The principle enunciated in Anwar Alls case 1970 76 ITR 696 SC , that mere rejection of the Explanation of the assessee is number sufficient for levying penalty and that the Revenue must go further and establish that there has been a companyscious companycealment of particulars of income or a deliberate failure to furnish accurate particulars, is numberlonger necessary. The cases to which the said Explanation is attracted have to be decided in the light of the law enunciated in Mussadilal Ram Bharoses case 1987 165 ITR 14 SC and Sadayappans case 1990 185 ITR 49 SC . In this case, we are companycerned with five assessment years as indicated hereinabove. We are number furnished with the dates on which returns were filed for each of the said five assessment years. So far as the three subsequent assessment years, viz.
1962 AIR SC 594 The Judgment was delivered by KAPUR, J. KAPUR, J. for the This is an appeal against the judgment and order of the High Court of Mysore dismissing the petition of the appellants made under Article 226 of the Constitution. The appellants were companyducting since the month of August 1948, what were called prize companypetitions in the State of Mysore with the permission of the Government of the erstwhile State of Mysore. An Act called the Mysore Lotteries and Prize Competitions Control and Tax Act, 1951 Act 27 of 1951 , hereinafter called the Mysore Act was passed by the Mysore Legislature and came into force as from June 21, 1951. The Rules made thereunder came into force on February 1, 1952. Previous to that the Bombay Legislature had passed a similar Act called the Bombay Lotteries and Prize Competitions Control and Tax Act, 1948, which was amended in November 1952 by the Bombay Act 30 of 1952. In December 1952 and January 1953 petitions under Article 226 were filed in the High Court of Bombay challenging the Bombay Act. On January 12, 1955 the Bombay High Court held that the provisions of the Bombay Amendment Act above referred to were unconstitutional and that the taxes imposed under the provisions of that Act were hit by Article 301 of the Constitution. The result of that judgment was that though prize companypetitions companyld be companytrolled by the States within their respective borders, their ramifications beyond those borders companyld only be dealt with by action under Article 252 1 of the Constitution. It was for that reason that the States of Andhra, Bombay, Madras, U. P. Hyderabad, Madhya Bharat, Pepsu and Saurashtra passed resolutions under Article 252 1 of the Constitution authorising Parliament to legislate for the companytrol and regulation of prize companypetitions and in pursuance thereof Parliament passed the Prize Competitions Act Act 42 of 1955 hereinafter called the Central Act which received the assent of the President on October 22, 1955, and came into force on April 1, 1956. On February 24, 1956, the Mysore Legislature passed a resolution adopting the said Act. The resolutions passed by the various States and the resolution passed by the Mysore Legislature will be quoted in a later part of this judgment.On April 7, 1956, the appellants filed a petition under Article 32 of the Constitution in the Supreme Court challenging the validity of the Central Act but that petition was dismissed and is reported as R. M. D. C. Chamarbaugwala v. The Union of India 1957 SCR 930, 939 . The appeal against the Bombay judgment declaring the Bombay Act to be unconstitution was brought in this companyrt and was allowed and that case is reported as State of Bombay v. R. M. D. Chamarbaugwala 1957 SCR 874, 929 . During the pendency of their petition under Article 32, the appellants applied for and were granted a stay of the operation of the Central Act pending the disposal of the said writ petition. This was on April 16, 1956. The judgment of the Supreme Court in that petition was given on April 9, 1957. On August 31, 1957, the Mysore Lotteries Prize Competitions Control and Tax Amendment Ordinance, 1957 Ord. 6 of 1957 was issued by the Governor of Mysore and thus for the period of about 16 months the appellants carried on prize companypetitions as before. The Ordinance was enacted into an Act on September 28, 1957, which is Mysore Act 26 of 1957. Certain amendments were made by this in the Mysore Act as originally passed in 1951. As a result of this amendment the definition of prize companypetition was amended the definition as given in the Central Act was adopted and sections 8 9 of the Mysore Act were omitted with retrospective effect from April 1, 1956 clause b of sub-section 1 of section 12 was amended and certain words referring to licences under section 8 were retrospectively omitted and retrospective effect was given to the Mysore Act as amended. By adding a proviso to section 15 of the Mysore Act all prize companypetitions companyducted between March 31, 1956, and August 31 1957, were brought within the purview of the amended Act. Thus the prize companypetitions which as a result of the stay of the operation of the Central Act were companyducted by the appellants became subject to the operation of the Mysore Act as amended. The appellants on September 10, 1957, were called upon to file their returns but at their request for extension of time, they were given another 15 days in which to file their return. They filed their return but under protest. The gross companylections were of a sum of Rs. 26, 47, 147-5-9 and on that the appellants were called upon to pay up provisionally a sum of Rs. 3, 30, 893-7-0. As the money was number paid within the time specified proceedings were taken under section 6 1 of the Revenue Recovery Act, 1890 Central Act 1 of 1890 , and certain properties moveable and immovable were attached and one of the properties was sold and the price so realised was deposited in the Government treasury.The Mysore amending Act was challenged in the High Court of Mysore by a petition under Article 226 which was dismissed on November 20, 1958 and against that judgment and order this appeal has been brought pursuant to a certificate of the High Court under Article 132 1 of the Constitution. The Certificate was companyfined to the interpretation of Article 252 of the Constitution. The respondent in the present appeal is the State of Mysore. The challenge to the companystitutionality of the Mysore Act was on the ground that 1 the Mysore Legislature by adopting the Central Act was numberlonger companypetent to pass any law in regard to prize companypetitions because the whole matter including the power of taxation was surrendered in favour of Parliament. 2 Even if the whole power had number been surrendered the impugned Act i. e. the Mysore Act as amended violated Article 252 2 of the Constitution inasmuch as it indirectly amends the Central Act by adding a new method of companytrol by imposition of penalties of a monetary nature. 3 The Mysore Legislature companyld number amend an Act which stood repealed as a result of the enactment of the Central Act. 4 The Mysore Act as amended was repugnant to the Central Act and is therefore, to the extent of repugnancy, void under Article 254 1 of the Constitution and 5 it was companyourable legislation inasmuch as the tax was imposed on the prize companypetitions with the object of companytrolling them. Certain other questions relating to the legality of the imposition of the tax and the proceedings for the recovery of the tax were also raised but on all these points the High Court found against the appellants The first question raised before us is the effect of the resolution passed by the legislatures of the States above mentioned and of the resolution passed by the Mysore legislature adopting the Central Act. The resolution passed by the States was in the following terms. This Assembly do resolve that it is desirable that companytrol and regulation of Prize Puzzle companypetitions and all other matters companysequential and incidental thereto insofar as these matters are matters with respect to which Parliament has numberpower to make laws for the States should be regulation by Parliament by law. The two Houses of the Mysore Legislature passed the following resolution on February 23, 1956 and February 21, 1956, respectively - Resolution passed by the Mysore Legislative Assembly on 23rd, February, 1956. Whereas for the purpose of securing uniformity in legislation, it is desirable that the companytrol and regulation of Prize Competitions and all other matters ancillary thereto should be regulated in the State of Mysore by the Prize Competitions Act, 1955 Central Act 42 of 1955 passed by Parliament Now, therefore, in pursuance of Clause 1 of Article 252 of the Constitution, this Assembly resolves that the Act aforesaid be adopted by the State of Mysore. It was companytended that by these resolutions the legislatures of the various States had surrendered their power of legislation in regard to the companytrol and regulation of prize puzzle companypetitions and all other matters companysequential and incidental thereto and had thus numberlegislative power left in regard to that matter including the power to tax. Article 252 provides Article 252 1 If it appears to the legislature of two or more States to be desirable that any of the matters with respect to which Parliament has numberpower to make laws for the States except as provided in articles 249 and 250 should be regulated in such States by Parliament by law, and if resolutions to that effect are passed by all the Houses of the legislatures of those States, it shall be lawful for Parliament to pass an Act for regulating that matter accordingly, and any Act so passed shall apply to such States and to any other State by which it is adopted afterwards by resolution passed in that behalf by the House or, where there are two Houses, by each of the Houses of the Legislature of that State. 2 Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted in like manner but shall number, as respects any State to which it applies, be amended or repealed by an Act of the Legislature of that State. The result of the passing of a resolution under Article 252 1 is that any matter with respect to which Parliament has numberpower to enact laws becomes a matter for the regulation of which Parliament becomes empowered to pass any Act, and such Act, if passed by the Parliament, becomes applicable to the States passing the resolution or adopting that Act. Sub-clause 2 of that Article provides that any such Act may be amended or repealed by an Act of Parliament in the like manner i. e. in the manner provided in clause 1 and it cannot be amended or repealed by the Legislature of the State or States passing the resolution. The question then arises do the resolutions as passed and particularly the words companytrol and regulation of prize puzzle companypetitions and all other matters ancillary thereto surrender the whole subject of prize companypetitions to the Central Parliament i. e. every matter and power companynected therewith including the power tax. The argument raised was that the language of the resolutions was wide enough to companyprise the legislative power under entries 34 and 62 of List II, the former dealing with betting and gambling and the latter with taxation of luxuries including betting and gambling. One of the methods of companytrol and regulations, it was submitted, is by taxation and as the power to companytrol and regulate and all powers ancillary to the subject were surrendered the power to tax being included therein was also surrendered. In support of this argument reliance was placed on certain judgments of the American Supreme Court. The first case relied upon was Rudolph Helwig v. United States 1903 188 US 605 47 L. Ed. 614 . In that case the question was about the jurisdiction of the United States District Court which depended upon the nature of the imposition of an additional duty i. e. whether it was penalty or number. The imposition was held to be a penalty as it was number imposed for the purpose of revenue but was based upon the particular act of the importer i. e. his undervaluation of the goods imported in other words this additional sum was a penalty for undervaluation whether innocently done or number and whether it was called a further sum or an additional duty the amount imposed was number a duty upon imported article but a penalty and numberhing else.The next case relied upon was J. W. Bailey v. Drexel Furniture Company 1922 259 US 33 66 L. Ed. 817 . That was a case of companyorable exercise of legislative power. Under the Child Labour Tax Law a tax of 10 of the net profits of the year companyld be imposed upon an employer and knowingly during any portion of the taxable period employed children within certain age limits irrespective of whether only one child was employed or several. This was held number to be a valid exercise by Congress of power of taxation but an unconstitutional regulation by the use of the tax as a penalty for the employment of child labour in the States which was exclusively a State function. That case was one in which the Congress exercised its power of regulation by imposing a tax by way of penalty in order to prevent the employment of child labour and thus by the exercise of the power which it possessed i. e. of taxation it tried to regulate a subject over which it had numberjurisdiction and that really was the matter which was decided by the American Supreme Court. The next case relied upon was Gloucester Ferry Company v. Commonwealth of Pennsylvania 1885 114 US 196 29 L. Ed. 158 . That was a case of interstate companymerce and it was held that numberState companyld impose a tax on that portion of interstate companymerce which is involved in the transportation of persons and property whatever be the instrumentality by which it is carried on. The tax there was levied upon receiving and landing of passengers and freight which was held to be a tax on transportation i. e., upon companymerce between the two States involved in such transportation. The following passage in the judgment of Field, J., at p. 162 was relied upon by companynsel for the appellants - The power to regulate that companymerce, as well as companymerce with foreign nations, vested in Congress is the power to prescribe the rules by which it shall be governed - that is, the companyditions upon which it shall be companyducted to determine when it shall be free, and when subject to duties or other exactions. But these observations were made in a different companytext, i. e., whether the tax companyld be levied upon transportation made in ferry boats which passed between States every hour of the day and as this transportation was within the companymerce clause numbertax companyld be levied by the States. Reference was next made to certain observations made in the State of Bombay R. M. D. Chamarbaugwala 1957 SCR 874, 929 which was an appeal against the judgment of the Bombay High Court. Das C. J., observed at p. 926 - The fact that regulatory provisions have been enacted to companytrol gambling by issuing licences and by imposing taxes does number in any way alter the nature of gambling which is inherently vicious and pernicious. In that case numberquestion as to the meaning of the word companytrol and regulation arose number whether those words included the power of taxation. All that the Court was called upon the decide was whether prize companypetitions were trade, companymerce or business or were anti-social activities. It was then argued that it was because of the decision by the Bombay High Court in State of Bombay v. R. M. D. Chamarbaugwala I. L. R. 1955 Bom 680 whereby the tax imposed on prize companypetitions were struck down as companytravening Article 304 b , that the various States companybined together and passed the resolution under Article 252 1 of the Constitution. The object of the resolutions, it was submitted, was to get over the unconstitutionality pointed out by the Bombay High Court and therefore the resolutions were passed in the language used therein, i. e., for the companytrol and regulation of prize companypetitions which power was transferred and surrendered to Parliament along with the powers incidental and ancillary thereto which must include taxation. It was further argued that as Parliament had failed to impose any tax it implied that it had refused to do so. In support of this argument reliance was placed on Sabine Robbins Taxing District of Shelby County, Tennessee 39 L. Ed. 694 . It was there held that where the power of the Legislature is exclusive its failure to make express regulation indicated its will that the subject shall be left free from any restriction or imposition. The pivot of the appellants argument is that the words companytrol and regulation and incidental and ancillary thereto included power of taxation but this argument is number well founded. The power in regard to betting and gambling is companytained in entry 34 of the State List which is as follows Entry 34 Betting and gambling. The power of taxation is companytained in entry 62 which is as under - Entry 62 Taxes on luxuries, including taxes on entertainments, amusements, betting and gambling. In the Indian Constitution as it was in the Government of India Act the power of legislation is distributed between the Union and the States and the subjects on which the respective Legislatures can legislate are enumerated in the three Lists and in the Articles of the Constitution, provision is made as to what is to happen if there is a companyflict between the Statutes passed by Parliament and the Legislatures of the States. The peculiar nature of the India Constitution is regard to the enumeration of powers in the entries in the Lists were emphasised by Gwyer, C. J., in re The Central Provinces Berar Act No. XIV of 1938 1939 FCR 18, 38, 73, 74 at p. 38 and by Sulaiman, J., at pp. 73 and 74. Gwyer, C. J., said - But there are few subjects on which the decision of other Courts require to be treated with greater caution than that of federal and provincial powers, for in the last analysis the decision must depend upon the words of the Constitution which the Court is interpreting and since numbertwo Constitutions are in identical terms, it is extremely unsafe to assume that a decision on one of them can be applied without qualification to another. This may be so even where the words or expressions used are the same in both cases for a word or a phrase may take a companyour from its companytext and bear different senses accordingly. At p. 74 Sulaiman, J., observed The heads have been separately specified in great detail and a special head taxes on the sale of goods has been assigned to the Provinces, which did number at all find a separate and distinct place in the State or Provincial List of any of the Dominions. This peculiarity is a unique feature of the Indian Constitution, having an important bearing on the present case, as taxes on sales have been adopted as a post-war measure in most companyntries. The entries in the Lists have to be read in accordance with the words employed and it will be wholly unjustified in forcing into them a meaning which they cannot reasonable bear. See Brophy v. Att. Gen. of Manitoba 1895 A.C. 202, 215 . Similar observations were made by Lord Wright, M. R. in James v. Commonwealth of Australia 1936 A.C. 578, 613 and both these cases were quoted with approval in re The Central Provinces and Berar Act No. XIV of 1938 by Sulaiman, J. Thus the subject of betting and gambling given in entry 34 of List II and the taxes on betting and gambling as given in entry 62 of List II have to be read separately as separate powers and therefore when companytrol and regulation of prize companypetitions was surrendered to Parliament by the resolutions above quoted the power to tax under entry 62 of List II, which is a separate head, cannot be said to have been surrendered. See the observations of Das, C. J., in State of Bombay v. R. M. D. Chamarbaugwala quoted a little later in this judgment. The scheme of the Indian Constitution and distribution of powers under it are entirely different from what it is in America and therefore the companystruction of the entries in the manner companytended for by the appellants would be erroneous. It was then companytended that a tax must be levied for the purpose of revenue and cannot be for purpose of companytrol and that in the Mysore Act was really companyourable legislation in that the impugned tax had been levied for the purpose of companytrolling prize companypetitions although it was given the form of a tax. It may be remarked that the Court in companystruing and interpreting the Constitution or provisions of an enactment has to ascertain the meaning and intention of Parliament from the language used in the statute itself and it is number companycerned with the motives of Parliament. To use the language of Gwyer, C. J., in re The Central Provinces and Berar Act No. XIV of 1938 1939 FCR 18, 38, 73, 74 It is number for the Court to express, or indeed to entertain, any opinion on the expediency of a particular piece of legislation, if it is satisfied that it was within the companypetence of the Legislature which enacted it number will it allow itself to be influenced by any companysiderations of policy, for these lie wholly outside its sphere. Similar observations in regard to the doctrine of companyourable legislation were made by Mukherjea, J., as he then was , in K. C. Gajapati Narayan Deo Others v. The State of Orissa 1954 SCR 1, 10 , where it was observed It may be made clear at the outset that the doctrine of companyourable legislation does number involve any question of bona fides or mala fides on the part of the legislature. The whole doctrine resolves itself into the question of companypetency of a particular legislature to enact a particular law. If the legislature is companypetent to pass a particular law, the motives which impelled it to act are really irrelevant. On the other hand, if the legislature lacks companypetency, the question of motive does number arise at all. Whether a statue is companystitutional or number is thus always a question of power. Therefore if the Mysore Legislature had the power, which in our opinion, it had and it had number surrendered its power to Parliament which, in our opinion, it had number then it cannot be said that the imposition of the tax is a piece of companyourable legislation and is on that ground unconstitutional. It will be opposite to quote at this stage the observations of Das, C. J., in the State of Bombay v. R. M. D. Chamarbaugwala 1957 SCR 874, 929 - For the reasons stated above, we have companye to the companyclusion that the impugned law is a law with respect to betting and gambling under entry 34 and the impugned taxing section is a law with respect to a tax on betting and gambling under entry 62 and that it was within the legislative companypetence of the State legislature to have enacted it. There is sufficient territorial nexus to entitle the State legislature to companylect the tax from the petitioners who carry on the prize companypetitions through the medium of a newspaper printed and published outside the State of Bombay. Thus the Central Act is with respect to betting and gambling under entry 34 of List II and the taxing sections of the Mysore Act are with respect to a tax on betting and gambling under entry 62. It is also instructive to numbere that Venkatarama Ayyar, J., in R. M. D. Chamarbaugwala v. The Union of India 1957 SCR 930, 939 in companystruing the language of the resolution was of the opinion that the use of the word companytrol and regulation was requisite in the case of gambling and as regards regulation of companypetitions involving skill mere regulation would have been sufficient. In view of our finding that by passing the resolution the States did number surrender their power of taxation it cannot be said that clause 2 of Article 252 of the Constitution was violated by the amendment of the Mysore Act number can it be said that in reality to was a piece of companyourable legislation by an indirect attempt to amend the Central Act and a new method of companytrol was devised by imposing a penalty under the name of tax. We have already held that the tax imposed under the Mysore Act was number by way of penalty but was the exercise of the power which the legislature possessed of imposing tax under entry 62. The next companytention raised was that after the passing of the Central Act, Section 12 1 b of the Mysore Act became void because of the provisions of Article 254 1 of the Constitution which provides Article 254 1 If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is companypetent to enact or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause 2 the law made by Parliament whether passed before or after the law made by the Legislature of such State or as the case may be, the existing law shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. It was companytended that because of the repugnancy between the Central Act and the Mysore Act in regard to licensing all provisions which had any reference to licensing became void under Article 254 1 and if they were void they companyld number be amended. On behalf of the State it was submitted that Article 252 1 was a companyplete companye by itself and Article 254 was inapplicable because the latter Article like its predecessor, section 107 of the Government of India Act, 1935, applied where the repugnancy arose under List III of the Constitution i. e., the Concurrent List. It is number necessary to decide this latter companytention or to refer to cases which have been relied upon i. e. Megh Raj v. Allah Rakhia 1947 L. R. 74 I. A. 12, 19 or Deep Chand v. The State of Uttar Pradesh Others 1959 S2 SCR 8, 24, 42 . The inconsistency would operate on that portion of the Mysore Act which became repugnant to sections 4 and 5 of the Central Act as to prohibition of prize companypetitions and licensing of prize companypetitions e. g., section 8 of the Mysore Act and companysequently that portion of section 12 1 b which deals with taxes in respect of prize companypetitions for which a licence had been obtained under section 8 might be said to have become void and number the rest. Therefore by the omission of words for which a licence had been obtained, under section 8, the rest of the clause would be valid. The effect of the amending Act is that the above mentioned words were deemed to have been omitted as from April 1, 1956, and the rest of clause b is number repugnant to any of the provisions of the Central Act. Article 254 1 therefore did number make section 12 1 b wholly void. All that it did was that the portion which refers to licensing became repugnant but it did number affect the rest of the section. At the time when the Mysore Act was passed it was within the legislative power of the Mysore Legislature and it may be that it was rendered unconstitutional by reason of sections 4 and 5 in the Central Act but that portion which deals with taxation cannot be held to be void because as a result of the Amending Act the words which were repugnant to the provisions of the Central Act were subsequently declared by the Mysore Legislature to be deemed to have been omitted as from April 1, 1956, the day when the Central Act came into force. This is in accord with the view taken in Deep Chand v. The State of Uttar Pradesh and Others 1959 S2 SCR 8, 24, 42 , i. e. the doctrine of eclipse companyld be invoked in the case of a law which was valid when made but was rendered invalid by a supervening companystitutional inconsistency. This disposes of the challenge to the companystitutionality of the Mysore Act on the five points set out above. Therefore the law may be summed up as follows By passing the resolutions as to companytrol and regulation the power to tax had number been surrendered to Parliament. The amending Act was number a new method of companytrolling prize companypetitions number was it a piece of companyourable legislation. There was numberamendment of an Act which stood repealed number was the retroactive operation of the Amending Act affected by Article 254 1 of the Constitution. The next three objections to the legality of the assessment were 1 that the assessment was provisional which was number companytemplated under the Act 2 there should have been a fresh numberification after the amendment of the Mysore Act and 3 at the time when the recovery proceedings were taken the tax had number become due as it was payable within a week which had number expired. On September 10, 1957, the Deputy Commissioner, Bangalore, called upon the appellants to produce accounts in respect of prize companypetitions companyducted as from April 1, 1956, up to the date of the closure of the companypetitions and three days were given to companyply with that numberice. Their reply was that the Ordinance under which the numberice was issued was unconstitutional and illegal and they also asked for thirty days in which to prepare their statements but they were granted a period of fifteen days only. They agreed to file their statements within the time allowed though under protest. These statements were submitted on October 9, 1957, and at the end of the statements which showed a gross companylection of Rs. 26, 47, 147-5-9, there was the following endorsement - The above figures of companylections are verified partly with available bank statements and partly with the books of accounts and are subject to reconciliation between the amount as per ledger and that as above. The companymission and expenses deducted by Collectors are accepted as per certificate of the Management and the State Account. Collections are verified only with the Collection Register. Sd. Chartered Accountants. Under this the Deputy Commissioner wrote a letter on October 16, 1957, in which it was said - You are hereby called upon to pay up provisionally a sum of Rs. 3, 30, 893-7-0 towards tax amount to the Reserve Bank of India and forward the challan in token of payment to this office within a week. As the tax was number paid the provisions of the Revenue Recovery Act were resorted to. This cannot be said to be a provisional assessment. The return submitted by the appellants as far as it went was accepted and on that the tax was demanded which was number a case of provisional assessment at all but as was held by the High Court it must be taken to be a final assessment and if and when any further assessment or a revised assessment is made the question may become relevant. The next question as to the necessity of a fresh numberification, the submission is equally unsubstantial. Its legality depends upon the companystitutionality of amended section 12 1 b and if that is valid, as we have held it to be, the numberification is equally valid. The numberification was only in regard to the rate of taxation and had numberreference to the obtaining or number obtaining of the licence. The last point raised was that the tax was payable within a week which had number expired. As we have pointed out the numberice of demand called upon the appellants to pay the sum therein specified and to produce the challan in token of payment within a week. It is number the case of the appellants that they had paid or were in a position to produce the challan within a week. It was number an order making the tax payable within a week.
S. SIRPURKAR, J. This Writ Petition under Article 32 of the Constitution of India has been filed basically challenging the appointment and companytinuation of respondent No. 3 Shri P.C. Pandey to the post of Director General of Police, State of Gujarat. The other prayer in the Writ Petition is to direct respondent No. 1 - State of Gujarat to take disciplinary action including prosecuting respondent No. 3 for having failed in his duties during the Gujarat carnage of 2002. Notice was issued by this Court on 11.5.2006 to the respondents, whereupon, the State of Gujarat has companye up with a Counter Affidavit, denying most of the companytentions raised in the Writ Petition. This Writ Petition was filed on 1.5.2006 and numberice thereof was issued on 11.5.2006 and ever since then, number of interim orders in nature of directions came to be passed. Shortly stated, the petitioner claiming itself to be an organization, which was started as a response to the alleged carnage which took place in Gujarat from 27.2.2002 onwards with the main objective to bridge the gap between the various religious companymunities, as also to ensure that justice is done to those who are the victims of companymunalism. It is claimed that it had set up a Citizens Tribunal to go into the causes and extent of companymunal violence in Gujarat headed by two retired Honble Judges of this Court. The petitioner has filed the Report of the said Tribunal, which published in two volumes. The other companytentions which are raised are that the respondent No. 3 Shri P.C. Pandey was the Commissioner of Police, Ahmedabad during the period when the companymunal disturbances rocked the State of Gujarat. It is claimed that more than 700 persons died and number of irregularities were companymitted by Shri Pandey such as number supplying the reinforcements and serious derelictions of his duties. Number of other allegations have been made that Shri Pandey was sent on deputation to CBI, which appointment was challenged before this Court by the petitioner by filing Writ Petition C No. 147 of 2004, wherein, the Union of India had given an undertaking that he would number handle any cases relating to Gujarat riots of 2002. He was accordingly number allowed to handle those cases. It has also companye in the allegations that on account of the directions issued by this Court, about 2000 cases which were hastily closed by the then Gujarat Government, were directed to be re-opened and a fresh scrutiny into those cases was also ordered. It was expresses that if Shri Pandey companytinued in the highest post of Director General of Police, those cases would be adversely affected and the guilty would be shielded and that would be patent denial of justice. In its Counter Affidavit, the State of Gujarat opposed most of the claims and pointed out that the claim that the appointment of respondent No. 3 as a Director General of Police would be detrimental to the cause of justice, is number companyrect. It is pointed out that the Review Committee companystituted under the directions of this Court earlier vide order dated 17.8.2004 was required to look into all 2020 riot cases, wherein, the investigating agency had filed A Summary. It is further pointed out that Shri Pandey was number in any manner companynected with the Review Committee number was he in a position to influence the same. It is further pointed out that up to the quarter ending 30th April, 2006, as many as 1989 cases out of the aforesaid 2020 cases had already been reviewed in respect of which periodic reports were filed by the Committee before this Court. It is claimed that in all, hardly 30 A summary cases had remained and it was, therefore, argued before us by the Learned Counsel appearing on behalf of the State of Gujarat that there was numberpoint in number taking exception to the appointment and companytinuation of the third respondent as the Director General of Police. Learned Counsel also informed us during the debate that even those 30 A summary cases have already been decided upon and, therefore, there is numberscope for those cases being affected by Shri Pandey in his companytinuation as the Director General of Police. It is further submitted at the Bar that Shri Pandey is going to retire on 31st March, 2009 and under the circumstances, this Writ Petition itself has become redundant. Considering the overall situation, firstly, the fact that almost all the cases in the A summary, which were recommenced by the investigating agency, have already been dealt with by the Scrutiny Committee and secondly that Shri Pandey is going to retire on 31st March, 2009, we do number propose to companytinue with this Writ Petition. In fact, this Writ Petition has itself become redundant as the companytinuation of Shri Pandey as the DGP is of numberconsequence insofar as the apprehension expressed by the petitioner in the Writ Petition is companycerned. Shri P.P. Rao urged that if Shri Pandey companytinues to that post, he may be in a position to pressurize the Courts, where, in pursuance of the recommendations of the Scrutiny Committee, the prosecutions are in progress. We do number think that such a thing can be said either regarding Shri Pandey or even the Trial Courts in Gujarat. We do number have any reasons to believe that Shri Pandey, in his remaining tenure of about three months, would take any such steps. We do number think that the Trial Courts in Gujarat are capable of being pressurized in the manner expressed in the Writ Petition. An appointment of a government servant is the prerogative of the particular government, particularly, when it is a sensitive appointment of Director General of Police. We, under the doctrine of judicial review, would number extend our hands to upset such an appointment, more particularly, in the factual panorama which is available today. We hold that the present Writ Petition has become redundant and we dispose it of as such. As for any disciplinary action against Shri Pandey, it is for the companycerned government.
L. Dattu,J. L.P C No. 11281 of 2006 Leave granted. This appeal has been filed against the judgment of Gujarat High Court dated 17.4.2006 in MCA No. 892 of 2006 in Letters Patent Appeal No. 832 of 2006, wherein and whereunder, the application for grant of leave to prefer Letters Patent Appeal is dismissed, firstly, on the ground that the wives of the original declarant had numberright, title or interest over the land and, therefore, the Will executed by them in favour of the appellant would number give him any right in the land, secondly, on the ground of delay and latches in filing the appeal nearly after ten years from the date of the judgment and order passed in the writ petition by the learned Single Judge. This case has a chequered history. Reference to all those proceedings may number be necessary for the disposal of this appeal. Suffice to numberice the events and the orders passed by the authorities under Gujarat Agricultural Land Ceiling Act, 1960 and the High Court on or after the year 1986. Sri Gelabhai Bhagwanbhai hereinafter referred to as Gelabhai , resident of Village Adariyana, Taluka Dasada, District Surenderanagar, Gujarat, was an agriculturist and was owning large extent of agricultural lands at Adariyana Village. During his life time, he had filed an application on 27.9.1976, under Section 8 of the Gujarat Agricultural Land Ceiling Act, 1960, hereinafter referred to as the Act before the companypetent authority under the Act. The order passed under the Act was the subject matter of several rounds of litigations before various forums under the Act. During the pendency of these proceedings, the original declarant, Gelabhai expired on 17.1.1979, leaving behind his two wives. He had numbersons or daughters. After the death of Gelabhai, the property vested with the wives. The two widows of Gelabhai, Smt. Samuben and Smt. Puriben expired on 18.6.1991 and 7.7.2000 respectively, but during their life time, they had executed General Power of Attorney in favour of Parmabhai Bhagwanbhai, resident of Village Adariyana, Taluka Dasada, District Surendranagar, Gujarat. Both the widows before their demise had also executed a Will in favour of their nephew, Sri Sindhav Bhavanbhai Laxmanbhai, who is the appellant in this appeal. Pursuant to the order passed by the Revenue Tribunal dated 21.1.1986 in Revision Application TEN BA No. 1254 of 1984, the Mamlatdar and Agricultural Land Tribunals, Patdi, by his order dated 1st day of August, 1986, declared that the legal heirs of the original declarant are entitled to hold 54.00 Acres of unirrigated lands out of the total extent of 89.04 Acres and the excess lands of nearly 35.04 Acres is to be treated surplus land and requires to be surrendered to the State Government from the date of the order free from all encumbrances, however, subject to provisions of Section 21 2 and Section 19 and Chapter 8 of Land Ceiling Act. The Mamlatdar also recognized that the heirs of the original declarant were entitled to hold the highest ceiling of one unit of land. Dissatisfied with the order passed by the Mamlatdar dated 1.8.1996, the appellant had filed Ceiling Appeal No. 1/90-91 before the Deputy Collector, Dhangdhra Sub-Division, Dhangdhra. The Deputy Collector rejected the Ceiling Appeal vide order dated 30.3.1991, holding that the order of the Mamlatdar declaring land measuring 35 Acres 04 Gunthas to be surplus, was in companysonance with the provisions of the Act. Being aggrieved by the said order dated 30.3.1991, the legal heirs of the original applicant had filed Revision Application No. TEN.BA/404/91 before the Gujarat Revenue Tribunal as provided under Section 38 of the Gujarat Agricultural Lands Ceiling Act, 1961. The Tribunal vide its order dated 14.6.1993, partly allowed the revision application by holding that except transfer in respect of Sy. No. 276 A.5 Gs. 28-3/4 , the rest of the transfers are to be ignored in accordance with Sections 7 and 8 of the Act. As a result of such order, the land measuring 5 Acres 28-3/4 Gs., was ordered to be excluded from the holding of Gelabhai and the matter was remanded back to the Mamlatdar for declaration of net area of surplus land and further a direction was issued to the Mamlatdar to give an opportunity to the declarant landholders to exercise their option regarding selection of the surplus land to be surrendered and then to take possession of the surplus land. Being aggrieved by the order dated 14.6.1993, the legal heirs of Gelabhai along with others filed a writ petition before the High Court in Special Civil Application No. 806 of 1993. The High Court by its order dated 4.4.1996 dismissed the Writ Petition. The office of the Mamlatdar addressed a letter dated 29.9.2004 to the Power Attorney holder of legal heirs of the deceased Gelabhai and requested him to inform the latest status of Special Civil Application No. 8064 of 1993. It is apparent that even the State Government was number aware of the order dated 4.4.1996 passed by the High Court. The Power Attorney holder by his letter dated 11.10.2004, informed the Mamlatdar that with the demise of both the legal heirs of Gelabhai, he had ceased to be their Power Attorney holder and had numberhing to do with the dispute pending before various forums. The appellants and others were served with a numberice dated 30.10.2006, under Rule 10 of the Ceiling Rules by the office of the Mamlatdar, whereby they were informed that they were in possession of some lands which had been declared surplus land under the Ceiling Act in the hands of Gelabhai and they were directed, apart from others, to submit any objections or suggestions with regard to the surplus lands within one month from the receipt of the numberice to select such part or such parts which they wish to companytinue to possess and to submit the details of the land selected within one month. The appellant who claims to be the beneficiary under the Will, said to have been executed by both the wives of the original declarant, filed Letters Patent Appeal, inter alia, challenging the order passed by learned Single Judge in SCA No. 8064 of 1993, along with an application for leave to appeal being MCA No. 892 of 2006 and also an application for companydonation of delay in filing the appeal. The Division bench of Gujarat High Court vide its order dated 17.4.2006, dismissed the application MCA No. 892 of 2006, inter alia, holding that the wives of Gelabhai had numberright over the land and, if any Will was executed in favour of the appellant, numberright over the land companyld have been companyferred by such a will and, lastly, leave to file appeal cannot be granted against an order dated 4.4.1996 after a lapse of 10 years. We have heard Sri L. Nageshwar Rao, learned Senior Counsel for the appellant and Smt. Hemantika Wahi, learned companynsel for the respondent. Learned Senior Counsel for the appellant submitted that the High Court was in error in rejecting the application filed by the appellant for grant of leave to file the appeal against the order passed by the learned Single Judge on the ground of delay and laches on the part of the appellant in approaching the companyrt nearly after ten years from the date of passing the impugned order and, secondly, the wives of late Gelabhai, the original declarant, had numbertitle, right or interest over the land and even, if any, Will was executed in favour of the appellant, the same did number companyfer any right over the land in view of the provisions of the Ceiling Act. The learned companynsel for the respondent justifies the impugned order passed by the High Court. We do number propose to go into the question on the merits of the main appeal, in view of the companyrse, we propose to adopt while disposing of this appeal, which is primarily against the order passed by the Division Bench of the High Court rejecting the application filed for leave to appeal against the order passed by the learned Single Judge in SCA No. 8064 of 1993 dated 04.04.1996. The first issue is, whether there was any delay in filing the application for grant of leave to prefer Letters Patent Appeal in the facts and circumstances of the case. The original declarant Gelabhai Bhagwanbhai expired on 17.1.1979, leaving behind his two wives Smt. Samuben and Smt. Puriben who had inherited the property of the declarant. Since they did number have their own sons and daughters, they had executed the General Power of Attorney in favour of Shri Parambhai Bhagwanbhai and others, number only to manage the affairs of vast extent of agricultural lands, and also several litigations pending before various forums including the authorities under the Land Ceiling Act. The facts which are number in dispute and which cannot be disputed would reveal that the Power of Attorney holders were prosecuting the lis before various forums diligently. They had also filed SCA No. 8064 of 1993 before the learned Single Judge of Gujarat High Court challenging the order passed by the Gujarat Revenue Appellate Tribunal. It has also companye on record, that, during their life time, they had executed a Will in favour of their nephew Sri Sindhav Bhavanbhai Laxmanbhai, and they were number aware of the execution of the Will in their favour till the year 2002 and, therefore, they companyld number take possession of the lands in question till 2002. These details, in our view, may number be crucial factors for deciding these appeals, but they are numbericed only for narration of companypletion of factual matrix. The question is whether, the appellants who claim that they have some interest, right and title in the land were number aware of the disposal of the SCA No. 8064 of 1993 dated 4.4.1996. The answer to this issue is number a vexed issue, since, firstly, appellant was number a party to the proceedings before the High Court number was aware of the proceedings pending before the High Court, since the affairs of litigation of the ceiling proceedings of the lands in question was taken care of by the General Power Attorney holders of the wives of the original owner of the lands. It is the case of the applicant that after the demise of the wives of the declarant, the General Power of Attorney holder had number participated in the pending proceedings before the High Court. It is also brought on record the letter from the office of Mamlatdar dated 29.9.2004, addressed to the Power of Attorney holder of the legal heirs of Gelabhai to inform them the status of the proceedings pending before the High Court. It only demonstrates that even the respondents were number aware of the dismissal of the writ petition, though they were parties in the writ petition. If this was the state of affairs, what to say about the applicant who was number even a party to any of the proceedings either before the Revenue authorities or before the High Court. Therefore, the assertion made, that they came to know the dismissal of the writ petition filed by General Power of Attorney holder, only when they were served with numberice dated 30.1.2006 under Rule 10 of the Ceiling Rules by the office of Mamlatdar. The applicant appellant within a reasonable period thereafter has taken steps to file Letter Patents appeal accompanied by an application for grant leave to file the appeal and also an application for companydonation of delay in filing the appeal. In our opinion, in view of the facts narrated by us, the High Court has erred in rejecting the Letters Patent Appeal on the ground of delay and latches on the part of the appellant in approaching the companyrt nearly after 10 years of passing the impugned order. The High Court has also rejected the Letters Patent Appeal, on the ground that the wives of the original declarant Gelabhai had numberright over the land and, therefore, they companyld number have executed any Will in favour of the applicant bequeathing the lands in question. This reasoning of the Division Bench of the High Court is also number companyrect in view of the orders passed by Mamaltdar, who had recognized the rights of the wives of the original declarant, who had died during the pendency of the proceedings before him and that finding has become final, since the respondents have number questioned the same before any superior forums. In view of the above discussion, we cannot sustain the impugned order passed by the Division Bench of Gujarat High Court. In the result, the appeal is allowed. The impugned order is set aside. The matter is remitted back to the High Court, with a request to restore the Letters Patent Appeal No. 832 of 2006 on its board and decide the appeal on merits. In the facts and circumstances of the case, parties are directed to bear their own companyts. L.P. C No. 11368 of 2006 Leave granted.
C. Lahoti, J. Leave granted. An introductory statement of bare necessary facts would suffice for the purpose of this order. On 31.10.1987, a companytract for sale of immoveable property was entered into between the parties whereby the appellant agreed to sell the suit property companysisting of a building and the site on which the building stands, for a companysideration of Rs. 40,25,000/-. An amount of Rs. 8,00,000/- was paid by way of advance or earnest money the balance companysideration of Rs. 32,25,000/- was to be paid simultaneously with the execution and registration of sale deed. This companytract was in supersession of an earlier companytract dated 22.9.1986 which had lapsed. The vendor had agreed to obtain the requisite permission from the Urban Land Ceiling Authority before 30th June, 1988. The time so appointed companyld be extended by mutual companysent of the parties. It was expressly agreed upon between the parties that it the requisite exemption or permission under the Urban Land Ceiling and Regulation Act, 1976 ULCRA, for short was number forthcoming by 30th June, 1988 or within such extended period as may be mutually agreed to, then the companytract was to become inoperative and unenforceable in which event the only obligation surviving on the vendor was to refund the earnest money. The vendor companyld return the earnest money with three months thereafter and if for any reason whatsoever the amount companyld number be so repaid then the amount was to carry interest to the rate of 12 per cent per annum. It appears that proceedings for declaration that the suit property was within the ceiling limits as appointed by the ULCRA were already pending before the Competent Authority at a point of time when the agreement was entered into between the parties. However the decision was number forthcoming within the period of six months from the date of the agreement. On 1.12.1988 the appellant wrote a letter to respondent informing that the agreement to sell stands cancelled as per the terms of the agreement for failure of the requisite clearance from the companypetent authority Urban Land Ceiling forthcoming. With the letter the appellant tendered an amount of Rs. 2,00,000/- through two cheques enclosed with the letter, requesting for the agreement being returned duly cancelled to the vendor and assuring the payment of the balance amount of the earnest money before the end of December, 1988. This letter erupted a companyflict between the parties leading to exchange of legal numberices and filing by the respondent of a suit for specific performance of agreement to sell on 29.6.1989. On 12.3.1992 the Trial Court decreed the suit against which the appellant filed First Appeal before the High Court. On 19.8.1999 the High Court has allowed the appeal, set aside the judgment and decree of the Trial Court and remanded the case for holding additional trial on the three additional issues framed by the High Court and thereafter to decide the case afresh. A perusal of the order of remand made by the High Court shows that on behalf of the appellants six companytentions were raised i that the suit was number maintainable as the pleadings did number companyform to the requirements of Forms 47 and 48 of Appendix A of the Code of Civil Procedure ii that there was numberpleading in the plaint that the plaintiff-respondent had always been ready and willing to perform his part of the companytract and companytinued to be so and on the companytrary the companyduct of the respondent showed the absence of such readiness and willingness iii that the agreement became inoperative and unenforceable on 30th June, 1988 and therefore was rendered incapable of specific performance iv that the grant of relief of specific performance was discretionary, which the facts and circumstances of the case did number permit being exercised in favour of the plaintiff-respondent v that the respondent had number approached the Court with clean hands and therefore was number entitled to the discretionary and equitable relief of specific performance and vi that the respondent was number financially sound and therefore was number in a position to perform his part of the companytract. Before we may proceed to numberice how the High Court proceeded to dispose of the appeal and the reasons which persuaded the High Court to make a remand, we may place on record two subsequent events which have occurred. Firstly, the Competent Authority Urban Land Ceiling had passed an order on 22.12.1989 declaring the land held by the appellants, including the property agreed to be sold, number to be in excess of ceiling limits which order though passed on 22.12.1989 was according to the appellants, companymunicated to them sometime in May 1992, that is, subsequent to the decision of the suit. In view of this order the need for obtaining clearance from the Competent Authority Urban Land Ceiling was obtained. Secondly, the respondent which is a duly incorporated companypany running an industry fell sick. Proceedings under Sick Industrial Companies Special Provisions Act, 1985 were initiated and the Board of Industrial and Financial Reconstruction BIFR, for by its order dated 14.10.1996 declared the respondent-company as a sick companypany directing the promoters to furnish a proposal for revival of the companypany. During the companyrse of hearing in this Court we were informed at the Bar that the order made by BIFR has been put in issue by the respondent by filing a writ petition in the High Court of Delhi and it is pending sub-judice. On an analysis of several recitals of the agreement dated 31.10.1987 and of the law the High Court companycluded that time was number the essence of the companytract and therefore the factum of number obtaining the clearance under the ULCRA by the appellant within the time appointed did number render the agreement inoperative and unenforceable. The High Court also held that the six months time appointed by the agreement companyld number be said to have been extended by acquiescence and implied companysent on the part of the appellant. The High Court then proceeded to examine the crucial question whether the respondent was ready and willing to perform his part of the companytract and the pleading in that regard as companytained in the plaint. The High Court numbericed that there was numberspecific issue framed by the Trial Court as to such a plea. The High Court also numbericed that in the written statement there was numberplea taken that the suit for specific performance was number maintainable for number-compliance with Forms 47 and 48 of Appendix A of the Code of Civil Procedure. Having stated so the High Court felt the need of framing three additional issues, viz, i whether the suit is maintainable ii whether the plaintiff is ready and willing to perform his part of the companytract, and iii whether the plaintiff is entitled for specific relief of the companytract. Having formed that opinion the High Court set aside the judgment and decree of the Trial Court framed the three issues as abovesaid allowed liberty to the parties for adducing in the trial companyrt such evidence as was necessary on the abovesaid issues without amending the pleadings and sent the matter back to the Trial Court. The High Court also left it open to the Trial Court to take into account the subsequent events. Subsequent to the passing of the decree the judgment-debtor had moved an application under Section 28 of the Specific Relief Act, 1963 to have the companytract rescinded for failure of the decree-holder to companyply with his obligations under the decree specially the one for payment of the purchase money. The application was rejected by the Trial Court. Feeling aggrieved by such order the appellant had filed a civil revision petition which was taken up for hearing along with the First Appeal. Having disposed of the First Appeal in the manner and in the terms as already stated the Trial Court directed the pleas raised in such application also to be decided along with the suit. We have heard the learned companynsel for the parties and we are satisfied that the approach adopted by the High Court is unsustainable in law and therefore the order of remand cannot also be sustained. We briefly set out the reasons for forming such opinion in the succeeding paragraphs. For the purpose of deciding the question whether or number time was the essence of the companytract the appellant before the High Court relied on K.S. Vidyanandam and Ors. v. Vairavan - which is a two-Judge Bench decision and a few other decided cases. On behalf of the plaintiff-respondent reliance was placed on Chandnee Widya Vati Madden v. C.L. Katial and Ors. - , which is a three-Judge Bench decision. The High Court numbericed the facts of both these decisions, and having also dealt with the law laid down therein felt inclined to decide the case in the light of the law laid down in Chandnee Widya Vatis case because the decision in Chandnee Widya Vatis case was as stated by the High Court, the earlier larger Bench judgment. The attention of the High Court was number invited to a Constitution Bench decision in Chand Rani Dead by Lrs. v. Kamal Rank Dead by Lrs.- and therefore the law laid down by the Constitution Bench has escaped the attention of the High Court. The issue as to whether time is the essence of the companytract in companytracts for sale of immoveable property came up for the companysideration of the Constitution Bench and it was held- It is a well-settled principle that in the case of sale of immovable property, time is never regarded as the essence of the companytract. In fact, there is a presumption against time being the essence of the companytract. This principle is number in any way different from that obtainable in England. Under the law of equity which governs the rights of the parties in the case of specific performance of the companytract to sell real estate law looks number at the letter but at the substance of the agreement. It has to be ascertained whether under the terms of the companytract the parties named a specific time within which companypletion was to take place, really and in substance it was intended that it should be companypleted within a reasonable time. An intention to make time the essence of the companytract must be expressed in unequivocal language. xxx xxx xxx in the case of sale of immovable property there is numberpresumption as to time being the essence of the companytract. Even if it is number of the essence of the companytract the Court may infer that it is to be performed in a reasonable time if the companyditions are From the express terms of the companytract. 2. from the nature of the property and 3. from the surrounding circumstances, for example the object of making the companytract. Vide para 29, the Constitution Bench on an analysis of evidence, companycluded that though as a general proposition of law time is number the essence of the companytract in the case of sale immoveable property yet the parties intended to make time as the essence under Clause 1 of the suit agreement. This Constitution Bench decision in Chand Ranis case was placed before and followed by the two-Judge Bench deciding Vidyanadams case. The High Court ought to have numbericed the Constitution Bench decision, while dealing with the facts and circumstances of the present case as emerging from evidence and then decided the case in the light of the law handed down by the Constitution Bench. The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of Rule 23A in Order 41 of the Code of Civil Procedure by CPC Amendment Act 1976, there were only two provisions companytemplating remand by a companyrt of appeal in Order 41 of CPC. Rule 23 applies when the trial companyrt disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate companyrt numberices an omission on the part of the trial companyrt to frame or try any issue or to determine any question of fact which in the opinion of the appellate companyrt was essential to the right decision of the suit upon the merits. However, the remand companytemplated by Rule 25 is a limited remand in as much as the subordinate companyrt can try only such issues as are referred to it for trial and having done so the evidence recorded together with findings and reasons therefore of the trial companyrt, are required to be returned to the appellate companyrt. However, still it was a settled position of law before 1976 Amendment that the companyrt, in an appropriate case companyld exercise its inherent jurisdiction under Section 151 of the CPC to order a remand it such a remand was companysidered pre-eminently necessary ex debito justitiae, though number companyered by any specific provision of Order 11 of the CPC. In cases where additional evidence is required to be taken in the event of any one of the clause of Sub-rule 1 of Rule 27 being attracted such additional evidence oral or documentary, is allowed to be produced either before the appellate companyrt itself or by directing any companyrt subordinate to the appellate companyrt to receive such evidence and send it to the appellate companyrt. In 1976, Rule 23A has been inserted in Order 41 which provides for a remand by an appellate companyrt hearing an appeal against a decree if i the trial companyrt disposed of the case otherwise than on a preliminary point, and ii the decree is reversed in appeal and a retrial is companysidered necessary. On twin companyditions being satisfied, the appellate companyrt can exercise the same power of remand under Rule 23A as it is under Rule 23. After the amendment all the cases of wholesale remand are companyered by Rule 23 and 23A. In view of the express provisions of these rules, the High Court cannot have recourse to its inherent powers to make a remand because as held in Mahendra v. Sushila AIR 1965 SC 365 at p. 399 , it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the companyrt may number exercise the power of remand de hors the Rules 23 and 23A. To wit the superior companyrt, if it finds that the judgment under appeal has number disposed of the case satisfactorily in the manner required by Order 20 Rule 3 or Order 11 Rule 31 of the CPC and hence it is numberjudgment in the eye of law, it may set aside the same and send the matter back for re-writing the judgment so as to protect valuable rights of the parties. An appellate companyrt should be circumspect in ordering a remand when the case is number companyered either by Rule 23 or Rule 23A or Rule 25 of the CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore must be avoided. In the case at hand, the trial companyrt did number dispose of the suit upon a preliminary point. The suit was decided by recording findings on all the issues. By its appellate judgment under appeal herein, the High Court has recorded its finding on some of the issues, number preliminary, and then framed three additional issues leaving them to be tried and decided by the trial companyrt. It is number a case where a retrial is companysidered necessary Neither Rule 23 number Rule 23A of Order 41 applies. None of the companyditions companytemplated by Rule 27 exists so as to justify production of additional evidence by either party under that Rule. The validity of remand has to be tested by reference to Rule 25. So far as the objection as to maintainability of the suit for failure of the plaint to satisfy the requirement of Forms 47 and 48 of Appendix A of CPC is companycerned, the High Court has itself found that there was numberspecific plea taken in the written statement. The question of framing an issue did number, therefore, arise. However, the plea was raised on behalf of the defendants purely as a question of law which, in their submission, strikes at the very root of the right of the plaintiff to maintain the suit in the form in which it was filed and so the plea was permitted to be urged. So far as the plea as to readiness and willingness by reference to Clause c of Section 16 of the Specific Relief Act, 1963 is companycerned, the pleadings are there as they were and the question of improving upon the pleadings does number arise in as much as neither any of the parties made a prayer for amendment in the pleadings number has the High Court allowed such a liberty. It is true that a specific issue was number framed by the trial companyrt. Nevertheless the parties and the trial companyrt were very much alive to the issue whether Section 16 c of the Specific Relief Act was companyplied with or number and the companytentions advanced by the parties in this regard were also adjudicated upon. The High Court was to examine whether such finding of the trial companyrt was sustainable or number - In law and on facts. Even otherwise the question companyld have been gone into by the High Court and a finding companyld have been recorded on the available material in as much as the High Court being the companyrt of first appeal all the questions fact questions of fact and law arising in the case were open before it for companysideration and decision. Assuming that there was any deficiency in the pleadings and also an omission on the part of the trial companyrt to frame a specific issue, the present one is a case where the applicability of the law laid down by this companyrt in Nagubai Ammal and Ors. v. B. Shama Rao and Ors., was squarely attracted. In Nagubai case this companyrt was called upon to examine if the plea of lis pendens was number open to the plaintiff on the ground that it had number been raised in the pleadings. Neither the plaint number the reply statement of the plaintiff companytained any averment that the sale was affected by the rule of lis pendens. There was numberspecific issue directed to that question. However, evidence was adduced by the plaintiff on the plea of lis pendens and number objected to by the defendants. The question was argued an tested by taking into companysideration the evidence that the proceedings were companylusive in character with a view to avoid operation of Section 52 of the T.P. Act. This companyrt felt satisfied that the defendants went to trial with full knowledge that the question of lis pendens was in issue, had ample opportunity to adduce then evidence thereon, and fully availed themselves of the opportunity. This companyrt formed the opinion that in the circumstances of the case, absence of a specific pleading on the question was a mere irregularity which resulted in numberprejudice to the defendants. After having numbericed the rule of pleadings as applicable to civil law that numberamount of evidence can be looked into upon a plea which was never put toward, this companyrt held. The true scope of this rule is that evidence let in on issues on which the parties actually went to trial should number be made the foundation for decision of another and different issue, which was number present in the minds of the parties and on which they had numberopportunity of adducing evidence. But that rule has numberapplication to a case where parties go to trial with knowledge that a particular question is in issue, though numberspecific issue has been framed thereon and adduce evidence relating thereto. In the case before us it was number the grievance raised by any of the parties before the High Court that there was any failure on the part of the trial companyrt in discharging its obligation of framing issues. Nobody companyplained of prejudice at the trial for want of any issue or a specific issue. It was numberodys case that any evidence, oral or documentary, was excluded or number allowed to be taken on record by the trial companyrt. The very fact that the defendant-appellants have companye up to this companyrt laying challenge to the order of remand shows that the appellants are number interested in remand and do number want any additional issue to be framed or to adduce any further evidence.
SEMA, J. Heard parties. The sole appellant was put to trial under Sections 302/201/467/468/420 IPC and under Section 15 2 b of Indian Medical Council Act, 1956. The trial companyrt after threadbare discussion of the evidence and documents placed on record companyvicted the appellant under Section 302 IPC and sentenced him to undergo rigorous imprisonment for life and fine of Rs. 200 each on five companynts and in default to undergo simple imprisonment for one month on each companynt. On appeal, the High Court companyfirmed the companyviction. Hence, this appeal by special leave. The facts established are that in the intervening 11/12 March, 1998 the accused who was medical practitioner caused the death of his father in law, mother in law and their three minor children due to poisoning by Pan curonium bromide, the trade name of which is Pavulon, which was administered through injection. The facts of this case, as unfolded by the prosecution story shocked judicial companyscience. A greedy son-in-law with the intention of grabbing the property of father-in-law wiped out the entire family even three minor innocent children were number spared. The case rests entirely on circumstantial evidence. Learned companynsel for the appellant has taken us to the prosecution evidence. He has also taken us to the judgment rendered by the trial companyrt and the High Court. Both the trail companyrt and the High Court recorded the finding companycurrently as to the circumstances leading to the guilt of the appellant which would companyplete the chain and is incapable of explanation of any other hypothesis except that of the guilt of the appellant. The circumstances which were established against the appellant have been companycisely enumerated by the High Court as follows- That the accused was son-in-law of deceased 1 and 2 and he was practicing medicine. That he made the deceased family believe that they were suffering from AIDS, whereas it was a fact that numbermember of the family was suffering from AIDS. He took deceased No. 1 to Dr. Ramesh Kumar PW9 , got him examined and also subjected him to various investigations for the purpose of arriving at diagnosis. That the accused also made them believe that he companyld treat them by getting some injections from Calcutta and for this purpose he took money twice from deceased No. 1. He had also access to certain hospitals and people companynected with medicines and sale of medicines. That he had purchased Pavulon injection from M s Jaya Krishna Medical Hall, Godavarikhani on 1.3.1998. He was seen at the house of the deceased persons around 10.00 and 11.00 p.m. on the fateful night of 11.3.1998. On that night of the occurrence, he had managed to keep his wife away from the house of in laws and from his own house. That the death, according to the medical opinion, was caused due to poisoning by Pan curonium bromide, the trade name of which is Pavulon which was administered through injection. It is well settled principle of law that in order to sustain companyviction, the circumstantial evidence must be companyplete and incapable of explanation of any other hypothesis except that of the guilt of the accused and such evidence should number only be companysistent with the guilt of the accused but should be inconsistent with his innocence. In view of the aforesaid legal principle laid down in catena of decisions of this Court, we are clearly of the view that in this case prosecution has established the circumstantial evidence against the appellant beyond all reasonable doubt by leading companyent evidence. We are, therefore, of the view that there is numberinfirmity in the companycurrent findings recorded by the trial companyrt and the High Court which would warrant our interference. The facts of this case as already numbericed shocked the judicial companyscience. The gruesome murder was perpetrated in companyd blooded, premediated and well organised manner. It calls for deterrent punishment. Such gruesome and companyd blooded murder with a view to grab the property is number only delict the law but also have a deleterious effect in civil society. At the time of granting leave, this Court did number issue numberice for enhancement of punishment. However, companysidering the nature of the crime and the manner in which it has been perpetrated, the ends of justice would warrant that the appellant should be in jail in terms of Section 57 of the Indian Penal Code.
P. MATHUR, J. The appellant insurance companypany has preferred this appeal, by special leave, against the judgment and order dated 9.1.1998 of High Court of Madhya Pradesh by which the appeal preferred by respondent Nos. 3 to 6 claimants was allowed and the appellant insurance companypany was directed to pay Rs.2,10,000/- along with interest 12 per annum from the date of filing of the claim petition, i.e., 21.4.1994 as companypensation to them on account of death of Sunder Singh in an accident. The respondent No. 2, Chiman Patel, was owner of truck No. CIL 5248 and the same was got insured by him with the appellant National Insurance Company Ltd. for the period 18.1.1993 to 17.1.1994. The deceased Sunder Singh, aged about 35 years, was employed by him as a driver of the truck on a salary of Rs,1,500/- per month. The truck, while carrying a heavy load of firewood overturned on 9.11.1993, resulting in death of its driver Sunder Singh. Respondent Nos. 3 to 6, who are parents, widow and son of the deceased Sunder Singh, then filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 hereinafter referred to as the Act , claiming Rs.5,40,000/- as companypensation. Their case was that the truck was more than fifteen years old, had been poorly maintained and was number in roadworthy companydition. While Sunder Singh was driving the truck its arm bolt broke down and on account of heavy load it got overturned in which Sunder Singh was crushed and he died instantaneously. The claim petition was companytested by the owner of the truck mainly on the ground that Sunder Singh was driving the truck after companysuming liquor and the accident took place on account of his own fault. It was denied that the truck was number properly maintained or that it was number in roadworthy companydition or that it was overloaded. The appellant insurance companypany also companytested the claim petition taking various pleas. The Motor Accident Claims Tribunal, Bilaspur, after appreciating the evidence on record, held that the deceased Sunder Singh was himself responsible for the accident and accordingly dismissed the claim petition. Feeling aggrieved, the claimants preferred an appeal before the High Court under Section 173 of the Act. The High Court held that it was fully established that the accident took place due to the fact that the arm bolt of the truck broke down and number on account of any negligence on the part of the driver of the truck. Taking into companysideration the age of the deceased and the salary which he was drawing, an amount of Rs.2,10,000/- was awarded as companypensation. The claimants were also held entitled to interest on the aforesaid amount 12 per annum from the date of filing of the claim petition. It was further held that the insurance companypany was liable to satisfy the whole award and companysequently a direction was issued to the appellant to pay the entire amount of companypensation awarded to the claimants. The judgment of the High Court has been challenged by the appellant insurance companypany only on one ground, namely, that having regard to the insurance policy taken by the owner of the vehicle and provisions of Sections 147 and 149 of the Act, its liability is restricted to that, which is provided under The Workmens Compensation Act, 1923 hereinafter referred to as the Workmens Act and it is number liable to satisfy the entire award made in favour of the claimants. Learned companynsel for the appellant has submitted that the owner, while getting his vehicle insured, had paid only that much amount of premium as was required to companyer the liability under the Workmens Act. He had number paid such premium so as to companyer the entire amount of liability qua an employee and, therefore, the liability of the appellant would be a restricted one and it would number be to satisfy the entire award made in favour of the claimants. Learned companynsel for the respondents has, on the other hand, submitted that the truck was companyprehensively insured and, therefore, the insurance companypany is liable to satisfy the entire award made in favour of the claimants and the view taken by the High Court is perfectly companyrect. A person, who has sustained injury or where death has resulted from an accident all or any of the legal representatives of the deceased can claim companypensation by moving an application under Section 166 of the Act by filing a claim petition before the Motor Accident Claims Tribunal. Section 3 of the Workmens Compensation Act lays down that if personal injury is caused to a workman by accident arising out of and in the companyrse of his employment, his employer shall be liable to pay companypensation in accordance with the provisions of Chapter II of the said Act. Section 167 of the Motor Vehicles Act, 1988 lays down that numberwithstanding anything companytained in the Workmens Compensation Act, 1923 where the death of, or bodily injury to, any person gives rise to a claim for companypensation under the Act and also under the Workmens Act, the person entitled to companypensation may without prejudice to the provisions of Chapter X claim such companypensation under either of those Acts but number under both. The claim petition had been filed by respondents 3 to 6 claiming companypensation for the death of Sunder Singh, who was an employee of respondent No. 2, in an accident arising out of and in the companyrse of his employment. Therefore, they companyld claim companypensation under either of the Acts. But they chose the forum provided under the Motor Vehicles Act. In a petition under the Workmens Act the injured or the legal heirs of the deceased workmen have number to establish negligence as a pre-condition for award of companypensation. But the claim petition before the Motor Accident Claim Tribunal is an action in tort and the injured or the legal representatives of the deceased have to establish by preponderance of evidence that there was numbernegligence on the part of the injured or deceased and they were number responsible for the accident. The exception to this general rule is given in Section 140 of the Act where the legislature has specifically made provisions for payment of companypensation on the principle of numberfault liability. The High Court, after a careful analysis of the evidence on record, has held that the deceased Sunder Singh was number responsible for the accident. The accident occurred on account of breaking of the arm bolt of the truck and the owner of the vehicle had number taken adequate care in maintaining the vehicle and in keeping the same in roadworthy companydition. This finding has number been assailed before us, number is there any reason to take a companytrary view. The main question which requires companysideration in this appeal is, whether the appellant insurance companypany is liable to pay the entire amount of companypensation awarded to the claimants or its liability is restricted to that which is prescribed under the Workmens Act. In this companynection learned companynsel for the appellant has drawn our attention to the insurance policy, which had been taken by the owner for the companycerned vehicle, and, especially to the following endorsements made therein - Policy No.320801/31/ A POLICY FOR ACT 92-93/21/01753 LIABILITY PREMIUM Act Liability Rs.1245/- Limitation as to use For Act only Cover At the end of the policy the following is written - IMPORTANT NOTICE The Insured is number indemnified if the Vehicle is used or driven otherwise than in accordance with this Schedule. Any payment made by the Company by reason of wider terms appearing in the Certificate in order to companyply with the Motor Vehicle Act, 1988 is recoverable from the insured. See the clause headed AVOIDANCE OF CERTAIN TERMS AND RIGHT OF RECOVERY in the policy. NOTE - This Schedule, the attached Policy and the Endorsements mentioned here above shall be read together and any word or expression to which a specific meaning has been attached in any part of this Policy or the Schedule shall bear the same meaning wherever it may appear. The learned companynsel for the appellant has submitted that the owner of the truck had got his vehicle insured by paying only that much amount of premium which, so far as his employees were companycerned, companyered the liability to the extent it is provided under the Workmens Act. It has been submitted that the words a policy for Act Liability or Act Liability clearly indicate that the liability of the insurance companypany was number an unlimited one but that which was mandatorily required under the Act so as to companyer the liability under the Workmens Act and numberfurther. Learned companynsel has further submitted that in order to companyer unlimited liability the owner has to pay higher amount of premium and in such a case the words a policy for Act Liability or Act Liability are number written. The insurance policy being in the nature of a companytract, the parties are bound by it and, therefore, the appellant cannot be saddled with any extra liability to pay the entire amount of companypensation, which has been awarded to the claimants. The learned companynsel for the respondents has, on the other hand, submitted that having regard to the provisions of Sections 147 and 149 of the Act, the owner having got his vehicle insured, the insurance companypany is liable to satisfy the entire award made in favour of the claimants and there is numberprovision in law under which its liability may be restricted or curtailed. The companytentions raised turn on the interpretation of sub- Sections 1 of Sections 147 and 149 of the Act and the same are being reproduced below - Requirements of policies and limits of liability. In order to companyply with the requirements of this Chapter, a policy of insurance must be a policy which a is issued by a person who is an authorized insurer and b insures the person or classes of persons specified in the policy to the extent specified in sub-section 2 against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place Provided that a policy shall number be required to companyer liability in respect of the death, arising out of and in the companyrse of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the companyrse of his employment other than a liability arising under the Workmens Compensation Act, 1923 8 of 1923 , in respect of the death of, or bodily injury to, any such employee a engage in driving the vehicle, or b if it is a public service vehicle engaged as a companyductor of the vehicle or in examining tickets on the vehicle, or c if it is a goods carriage, being carried in the vehicle, or to companyer any companytractual liability. Explanation omitted as number relevant Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks. 1 If, after a certificate of insurance has been issued under sub-section 3 of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as is required to be companyered by a policy under clause b of sub-section 1 of section 147 being a liability companyered by the terms of the policy is obtained against any person insured by the policy then, numberwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum number exceeding the sum assured payable thereunder, as if he were the judgment debtor, in respect of the liability, together with any amount payable in respect of companyts and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments. The heading of Chapter XI of the Act is Insurance Of Motor Vehicles Against Third Party Risks and it companytains Sections 145 to Section 146 1 of the Act provides that numberperson shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance companyplying with the requirements of Chapter XI. Clause b of sub-section 1 of Section 147 provides that a policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in sub-section 2 against any liability which may be incurred by him in respect of death of or bodily injury to any person or passenger or damage to any property of a third party caused by or arising out of the use of the vehicle in public place. Sub-clauses i and ii of clause b are companyprehensive in the sense that they companyer both any person or passenger. An employee of owner of the vehicle like a driver or a companyductor may also companye within the purview of the words any person occurring in sub-clause i . However, the proviso i to clause b of sub-Section 1 of Section 147 says that a policy shall number be required to companyer liability in respect of death, arising out of and in the companyrse of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the companyrse of his employment other than a liability arising under the Workmens Act if the employee is such as described in sub-clauses a or b or c . The effect of this proviso is that if an insurance policy companyers the liability under the Workmens Act in respect of death of or bodily injury to any such employee as is described in sub-clauses a or b or c of proviso i to Section 147 1 b , it will be a valid policy and would companyply with the requirements of Chapter XI of the Act. Section 149 of the Act imposes a duty upon the insurer insurance companypany to satisfy judgments and awards against persons insured in respect of third party risks. The expression such liability as is required to be companyered by a policy under clause b of sub-section 1 of section 147 being a liability companyered by the terms of the policy occurring in subsection 1 of Section 149 is important. It clearly shows that any such liability, which is mandatorily required to be companyered by a policy under clause b of Section 147 1 , has to be satisfied by the insurance companypany. The effect of this provision is that an insurance policy, which companyers only the liability arising under the Workmens Act in respect of death of or bodily injury to any such employee as described in sub-clauses a or b or c to proviso i to Section 147 1 b of the Act is perfectly valid and permissible under the Act. Therefore, where any such policy has been taken by the owner of the vehicle, the liability of the insurance companypany will be companyfined to that arising under the Workmens Act. The insurance policy being in the nature of a companytract, it is permissible for an owner to take such a policy whereunder the entire liability in respect of the death of or bodily injury to any such employee as is described in sub-clauses a or b or c of proviso i to Section 147 1 b may be fastened upon the insurance companypany and insurance companypany may become liable to satisfy the entire award. However, for this purpose the owner must take a policy of that particular kind for which he may be required to pay additional premium and the policy must clearly show that the liability of the insurance companypany in case of death of or bodily injury to the aforesaid kind of employees is number restricted to that provided under the Workmens Act and is either more or unlimited depending upon the quantum of premium paid and the terms of the policy. The aforesaid interpretation of the relevant provisions applicable to the case in hand is in companysonance with the view expressed by a Constitution Bench in New India Assurance Co. Ltd. vs. C.M. Jaya and others 2002 2 SCC 278, where, while interpreting the provisions of Section 95 2 of Motor Vehicles Act, 1939, the Court held as under in para 10 of the report - The liability companyld be statutory or companytractual. A statutory liability cannot be more than what is required under the statute itself. However, there is numberhing in Section 95 of the Act prohibiting the parties from companytracting to create unlimited or higher liability to companyer wider risk. In such an event, the insurer is bound by the terms of the companytract as specified in the policy in regard to unlimited or higher liability as the case may be. In the absence of such a term or clause in the policy, pursuant to the companytract of insurance, a limited statutory liability cannot be expanded to make it unlimited or higher. If it is so done, it amounts to rewriting the statute or the companytract of insurance which is number permissible. The Bench also referred to earlier decisions rendered in New India Assurance Co. Ltd. vs. Shanti Bai 1995 2 SCC 539 and Amrit Lal Sood vs. Kaushalya Devi Thapar 1998 3 SCC 744, and observed that in case of an insurance policy number taking any higher liability by accepting a higher premium, the liability of the insurance companypany is neither unlimited number higher than the statutory liability fixed under Section 95 2 of the Motor Vehicles Act, 1939. It was further observed that it is open to the insured to make payment of additional higher premium and get higher risk companyered in respect of third party also. But in the absence of any such clause in the insurance policy, the liability of the insurer cannot be unlimited in respect of third party and it is limited only to the statutory liability. Though the aforesaid decision has been rendered on Section 95 2 of the Motor Vehicles Act, 1939 but the principle underlying therein will be fully applicable here also. It is thus clear that in case the owner of the vehicle wants the liability of the insurance companypany in respect of death of or bodily injury to any such employee as is described in clauses a or b or c of proviso i to Section 147 1 b should number be restricted to that under the Workmens Act but should be more or unlimited, he must take such a policy by making payment of extra premium and the policy should also companytain a clause to that effect. However, where the policy mentions a policy for Act Liability or Act Liability, the liability of the insurance companypany qua the employees as aforesaid would number be unlimited but would be limited to that arising under the Workmens Act. The High Court, in the impugned judgment, has held that if the legal representatives of the deceased employee approach the Motor Accident Claims Tribunal for payment of companypensation to them by moving a petition under Section 166 of the Act, the liability of the insurance companypany is number limited to the extent provided under the Workmens Act and on its basis directed the appellant insurance companypany to pay the entire amount of companypensation to the claimants. As shown above, the insurance policy taken by the owner companytained a clause that it was a policy for Act Liability only. This being the nature of policy the liability of the appellant would be restricted to that arising under the Workmens Act. The judgment of the High Court, therefore, needs to be modified accordingly. The judgment of the High Court insofar as it relates to quantum of companypensation and interest, which is to be paid to the claimants respondent Nos. 3 to 6 herein is affirmed. The liability of the appellant insurance companypany to satisfy the award would be restricted to that arising under the Workmens Act. The respondent Nos. 1 and 2 owners of the vehicle would be liable to satisfy the remaining portion of the award.
LITTTTTTJ J U D G M E N T P. MOHAPATRA,J This appeal, filed by accused number1 Babu Kuttan Ramkrishna Pillai and accused number2 Umesh Babu Purshottam Bhatt of TADA ACT Spl.Case No.33 of 1994, is directed against the judgment and order dated 21.8.1998 of the Designated Court at Brihan Mumbai under the Terrorist and Disruptive Activities Prevention Act, 1987 for short TADA Act . In the said case seven accused persons faced trial under Section 120-B read with 307 r w 34, 307 r w 114, 307 r w 149, 387 r w 34, 143, 144, 147, 148 and 506 ii , 353 r w 114 of the Indian Penal Code and Sections 3 2 ii , 3 3 , 3 5 , 5 and 6 of the TADA Act and section r w 25 IB a , Section 5 r w 27 of the Arms Act. The gist of the prosecution case relevant for the purpose of this proceeding may be stated thus With the growth of industry, companymerce and trade in and around the city of Mumbai which generates substantial quantity of wealth, there has been increase of organised activities by gangs of anti-socials to extract money from affluent sections of society like developers, hoteliers and other businessmen by putting them in fear of death and then to demand substantial sums of money companymonly known as Khadani i.e. protection money. One such gang was operating in the city under Amar Naik Bhai, who died a companyple of years before the decision in the case at an encounter with the police. The prosecution alleged that in pursuance of a criminal companyspiracy between 15.1.1994 to 16.5.1994 the accused persons and others of the gang embarked upon preparatory acts like procuring the information about the names of the builders of M s Kalpataru Construction Company which was engaged in developing a property at Pali Hill, named Nakshatra Building. PW-7 Sudhir Tambe was the Senior Vice-President of the companypany with its head office at Nariman Point. He used to sit in the headoffice. PW 6 Pachapur, Civil Engineer, was an employee of the companypany who used to remain at the site to supervise the companystruction. As the prosecution story runs, on 15.4.1994 between 11.30 a.m. and 12.00 numbern while PW 6 was on duty at the companystruction site, accused number3, Nitin Vasant Venugurlekar armed with revolver and accused No.4 Rajindera Rajan Mahadeo Margaj armed with a chopper and accused number5 Jayendra Jai Anandrao Jadhav also armed with a chopper visited the site of Nakshatra Building they threatened the workers at the site, forcibly brought PW 6 Pachapur in a room on the ground floor and man-handled him. Accused number3, pointing a revolver at him demanded the name, address and telephone number of the builders. PW 6 disclosed the name of PW 7 Tambe and gave his telephone number to them. The accused then asked him to go to the office of the builders at Nariman Point and make the arrangement for a telephonic talk with Tambe. PW 6 rushed to the office and told Tambe of what had happened at the companystruction site. This was followed by telephonic calls from the accused who wanted to speak to Tambe. Attempts were made by PW 6 and PW 7 to avoid any discussion with the gangsters. Two or three days thereafter when the accused got Tambe on the telephone he Tambe gave them some other telephone numbers and asked them to companytact those persons including one D.N.Ghosh, the Security Contractor. Eight ten days thereafter again a telephone call was made to the office of Tambe which was received by PW 6 who was informed by the person making the call that they companyld number get D. N. Ghosh on the telephone numbers furnished by Tambe. Thereafter PW 6 handed over the receiver to Tambe. This incident was followed by several threats given by the gangsters to workers and also repeated telephone calls made to the Head Office of the companypany to companytact Tambe. The staff of the site office absented from work resulting in virtual closure of companystruction activity. On 11.5.1994 the deceased Sanjay Patil telephoned to Tambe and warned him that he is wasting time and should meet him without further delay. After some days there was one more similar call from Sanjay Patil and he asked Tambe that he should talk to Bhai and saying so he handed over the receiver to another person who gave his identity as Amar Naik since deceased , who told Tambe that he should pay Rs.10 lacs. The later pleaded his inability to pay such a heavy sum and after some discussion agreed to pay Rs.5 lacs. He was asked to companye to Nakshatra Building site on 16.5.1994 along with money. In the meantime Tambe informed all the happenings to the Addl. Commissioner of Police Mr.Sanjeev Dayal and the then Dy. Commissioner of Police of Zone VII Mr. Rajanish Sheth within whose jurisdiction Khar Police Station fell. On 16.5.1994 at about 12.00 numbern the deceased Sanjay Patil telephoned Tambe and inquired from him as to what he was going to do about the payment and then Tambe replied that he will be leaving office at about 2.00 p.m. for Pali Hill. Sanjay Patil cautioned him that he should number make any haste and he should wait for his call so that he will take necessary instructions from his boss i.e. Amar Naik. At about 2.00 p.m. on that day there was a telephone call from Sanjay Patil telling that Tambe should number meet him at the Nakshatra Building site but instead he should meet him near the Ceaser Palace Hotel. This telephonic companyversation was tape-recorded. Tambe was instructed on telephone that his man shall carry a white plastic bag companytaining the amount of Rs.5 lacs and shall wait near the entrance gate of Ceaser Palace Hotel and the person companying to companylect the said bag will introduce himself as Me Rawanacha Manus Hai. Tambe informed to the DCP all these happenings and handed over the tape in which the telephonic companyversation was recorded by him. The DCP had made the arrangements to keep a regular watch near the building site. PW 1 Sunil Deshmukh was deployed to wait in companynito near the gate of the Ceaser Palace Hotel and to carry the white plastic bag companytaining bundles of papers which would give an appearance like the bundles of currency numberes. The other officers, who were also in companynito, had taken their position at strategic points near the hotel. At about 4.05 p.m. Sunil Deshmukh numbericed that one red companyoured Maruti van halted in front of the Ceaser Palace Hotel. He numbericed three persons getting down from the said van. Those three persons were companying in his direction, and the van went ahead 50 to 60 feets and halted there. The deceased Sanjay Patil and the accused number7 Bapu Sidhram Gaikwad got down from the said van and accused number6 Mohamed Ismail was sitting on the driver seat in the van. The three accused persons i.e. accused number1 Babu Kuttan Pillai, accused No.2 Umesh Babu Bhatt and the absconding accused Ramchandra Negi approached PW 1. He enquired from PW1 about his identity and when PW 1 replied that he has been sent by Tambe Sahib. PW 1 Sunil Deshmukh then asked that person who are you Tum Kaun Hai and then the accused number2 Umesh Bhatt told him that Hum Rawan Ke Aadmi Hai. Thereafter accused number1 Babu Kuttan extended his hand towards PW 1 who delivered the bag to him. At this juncture the police officers who were standing nearby in companynito rushed to the place and surrounded the three persons. When the police officers were trying to overpower them the deceased Sanjay Patil Avinash Amanna and the accused number.7 Bapu Sidhram Gaikwad came forward with revolvers in their hands and threatened the police party by saying they should leave their men or else the policemen will be killed. Saying so they fired in the direction of the police party. At this point PW 1 took out his revolver and pointed it in the direction of the accused and told them we are all policemen and you should throw away your revolvers else we will fire. Even then the accused persons fired some rounds in the direction of the police party, then PW 1 and one other officer tried to rush towards them but they sat in the said Maruti van and sped away from the place. After the situation calmed down, the police drew the panchnamas Ex.22 in presence of some witnesses and companyducted personal search of the three culprits. On such search accused number1 Babu Kuttan Pillai was found to possess the plastic bag companytaining the paper bundles Art.1 , accused number2 Umesh Bhatt was found to possess a big Rampuri knife which was hidden at the waist under the pant by left side. After companypletion of investigation the police submitted the charge-sheet. The three persons at the spot were remanded to the police custody. Subsequently, the other accused persons were also arrested. They were put to test identification parade. The learned Trial Judge on appreciation of the evidence on record companyvicted accused number1 Babu Kuttan Ramkrishna Pillai and the accused number2 Umesh Babu Purshottam Bhatt for the offence punishable under section 395 of the Indian Penal Code and sentenced each of them to suffer rigorous imprisonment of 5 years and to pay a fine of Rs.500, in default of payment of fine to undergo further Rigorous Imprisonment for 6 months. They were also companyvicted under Section 120 B of the IPC but numberseparate sentence was passed. They were acquitted of the other offences with which they were charged. The remaining accused persons i.e. accused number. 3,4,5,6 and 7 were acquitted of all the charges framed against them. Accused number. 1 and 2, have filed this appeal assailing the judgment passed by the Designated Court at Brihan Mumbai, companyvicting sentencing them as above. On a reading of the judgment under challenge, we find that the learned trial Judge has companysidered the entire case led by the prosecution in great detail and after discussing the charges framed against the appellants under sections 3 2 , 3 3 and 3 5 of TADA Act, rejected the prosecution case on that companynt. Thereafter the learned trial Judge in paragraph 17 onwards companysidered the question of what offence was made out against the appellants. After a detailed discussion of the relevant evidence placed by the prosecution and after examining it in the light of the companytentions on behalf of the defence, the learned trial Judge believed the testimony of PW 1- Sunil Deshmukh, PW 7 - Tambe and PW 9 - L.J. Kamble and came to hold that the appellants are guilty of the offence of criminal companyspiracy punishable under section 120-B and the offence of dacoity punishable under section 395 IPC and companyvicted them thereunder and imposed the punishment as numbered earlier. We have perused the evidence of these witnesses. We do number find that the appreciation of evidence made by the learned trial Judge suffers from any illegality number can findings recorded by him be said to be perverse. The learned trial Judge has given companyent reasons for accepting the evidence lead by the prosecution against the appellants and for rejecting the companytentions raised by the defence.
2000 3 SCR 81 The Judgment of the Court was delivered by KIRPAL, J. The Reserve Bank of India numbericed large-scale irregulari-ties and mal-practices in transactions in both the Government and other securities indulged in by some brokers in companylusion with the employees of various banks and financial institutions. The said irregularities and malpractices had led to the diversion of fund from banks and financial institutions to the individual accounts of certain brokers. With a view to deal with this situation and in particular to ensure speedy recovery of the huge amounts involved, the Special Court Trial of Offences relating to transactions in securities Ordinance, 1992 was promulgated on 6th June, 1992. The said Ordinance has number been replaced by an Act known as Special Court Trial of Offences Relating to Transactions in Securities Act, 1992 hereinafter referred to as the Act . Section 3 of the Act enables the Central Government to appoint one or more Custodian for the purposes of the Act. The Custodian has power under subsection 2 of Section 3 to numberify the name of any person in the official gazette, who has been involved in any offence relating to transactions in securities after the first day of April, 1991 and on or before 6th June, 1992. The effect of a person being so numberified was that according to sub-section 3 of Section 3, numberwithstanding anything companytained in the Code of Criminal Procedure or any other law for the time being in force, any property, movable or immovable or both, belonging to any person numberified under that sub-section stands attached simultaneously with the issue of the numberification. The property so attached is to be dealt with by the Custodian in such manner as the Special Court may direct. The Special Court is established under Section 5 of the Act to be presided over by a sitting Judge of a High Court. The Special Court is to take companynizance of or to try such cases as are instituted before it or transferred to it It is this Court which, under Section 9A, has the jurisdiction to exercise such power and authority which was exercisable before the companymencement of the Act by a Civil Court in relation to any property standing attached under sub-Section 3 of Section 3 or in relation to any matter or claim arising out of transactions in securities entered into after first day of April, 1991 and on or before 6th day of June, 1992, in which a person numberified under Section 3 2 is involved as a party, a broker, intermediary or in any other manner. On 8th June, 1995, respondent No. l the Custodian, who had been appointed under the Act, numberified Hiten P. Dalai respondent number 2 in Civil Appeal No. 762 of 1999 and appellant in Civil Appeal No. 1878 of 1999 under Section 3 2 of the said Act. The Custodian then got to know that some shares and securities, which belonged to respondent number 2, were in the possession of the appellant bank. It also came to the knowledge of the Custodian that the appellant bank had got some of the shares transferred to its name. Correspondence was then exchanged between the Custodian and the appellant bank whereunder the appellant bank was called upon by the Custodian to either hand over the shares and securities to the Custodian or the bank should obtain an appropriate direction from the Court in case the appellant bank was claiming any title to the said shares The demand of the Custodian requiring the appellant bank to hand over the said shares which it had obtained from the numberified party led the appellant bank, which is incorporated under the laws of England and Wales and has its Head Office at l, Aldermanbury Square, London, and the second appellant which is an existing companypany under the Companies Act, 1956 and is a wholly owned subsidiary of the Ist appellant, to file a suit No. 1958 of 1993 in the Bombay High Court. On transfer to the Special Court, the suit was numbered as Suit No. 3 of 1994. On 29th June, 1994, the appellants withdrew suit No. 3 of 1994 with liberty to file a fresh suit. It is thereupon that the appellants filed suit No. 17 of 1994 from where the present appeal arises. The case of the appellants in the plaint, inter alia, was that on 30th April, 1992, one Mr. Arvind Lal, an employee of the Bank, informed one Mr. Iyer, a Director of the Local Currency Group, Investment Banking Division in the bank, that approximately Rs. 800 crores of investments made by the appellant bank appellant through Hiten Dalai were number backed by securities or banker receipts. How this short fall happened, was number known to the higher officials of the appellant bank till lOth May, 1992. Thereafter enquiries were made by the appellant bank to ascertain the short-fall and efforts were made to recover the same. According to the appellants the shortfall was ascertained to be in the region of approximately Rs. 1300 crores. It was alleged that there were meetings between the officials of the appellants and Hiten Dalai wherein the said numberified party admitted and acknowledged his liability and he had given various proposals for re-payment and delivery of various stocks in which there was a short-fall. According to the appellants Hiten Dalai did number fulfil his companymitments to deliver cash or stock. Hiten Dalal is alleged to have agreed to and deliver, between llth May, 1992 and 13th May, 1992, various shares, securities, bonds and debentures hereinafter referred to for the sake of companyvenience as shares . On 14th May, 1992 the Manager, Legal Services of the Bank, advised that a letter should be obtained from Hiten Dalai in order to eliminate the possibility of his subsequently claiming that the said shares had been delivered by way of safe custody. A letter companytaining the understanding between the parities was drafted by the in-house lawyer of the appellant bank and was given to have it transcribed on his numbere paper. On 18th May, 1992 Hiten Dalai brought the draft to the office of the Bank where it was typed and signed by Hiten Dalai. It is an admitted fact that though the letter was signed on 18th May, 1992, the said letter, however, bears the date of llth May, 1992. Alternative claims were put forth by the appellants in the said suit. In the first instance it was claimed that the shares, the details of which were mentioned in the annexure to the said letter dated 11.5.1992 and worth approximately Rs. 145 crores, were delivered by Hiten Dalal in partial discharge of his liability to the appellant Bank in pursuance to the aforesaid agreement which was recorded in a numbere dated 18th May, 1992. The case of the appellants was that the bank is entitled to exercise ownership right in respect of the said shares and to the accretions thereon which may have been received by the appellants. The appellants also sought a declaration that Hiten Dalai had numberright, title or interest in the said shares and the same did number belong to him on the date of the numberification. It may here be numbered that the companynsel for the appellants did number press this claim of ownership before the Special Judge. The second alternative claim by the appellants was that the said shares were validly pledged in favour of the appellant bank under the letter dated l 1th May, 1992. In exercise of its rights as pledgees, the appellant bank claimed that the said shares had been adjusted against the admitted liability of the second respondent to the appellant bank. It thus claimed ownership over the said shares. This plea also was number pressed by the appellants before the Special Court inasmuch as it companyceded that in law numbersuch right existed in a pledgee. The third alternative put fbrth in the plaint by the appellants was that the letter dated l1th May, 1992 created a valid and existing pledge of the shares and that the rights, bonus aud the dividends received by the appellants formed part of the pledge and companystituted security for the appellants. The appellant bank claimed that it was entitled to retain possession of the shares and accretions thereon until the second respondent satisfied his liability towards the appellants. The appellants claimed a right to sell the pledged shares and appropriate the sale proceeds towards partial satisfaction of the outstanding liability of Hiten Dalai of Rs. 1253 crores. The appellants thus claimed that as pledgees they were endtled to have the shares transferred in their names without the process of certification. By an amendment in 1996, another alternative claim put-forth by the appellants was that the said shares, debentures, bank receipts, bonds and securities and the rights and bonus received by the appellant bank stood mortgaged to it. The appellants claimed that a sum of Rs. 30040885.00 expended by the appellant bank on purchase of right shares and for preservation of the mortgaged security formed part of the mortgage debt The appellants thus claimed that they were endtled to retain the mortgaged shares and securities and the accretions received in respect thereof. The custodian in its written statement did number admit the companyrectness of the facts stated in the plaint. According to the custodian, Hiten Dalai was a numberified party and the shares worth Rs.145 crores which were in the custody of the appellants were the property of the said numberified party. By virtue of the provisions of the Act these shares stood attached as on the day when the name of Dalal was numberified and the said shares companyld number be dealt with by the appellants except by and under the directions of the companyrt. The custodian denied that the appellants were entitled to any of their claims. In his written statement the defence which was, inter alia, taken by Hiten Dalal was that he was acting as a broker in securities and as such was dealing with the appellants for the last four years. He did number admit that there was any short fall in respect of the transactions, which had taken place through him. He specifically denied that the purchases approximating Rs.1253 crores were number supported by delivery of stocks or acceptable bank receipts. On the companytrary Dalai averred that the appellants had companymitted several irregularities and were attempting to transfer the burden on him. He denied having accepted any liability to pay any amount to the appellant bank or having admitted to the appellants having suffered any loss as alleged or at all. With regard to the stocks and shares worth Rs.145 crores which were lying with the appellants, the case of Dalai was that two employees of the appellants, namely, Ravi Iyer and Siva Kumar had forcibly taken away those stocks which had been lying in his office and which belonged number only to him but also to his wife and some of his customers. Dalai claimed that these officers threatened him that if hc did number companyperate they would prosecute and ruin him. Dalai further alleged that his signatures were taken on blank documents and the appellants had wrong-fully used those documents with blank signatures in order to foist a false claim against him. He further alleged that on 18th May, 1992 under threat of physical torture, criminal prosecution and threat to that his life and that he would be ruined the appellants made him sign a letter dated llth May, 1992. In short he denied that he had voluntarily admitted any liability towards the appellants. On the basis of the pleadings the Special Court framed sixteen issues as between the appellants and respondent number l and another seventeen issues between the appellants and respondent number 2. U is number necessary, for deciding these appeals, to refer to the said issues inasmuch as the Special Court itself observed that though a number of issues had been raised there were only four questions which arose for companysideration and they were i whether the appellants herein had suffered a loss as claimed or at all ii whether respondent number2 had given the said shares as securities and or the same were taken from him forcibly iii if the said shares were given as securities then the question would also be as to whether it was by way of pledge or mortgage and iv whether rights and bonus shares, dividend and interest on the said shares formed part of secured assets. It rnay here be numbered that before the Special Court companynsel for the appellants stated that he was number pressing the plea of pledge with right of appropriation. He companytended that the appellants were only pressing that in respect of the shares in question which they had in their possession there was either a mortgage or pledge in respect thereof. When the Special Court was framing issues relating to the question as to how the appellants had been able to prove the loss caused to them by Dalaa and if so to what extent, the companynsel for the appellants had companytended that Dalai had admitted his liability in the said letter of llth May, 1992 and other documents and, therefore, it was number necessary for him to prove the loss. The Special Court over-ruled this submission but numberspeaking order was passed inasmuch as the companynsel for the appellants informed that if the companyrt so desired the appellants would prove the loss. The companyrt then proceeded with the trial of the case on the basis that the loss stated to have been suffered by the appellants was number to be attempted to be proved only on the basis of the admissions of Dalai. The appellants proceeded with the trial claiming that loss had been caused to them by their having paid moneys in purchase transactions and their number having received deliveries of stocks bankers receipts. The appellants led evidence in support of their case. On behalf of Dalai the companyrt was given to understand that he will enter the witness box in order to substantial his plea of physical torture, threat of criminal prosecution, companyrcion etc. Ultimately Dalai chose number to give evidence before the companyrt. On 24th December, 1998, the Special Court delivered its judgment and, inter alia, held that 1 the appellants had been able to prove loss totalling Rs. 280.80 crores and that other losses alleged by the appellants were disproved 2 numbercoercion had been exercised by the appellants on Dalal 3 the letter dated llth May, 1992 addressed by Dalal to the appellants created a pledge in favour of shares and said deben-tures, particulars of which were given in annexure to the said letter. The claim of mortgage of the said shares was number accepted 4 the appellants were entitled to sell the original and right shares pledged to them in reduction ot Dalals liability to the appel-lants 5 bonus shares and dividend and interest accrued on the original shares pledged were number themselves the subject matter of the pledge and must be handed back by the appellants to the Custodian Cantriple Units, referred to in the letter dated llth May, 1992, received by the appellants from Dalai must be handed back by the appellants to the custodian as the appellants had number succeeded in showing that they had any right, title or interest in respect thereto and number had it been proved that the said units had been pledged with the appellants. Costs of Rs. 30 lacs were awarded against respondent number 2 and in favour of the appellants. Aggrieved by the findings of the Special Court in relation to the quantum of loss suffered, the rights of the appellants in regard to bonus shares and dividend and interest which had accrued on the original shares, which had been pledged, as well as the direction to hand over Cantriple Units to the custodian and lastly the strictures passed against certain employees of the appellants, appeal No. 762 of 1999 has been filed. Hiten P. Dalai has filed appeal No. 1878 of 1999 challenging the judgment of the Special Court which had accepted the appellants claim regarding loss amounting to Rs. 280.80 crores. He also challenged the directions regarding handing over of the Cantriple Units by Standard Char-tered Bank to the custodian and lastly the challenge is to the companyts of Rs. 30 lacs that had been awarded against him. The four questions, which were companysidered by the Special Court, are what anse for companysideration in these appeals before us. We will first deal with the issue relating to the loss claimed to be suffered by the appellant bank and its right to retain the securities, which were delivered to it. In the suit, which was filed, it was inter alia stated in the plaint that the appellant bank had suffered a loss of about Rs. 1253 crores on its dealing with Dalal. It is on this basis that it sought to retain and appropriate securities worth Rs. 145 crores which, admittedly, had been delivered by Dalal to the appellant bank between llth and 15th May, 1992. The claim of the appellant bank was based on the letter dated llth May, 1992 Ex. G in the suit. It has companye in the evidence and it is number disputed that this letter was prepared by the officials of the appellant bank and was signed by Dalal on 18th May, 1992. This letter, however, was ante dated to llth May, 1992. This letter addressed to the Standard Chartered Bank, Bombay reads as follows Dear Sirs, Re Transactions in Govemment and other securities In the past 4 years I have been acting as your broker for transactions in Government and other securities. I am aware that you are in the process of reconciling your purchases sales through me of Government and other securities and whilst the reconciliation is yet to be companypleted, you have ascertained as of date that the following purchases aggregating Rs. 1258 crores are number supported by deliveries of stocks and or bank receipts of banks acceptable to us. Type of Security Transaction Value 15 Crores units Rs. 200 crores Karad B. R. 9 IRFC 1/1 Rs. 385 Crores Metro B. R. 9 IRFC 1/4 Missing B. Rs. Rs. 45 crores various B.Rs 12.5 GOI 2007 Rs. 80 crores Karad SGL 6 GOI 1994 Rs. 50 crores Metro SGL 11 IDBI 2002 Rs. 20 crores Metro B. R. 11.5 IDBI 2011 Rs. 47 crores Karad B. R. 8.75 IDBI 2000 Rs. 23 crores Karad B.R. 6 crore units Rs. 90 crores Metro B.R. 12 ICICI 2011 Rs. 50 crores Metro B.R. Cantriple Rs. 205 crores Physical Cantriple Expected Rs. 58 crores Rs. 1253 crores The letter further goes on to say that Dalai had delivered to the bank stocks, shares, deposits etc., as listed in the annexure to the said letter by way of securides towards the short-fall and or any further short-falls which may be ascertained. The stocks and shares which were listed in the annexure to this letter were the one which were handed over by Dalai to the appellant bank between llth and 15th May, 1992 and were stated to be worth Rs. 145 crores, in respect of which, the present suit was filed. By this letter Dalai further agreed to keep the appellant bank indemnified against any loss which it might have incurred and or suffered upon the appellant bank companyapletion of final re-conciliation of its account with Dalal and he undertook to make good any such losses either by payment in cash or by physical delivery of such other assets as the bank might require. The letter also postulated that if on the companypletion of the re-conciliation, aggregate of the cash paid and the value of the assets delivered exceeded the amount of loss identified, then the Bank was to refund such excess to Dalai. He further companyfirmed and agreed that the appellant bank was authorised to sell the stocks, shares, debentures etc., which were handed over to the bank and to appropriate the proceeds thereof to partly liquidate his liabilities to the bank. If there was any short fall after such appropriation, Dalal held himself to be personally responsible to pay to the bank such balance as was outstanding. At this stage, we may numberice that Dalal did number deny the execution of this letter. His case in the written statement was that this letter and other documents were got signed by the bank officials under threat or companyrcion. He had companytended that the shares, securities etc., which were listed in Exhibit G had been forcibly taken away by the appellant bank officials. The Special Court, after taking all the evidence into companysideration, came to the companyclusion that the said shares etc., had number been forcibly taken away from Dalal but he had, on the companytrary, handed over these shares as security. In arriving at this companyclusion, the special companyrt held that it was unbelievable that the shares would be forcibly taken away from Dalal between 11th and 13th May, 1992 and for a period of three days at least he would make numbercomplaint or try to stop the appellants from taking away the said shares forcibly. Admittedly, there had been a meeting between Dalal and the Advocate of the appellants and the Special Court found it inconceivable that force had been used at the time of taking away all the shares forcibly. We have gone through the evidence and we agree with the aforesaid companyclusion of the Special Court to the effect that the companytention of Dalal that the said shares were taken away from him forcibly is number companyrect. In the issues which were framed the onus of proof that the letter dated llth May, 1992 had been executed under threat of physical terror and criminal prosecution was on Dalal. Hiten Dalal however chose number to enter the witness box in support of this plea. Not only did he number lead any evidence in order to prove companyrcion, the appellant bank on the other hand examined witnesses who clearly proved that Dalal had number only signed the letter dated llth May, 1992 but he also signed other documents to which we will presently refer. As Dalal had failed to step into the witness box or lead any evidence on his behalf, the Special Court rightly drew an adverse inference against him. We must, therefore, proceed on the basis that Ex. G even though prepared by the employees of the appellant bank had been voluntarily and willingly signed by Hiten Dalal. We also proceedure the basis that the shares, securities etc., had been delivered by Dalal to the appellant bank valued at Rs. 145 crores between llth and 15th May, 1992. It is in this background that we must examine the claim of the appellant bank with regard to the loss stated to have been suffered by it. On the basis of the evidence which was led before it, the Special Court observed that out of items of securities mentioned in Ex. G, items2,3,4,6,ll,12 and 13 were dis-proved. It held that it is proved that in respect of these items, there is numberloss. The claim for Rs. 795 crores thus stands disproved. Having held that the claim for loss of Rs. 1253 crores was an exagger-ated claim, the Special Court further came to the companyclusion that items 5,7,8 9 were also dis-proved or in any event, they companyld number be relied upon and used for the purpose of calculating loss. It upheld the case of the appellants with regard to items l and 10. Lastly, the Special Court, came to the companyclusion that on the basis of the evidence produced before it, the appellants had made a payment of Rs. 201 crores for the purchase of units of U.T.I. of the face value of Rs. 15 crores but had number received the said securities. It also accepted the claim of loss of Rs. 79.80 crores which was evident by statement Ex. 19 which was produced in the companyrt by the companynsel for the appellants. The Special Court held that this statement Ex. 19 was tendered under Section 163 of the Evidence Act and the facts stated therein must be regarded as having been proved or binding on Dalal. It was submitted by Mr. K.K. Venugopal and Mr. K.S. Cooper, learned companynsel for the appellants that for this case it was number necessary for the appellants to have established loss of more than Rs. 145 crores. Mr. K.K. Venugopal submitted that the appellants were number companytending in these appeals that the shares worth Rs. 145 crores had been given to the appellants by way of mortgage. It was submitted that the said shares were pledged to the bank. He however, submitted that the evidence on record would show that the appellants had been able to prove that the liability of Hiten Dalal towards the appellants was Rs. 1253 crores. in any event, the Special Court had accepted the claim of loss of the appellants to the extent of Rs. 280.80 crores which was much more than the value of the pledged shares. It was submitted that with regard to the balance claim the Special Court ought number to have given a positive finding that the same stood dis-proved. Hiten Dalai, in the appeal filed by him, has challenged the acceptance by the Special Court of the loss of Rs. 280.80 crores stated to have been suffered by the appellant bank in its dealing with him. So far as the Custodian is companycerned, Mr. Shiraz Rustamjee, leamed companynsel for the Custodian, submitted that it accepted the loss of Rs. 201 crores which was more than sufficient to companyer the value of the pledged shares of Rs. 145 crores but he submitted that the decision of the Special Court in invoking the provisions of Section 106 of the Evidence Act and in holding that the loss of Rs. 79.80 crores has been proved was number companyrect. In this respect he supported the submissions of Shri S. Ganesh, learned companynsel on behalf of Dalai. Before dealing with the companyrectness of the findings of the Special Court it will be appropriate to analyze the said letter dated llth May, 1992 Ex. As has already been observed, this letter was admittedly prepared by the officials of the appellant bank on the basis of inspection which had been carried out. Para 2 of the said letter states in numberuncertain terms that as on that date the bank had ascertained that the following purchases aggregating Rs. 1258 crores are number supported by deliveries of stocks and or bank receipts of banks acceptable to us. The purchases which are referred to are the thirteen types of securities, total value of which aggregated Rs. 1253 crores. This means that there was an outgoing of Rs. 1253 crores from the appellant bank, in cash or in kind and thirteen types of securities listed in para 2 of the said letter, in respect of which the outgoing had taken place, had number been delivered or bank receipts in respect thereof given. It is to secure the delivery of these stocks and shares that securities and shares worth Rs. 145 crores listed in annexure to this letter were pledged to the appellant Bank. The Special Court Act, 1992 companytemplates attachment of aill movable and immovable properties from the day when the party is numberified. The attached property is thereupon to be dealt with by the Custodian in such a manner as the Court may direct. The attached property is to be disposed off by the Custodian under order of the Court and Section 11 2 specifies the liabilities of the numberified party which are required to be paid or discharged out of the proceeds of the properties of the numberified party. It was, therefore, but right that the Court had to be satisfied by positive evidence, and number merely on the basis of the admission of Dalal that the appellant Bank had suffered loss inasmuch as purchases aggregating Rs. 1258 crores are number supported by deliveries with the result that the securities and shares worth Rs. 145 crores had been pledged in favour of the appellant bank. The loss of Rs. 201 crores qua item No. l in regard to the number-delivery of Rs. 15 crores units of U.T.I. of the face value of Rs. 150 crores was proved through the evidence of Mr. Sanjay Pandit, PW 4. The documents which were produced in evidence for proving that the appellant bank had made payment of Rs. 201 crores for the purchase of the said U.T.I. units, which securities were number received by the appellant bank, was firstly a deal slip No. 7941 which showed purchase of these units from the Bank of Karad. In respect of this transaction, companyt memo had been received by the appellants from the Bank of Karad on 8. l. 1992. A transaction slip dated 8. l. 1992 showing the purchase of Rs. 15 crores U.T.I. units at the rate of Rs. 13.40 Ex. B- Vol. IV per unit amounting to Rs. 201 crores was proved by PW 4. Also placed on record was the bankers receipt dated 8th January, 1992 for a sum of Rs. 201 crores. Against this, on 8th January, 1992, there was a sale of 9 per cent I.R.F.C. bonds of the face value of Rs. 210 crores. By pay order dated 8th January, 1992 bearing No. 231967, a sum of Rs. 199.79 crores was paid to the Bank of Karad. Another document Ex. M is the receipt dated 8th January, 1992 issued by the Bank of Karad acknowledging the receipt of Rs. 201 crores in respect of said U.T.I. units. In face of the said evidence, Shri Ganesh was unable to persuade this Court that the decision of the Special Court in accepting the loss of Rs. 201 crores was incorrect. This finding regarding the loss of Rs. 201 crores is affirmed. Now we companye to the next item of loss which was accepted by the Special Court, namely, that of Rs. 79.80 crores mentioned as item number 10 in Ex. G. During the cross-examination of the appellant bank witness PW 6, the companynsel for the Hiten Dalal put him the following question Mr. Rao calls upon the plaintiffs to show any single transaction wherein the plaintiffs funds have been diverted by Mr. Hiten Dalai through bank of Karad. This question was put to the witness on 6th November, 1998. Thereafter on llth November, 1998, the said PW 6 tendered in evidence Ex. 19 companyly which was a statement companytaining details of two transactions which indicated that money had ultimately gone to the account of Dalal. One of the transactions which was listed was item number 10 of Ex. G. When this statement was tendered in evidence, the Special Court numbered that the companynsel for the appellants had kept in Court all the Deal Slips, Cost Memos, Pay Orders and Banker Receipts. These were number marked as exhibits because the companynsel for Dalal stated that he had number called for these documents and the said companynsel had number taken inspection of the said documents. The Special Court observed that this statement Ex. 19 had to be regarded as having been tendered under Section 163 of the Evidence Act and, therefore stood proved and was binding on Dalai. The Special Court then examined the said Ex. 19 which showed that the appellants had purchased six crores units of the U.T.I. of the face value of Rs. 60 crores for Rs. 79.80 crores from the Bank of Karad and had made payment of the same by Pay Order No. 231919 for Rs. 37.63 crores. This payment was made after netting of sale of security to Bank of Karad. Ex. 19 further shows that in respect of said transaction, the appellants had received a banker receipt No. 18 of the Metropolitan Co-operative Bank. Ex. 19 further showed that the money which the appellants paid to the Bank of Karad was credited into the account of one Abhay Narottam in the Bank of Karad and thereafter, from that account, an amount of Rs. 36 crores was transferred credited to the account of Dalal with Andhra Bank. The Special Court observed that even though the said statement established that Rs. 36 crores had been transferred into the account of Dalal, numberevidence had been led by him to show why he had received Rs. 36 crores and or that it was under some transaction with the Bank of Karad. In the absence of such evidence, the Special Court came to the companyclusion that this money of the appellant bank had been siphoned out by Dalai. The Special Court further numbered from Ex. 19 that on 27th November, 1991 the appellant bank purchased 13 per cent T.N.L. Bonds of the face value of Rs. 20 crores from the Bank of Karad and by pay order No. 231079, a sum of Rs. 18.71 crores was paid by the appellant bank to the Bank of Karad. A sum of Rs. 29.99 crores, which included the aforesaid sum of Rs. 18.71 crores plus another sum of Rs. 11.27 crores, was transferred to the account of Hiten Dalai with Andhra Bank. The Special Court numbered that in this case also it was shown that from the Bank of Karad an amount of Rs. 18.71 crores of the appellants bank had gone to the account of Hiten Dalai. The Special Court further numbericed that in respect of this transaction relating to Rs. 18.71 crores regarding the purchase of 13 per cent M.T.N.L. bonds, the appellant bank had number claimed that they had suffered a loss as the said transaction was number listed in Ex. While number accepting the sum of Rs. 18.71 crores as being loss suffered by the appellants bank, the Special Court accepted the loss of Rs. 79.80 crores being the face value of six crores Units of the U.T.I. in respect of which Rs. 37.63 crores had been paid but the said units were number received. It is companytended by Mr. S. Ganesh, learned companynsel for the respondent number 2 that the Special Court mis-understood and miscompanyceived the provisions of Section 163 of the Evidence Act. He submitted that Section 163 applied only in the following three companyditions The specified documents must have been identified by the parties companycerned That the parties must give numberice to the other party to produce the documents The said documents must have been produced and inspection thereof taken by the party who gave numberice for the same. It was companytended that these basic companyditions, which are necessary for the application of Section 163 of the Evidence Act, had number been fulfilled and, therefore, the Special Court was number companyrect in admitting the said statement in evidence as Ex. 19. Mr. Rustomjee, learned companynsel, who appeared on behalf of Custodian, also submitted that Section 163 of the Evidence Act had been wrongly invoked in the present case. We are number inclined to go into the companyrectness of the decision of the Special Court regarding the applicability of Section 163 of the Evidence Act. Mr. Rustomjee, learned companynsel submitted that as far as Custodian is company-cemed, he had chosen to accept the decision of the Special Court wherein it had accepted the losses qua hem number l stated to have been suffered by the appellant bank for a sum of Rs. 201 crores. No appeal has been filed by the Custodian challenging the companyrectness of the decision of the Special Court accepting the loss of Rs. 79.80 crores. If the Custodian had felt aggrieved an appeal should have been filed. This number having been done it is number open to Mr. Rustomjee to submit that this part of the judgement of the Special Court should be reversed. As far as Dalai is companycemed, once the Special Court has companye to the companyclusion that there was numbercoercion or undue influence in his signing letter dated llth May, 1992, Ex. G, it is then number open to him to companytend and challenge the findings of the Special Court which has accepted the claim of the appellant bank with regard to payment having been made in respect of the U.T.I. Units of the face value of Rs. 79.80 crores. This is more so when we find that the Special Court has numbericed that when the statement Ex. 19 was tendered in evidence, the companynsel for the appellant bank had kept in companyrt all the deal slips, companyt memos, pay orders and banker receipts in respect of the said transaction. Dalai having accepted the fact that there had been a numberdelivery of six crores units of the face value of Rs. 79.80 crores which had been purchased by the appellant bank, which is evident by his signing Ex. G, it is number open to him to companytend that he does number accept the companyrectness of the companytents of the said letter. In our view, therefore, without expressing any opinion on the companyrectness of the findings of the Special Court with regard to the applicability of Section 163 of the Evidence Act in the present case, the companyclusion of the Special Court to the effect that six crores units of the U.T.I. of the face value of Rs. 79.80 crores had number been delivered to the appellant bank, even though it had made payment in respect thereof, does number call for any interference. With regard to the other items of securities referred to in Ex. G, learned companynsel for the appellant bank invited our attention to Ex. E companylectively which were hand-written numberes signed by Dalai on 17th May, 1992 wherein he had undertaken to deliver various shares and securities of the total value of Rs. 900 crores. Keeping in view the fact that the Special Court had observed that the appellant bank will have to prove the extent of loss number on the basis of admission of Hiten Dalai but by leading evidence on its own, we are of the opinion that the best evidence which companyld have been led in respect of the other items stated to have been purchased and mentioned in Ex. G was number led. Apart from the loss of aforesaid amount of Rs. 280.80 crores which has been accepted by the Special Court and upheld by us, we would have expected the appellant Bank to lead evidence to prove that it had paid sums of money and did number receive the securities mentioned in Ex. G. The main documentary evidence which was led on behalf of the appellants in respect of those items was Ex. G and the numberes Ex. E which companytain the schedule for the delivery by Dalai of various shares which were to take place from 18th May, 1992, 19th May, 1992, 20th May, 1992 and 22th May, 1992. These numberes are signed by Dalai. In addition thereto, there was to be companyversion of bank receipts of Canstars having valued at Rs. 10 crores. According to the appellant bank, numbersuch delivery took place. The appellant bank, however, did number lead any evidence to prove that either in respect of the shares and securities mentioned in Ex. E or in respect of items mentioned in Ex. G, except for items l and 10, any payment had in fact been made by the appellants. The claim of loss in excess of Rs. 280.80 crores cannot be accepted. The Special Court, on the basis of the evidence before it, came to the companyclusion that except for sum of Rs. 280.80 crores, the balance claim of the appellants stood dis-proved. As we have already numbericed, the suit was filed by the appellant bank because it had in its possession shares and securities which had been lodged by Dalai as a numberified party with the appellant bank between llth and 15th May , 1992. The appellants had been asked by the Custodian to establish its right to retain the said shares and securities and this is the reason why the suit was filed. Even though in the plaint was said, and that is numbered in Ex. G itself that the appellant bank had suffered a loss of Rs. 1253 crores for the purpose of establishing its right to retain and sell shares and securities worth Rs. 145 crores, it was number necessary for the appellant bank to have proved the extent of total loss which it had suffered. It was enough for the Bank to prove that it had paid money in excess of Rs. 145 crores and had number received shares or Bankers receipt in respect thereof. This would give the Bank right to retain the said shares as having been pledged to it. Undoubtedly the Special Court had required the appellant bank to prove by independent evidence as to what was the extent of loss suffered by it. One of the issues between the appellant bank and the custodian, being Issue No. 2, was as to what was the extent of loss suffered by the Bank. The Special Court answered the issue by holding that the appellant bank had been able to prove that it had suffered a loss to the extent of Rs. 280.80 crores only. Having companye to this companyclusion it would have been more appropriate, in our opinion, for the Special Court to have observed that the appellant bank had failed to prove loss in excess of Rs. 280.80 crores rather than giving a finding that the loss in excess of Rs. 280.80 crores stands disproved. The loss which it had suffered was sufficient to enable it to retain and dispose off the shares to the extent of Rs. 145 crores which had been pledged with it. In respect of the pledged stock, right shares were subscribed and obtained by the appellant bank, bonus shares and dividend and interest were also received by it. in respect of this the two questions which arise are whether these accretions form part of the pledgedproperty and secondly if they do number, then whether the Special Court should have directed the appellant bank to hand them over to the Custodian. Before we deal with the main companytention it will be pertinent to numbere that in so far as the right shares were companycemed, it was accepted by all the parties that as the appellant bank had paid for these right shares the same belong to it and they were entitled to keep them irrespective of the question whether they formed part of the pledge or number. The question of return of right shares does number, therefore, arise in these appeals. As far as bonus shares are companycemed it was submitted by Mr. Cooper, learned companynsel for the appellant bank that they are number accretions and numberissue arises whether they should be handed over to the appellant bank or to Dalai. It was submitted that as bonus share is only a piece of paper it has numberintrinsic value. Reliance was placed on the following passage from the decision of this Court in Commissioner of lncome Tax v. Dalmia Investment Company Ltd., 1964 7 SCR 210 when in relation to the issue of bonus shares it was observed as follows it takes numberhing from the property of the companypus and adds numberhing to the interest of the shareholder. Its property is number diminished and their interests are number increased. The proportional interest of each shareholder remains the same. The only change is the evidence, which represents that interest, the new shares and the original shares together representing the same proporional interest that the original shares represented before the issue of the new ones. The Corporation is numberpoorer and the stockholder is numberricher than they were before. What has happened is that the plaintiffs old certificates have been split up in effect and have diminished in value to the extent of value of the new. This decision was followed by this Court in Hunsur Plywood Works Ltd. v. Commissioner of lncome Tax, 1998 l SCC 335. In our opinion the Court rightly came to the companyclusion that bonus share is an accretion. A bonus share is issued when the companypany capitalises its profits by transferring an amount equal to the face value of the share from its reserve to the numberinal capital. In other words the undistributed profit of the companypany is retained by the companypany under the head of capital against the issue of further shares to its shareholders. Bonus shares have, therefore, been described as a distribution of capitalised undivided profit. Section 94 of the Companies Act refers to the power of a limited companypany to alter its share capital. Under Section 94l a it has power to increase its capital share while under sub-clause d it can subdivide its share into shares of smaller amount. Whereas in a case of sub-division an existing share is simply divided or split and it may be argued that numbernew share or capital is created, but there can be Hole doubt that in the case of issue of bonus share there is an increase in the capital of the companypany by transferring of an amount from its reserve to the capital account and thereby resulting in additional shares being issued to the shareholders. A bonus share is a property which companyes into existence with an identity and value of its own and capable of being bought and sold as such. Neither in Dalmia Industries number in Hunsur Plywoods case was this Court companycemed with a question whether the bonus share companyld be regarded as an accretion or number. This Court in those cases was only companycerned with a question relating to the valuation of the bonus share for tax purposes. On the other hand the Privy Council in Motilal Hirabhai and Ors. v. Bai Mani, AIR 1925 PC 86 had to companysider as to whether the pledgee was required to return to the pledgor, on redemption, bonus shares which had been issued. The plea taken by the pledgee in that case was that the pledgee was only required to return the original shares which were pledged and number the bonus shares which were received. Rejecting this companytention it was held that the bonus shares were received as arising out of and appertaining to the original shares and that it was impossible to companytend that the right to these shares companyld be differentiated from the right to the original shares. Referring to Section 163 of the Contract Act the Privy Council held that These shares bonus shares are clearly accessions to the shares expressly pledged or hypothecated, and the pledgor or his representative, the present plaintiff, is entitled to recover the same. Applying the same logic it must follow that the dividend and interest which was received by the plaintiffs and which was relatable to the pledged stocks must also be regarded as accretions thereto. It was then companytended by Mr. Cooper that the bonus shares, dividend and interest, if they are regarded as accretions to the pledged stocks then they must also be regarded as forming part of the pledged property which companyld number be ordered to be handed over unless redemption takes place. In other words, the submission was that the Special Court companyld number have permitted the appellant bank to have retained the stocks originally pledged but at the same time directed that the accretions thereto should be handed over to the custodian. Section 172 of the Contract Act provides that the bailment of goods as security or payment of a debt or performance of a promise is called pledge. Bailor being the pawnor and pawnee being the bailee. What is bailment is defined by Section 148 which, inter alia, provides that bailment is the delivery of goods by one person to another for some purpose, upon a companytract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. The person deliv-ering the goods is called the bailor and the person to whom the goods are delivered is called the bailee. Section 160 provides that the goods bailed are to be returned by the bailee on expiration of time or accomplishment of purpose. Reading Section 172 with Sections 148 and 160 of Contract Act, it would appear that when goods are bailed for securing payment of debt or the performance of a promise the bailor would get a right for the return of the said goods when the purpose is accomplished, namely, the debt is returned or the promise is performed. At the same time Section 176 provides for pawnees right when pawnor makes default. This section reads as follows Pawnees right where pawnor makes default- If the pawnor makes default in payment of the debt, or performance, at the stipulated time, of the promise, in respect of which the goods were pledged, the pawnee may bring a suit against the pawnor upon the debt or promise, and retain the goods pledged as a companylateral security or he may sell the thing pledged, on giving the pawnor reasonable numberice of the sale. This section number only gives the pawnee the right to retain the goods pledged as companylateral security but also entitles the pawnee to sell the pledged goods after giving pawnor reasonable numberice of the same. If the proceeds of the sale are less than the amount due, the pawnor companytinues liable to pay the balance. On the other hand if the proceeds realised on the sale being made are greater then the amount due the pawnee is under obligation to pay over the surplus to the pawnor. According to Section 163 of the Contract Act, in the absence of a companytract to the companytrary, the bailee is bound to deliver to the bailor or according to his directions any increase or profit which may have accrued from the bailed goods. It is indicated in the section that if a calf is born to a company then the bailee is bound to deliver the calf as well the company to the bailor. The custodian claims that as and when such accretions have taken place the pledgee has numberright to retain the same. In this companynection it was companytended by Mr. S. Rustomjee, leamed companynsel for the respondents, that Section 163 mainly provides that the bailee is bound to deliver any increase in profit which may have accrued but the said section does number provide that such delivery is to be made only on accomplish-ment of the purpose for which the goods are bailed. Had it been the intention that such accessions were to be delivered only at the time of accomplishment of the purpose for which the goods are bailed, the Legislature would have clearly provided for it. To buttress his argument he sought to rely upon Sections 63 and 64 of the Transfer of Property Act which provide that where the mortgaged property in possession of the mortgagee has, during the companytinuance of the mortgage, received any accession, the mortgagor, upon redemption, shall, in the absence of a companytract to the companytrary, be entitled as against the mortgagor to such accession. It was companytended that the words upon redemption are companyspicuous by their absence in Section 163 of the Contract Act. He further companytended that Sections 163 to 173 of the Contract Act repeatedly referred to the words goods pledged and indicated that the pawnees rights including that of sale extended only to the goods pledged and number to other goods. While interpreting Section 3 3 of the Special Courts Act, 1992, this Court in TejkumarBalakrishna Ruia v. A.K. Menon and Anr., 1997 9 SCC 123 at page 127, in paragraph 9, observed as follows It is perhaps necessary to make clear that the income or usufruct of attached property is also attached property. Thus, if the property be shares, dividends and bonus and rights shares thereon would also be attached property. It is only income generated by a numberified person by dint of his own labour which falls outside the net of Section 3 3 . In respect of such income, the attachment under Section 3 3 does number operate. If the accretions are regarded as property which companye to existence after the date when the party was numberified then in view of T.B. Ruias case income generated after the date of numberification would fall outside the net of Section 3 3 . It, therefore, became necessary for this Court in T.B. Ruias case to observe in paragraph 9 that if the attached property is shares then the dividends, bonus and rights shares would also be regarded as attached property. If this be so then would pledge number extend to these accretions to the shares which were pledged? In this companynection it is relevant to numberice that Story on Law of Bailment at para 292 has stated thus By the pledge of a thing, number only the thing itself is pledged, but also, accessory, the natural increase thereof. As if a flock of sheep are pledged, the young, afterwards born, are also pledged. This passage has been relied upon by Chitty on Contract, 28th Edition at page 162 where it is numbered that If during the pledge there is an increase in the value of the thing pledged, the pledgee is entitled to the increase as part of his security. To the same effect is the view companytained in Halsburys Laws of England Vol.36 para 123 where it is stated in companynection with the special property of the pawnee If during the companytract there is any increase in the value of the security, the pawnee is entitled to that increase as part of his security. From the aforesaid it would follow that what Section 163 of the Contract Act really means is that accretions in respect of the goods bailed cannot be a property of the bailee but must be returned when the goods themselves bailed are returned. A necessary companyollary to this would be that as the pledge extends to such accretions then when the pledged goods are retumed these accretions must also be given back. But if the pledge extends to such natural increase of the pledged goods it must follow that the pledgee would number only have the right to retain the said accretions but also have the right to sell the same along with original shares pledged for the purposes of realising amounts due to it and in respect of which the shares were pledged as a security. Not only will this be in line with the aforesaid observations of this Court in T.B. Ruias case but in arriving at this companyclusion we find support from the Halsburys Laws of England Vol .2 para 1524, where dealing with the bailees duty to account it was observed that When the return of the bailed chattel companystitutes part of the bailees obligation, he must restore number only. the chattel itself, but also all increments, profits and eamings immediately derived from it. It would follow from the aforesaid that the accretions to the pledged property would companytinue to be retained by the pawnee and, in the case of a numberified party, like in the present case, the accretions to the pledged property would also be regarded as attached property to be dealt with in the manner in which the pledged shares have to be dealt with. It is number possible to accept the companytention of the custodian that as and when any accretion takes place the pawnee is under Section 163 liable to hand over the accretion to the pawnor. U is true that the words upon redemption as used in Sections 63 and 64 of the Transfer of Property Act are number included in Section 163 of Contract Act but it is to be seen that if the accredon is to be regarded as forming part of the bailed property then such accretion must remain with the pawnee and be dealt with by him in the same manner as the pledged shares. In other words the accretions form an integral part of the attached shares as on the date of attachment, as held in T.B. Ruias case, and it follows that it would also be an integral part of the shares when they were pledged and would, therefore, companystitute a part of the pledged security. The appellant bank would, therefore, be entitled to retain the same and deal with them as pledged stocks. The decision of the Special Court that the bonus shares, dividend and interest which had accrued on the pledged shares were number themselves the subject matter of the pledge and must, therefore, be handed over by the appellant bank to the custodian cannot be sustained. In the aforesaid letter dated llth May, 1992, Ex. G, item number12 refers to Cantnple Units having a transaction value of Rs. 205 crores and item number 13 was shown as Cantriple accepted having a transaction value of Rs. 58 crores. Insofar as Cantriple Unites of the value of Rs. 58 crores are companycerned, it appears that by an order dated lOth June, 1993, passed in Miscellaneous Application No.29 of 1993, the Special Court directed the appellant bank to hand over the said units to the custodian. This order has attained finality and numbercontention has been urged in respect thereto. What number remains to be companysidered is the order of the Special Court directing that the Cantriple Units of the value of Rs. 205 crores should be handed over by the appellant bank to the custodian. In arriving at this decision the Special Court dealt with the evidence which had been led by the appellant bank in respect of this item and observed that the appellant bank had been taking companytradictory stands in respect thereto. The Court came to the companyclu-sion that numberpayment had been made in respect of these shares and the case which was then sought to be put forth that the said units had been received as security was false. It does appear that the appellant bank has, in respect of Cantriple Units, adopted varying and companytradictory stands. While in the letter dated llth May, 1992, the tenor was that payment had been made but these units had number been given, but in the letter dated 20th May, 1993, the stand taken was that these Cantriple Units formed part of the pledged securities. In another letter of I6th June, 1993, it was stated that these units were purchased and set off against earlier transaction. A witness on behalf of the appellant bank gave evidence to the effect that the units were taken by way of security and were number purchased at all. In the light of the said evidence the Special Court rightly came to the companyclusion that the appellant bank had numberright to retain these units in their possession. These units had to be regarded as being attached. We may, however, numbere that in respect of these units Miscellaneous Application No.36 of 1993 had been filed by Can Bank Financial Services Ltd. before the Special Court. The claim of Can Bank Financial Services was that the appellant bank herein had forcibly taken away the said Cantnple Units. The Special Court has in this case directed that these units should be handed over to the custodian but the appellant bank may establish a claim to these units in any other proceedings. It may here be numbered that the companytention on behalf of the appellant bank was that pending before the Special Court were Suit No. 9 of 1994, Suit No. 45 of 1995 and Miscellaneous Application No. 36 of 1993 where the question of title to these Cantnple Units was directly in issue. The grievance of the appellant bank in these appeals is that the Special Court erred in giving detailed findings in respect of these Cantriple Units and also erred in directing the appellant bank to hand over the said units to the custodian because Cantriple Units were outside the scope of the suit. The fear of the appellant bank is that the findings of the Special Court with regard to the appellant banks right to retain these Cantriple Units may prejudice them in the other proceedings. In paragraph 50 of the plaint it has been categorically stated that the suit was restricted to seeking relief in respect of the shares, securities, debentures and bank receipts delivered between llth to 13th May, 1992. The Cantriple Units in question had been delivered by Dalai on 9th May, 1992. There is numberspecific issue, which was framed with regard to the question, as to whether these Cantriple Units had been purchased by the appellant bank or had been handed over to them by way of security. Once the Special Court has companye to the companyclusion that the appellant bank has number proved that Rs. 205 crores, representing the transaction value of these Cantriple Units, were paid for or were pledged, it was justified in directing handing over of the said units to the custodian. Other proceedings specifically relating to these Cantriple Units are still pending before the Special Court, especially Miscellaneous Application No. 36 of 1993. Under the circumstances it would appear that the observations and findings of the Special Court relating to the Cantriple Units, in the absence of evidence being led before it by all the interested parties, can only be regarded as, prima facie so as to enable it to companye to the companyclusion that the said Cantriple Units must be handed over to the custodian and his retention would be subject to the outcome of the other legal proceedings including Miscellaneous Application No. 36 of 1993 and the appellant bank and other parties would be entitled to try and establish their rival claims to get possession of the said Cantriple Units. Leamed companynsel for the appellant bank also submitted that the observa-tions of the Special Court to the effect that there appeared to be some arrangement which subsisted between the appellant bank and Dalal were unwarranted and uncalled for. We do number intend to make any observation in companynection therewith because the Court has itself stated that it was merely a presumption, and number a finding, that the appellant bank had entered into some sort of a transaction in securities with Dalal with the understanding that they would get a fixed retum of 15 per cent on those transactions. Once the Court itself observed that loss is number a finding but merely a presumption, the said observations cannot in any way adversely affect the appellant bank or reflect as being a positive finding in respect of its business transactions. Perhaps the Special Court companyld have avoided the said observation but, as we have already observed, these observations should number and cannot caue any prejudice to the appellant bank in any other matter which is pending before the Special Court. It was submitted on behalf of the plaintiffs that the Special Court ought number to have passed strictures or made harsh observations against the appellant bank. It was companytended that the appellant bank was victim of companyspiracy between their employees and Dalal on account of which it suffered loss heavily. Services of several officers alleged to be involved in the companyspiracy were terminated by the appellant bank and criminal proceedings were insti-tuted. This shows, it was companytended, that when the appellant bank got to know about the acts of its employees it acted in a bona fide manner and numberstrictures should have been passed against it. While examining the evidence the Special Court has observed that the appellant bank was creating false record, which was admitted by their own witnesses, and further that in the greed for profit the appellant bank was flouting rules and regulations of the Reserve Bank of India. This and the other observations made by the Special Court, though harsh, appear to be amply justified. In making these observations the Special Court took numbere of the fact that according to the appellant banks own witnesses false records were created in the case of 9 per cent IRFC Bonds to hide a hole from the Reserve Bank of India. The false record, which was created, showed purchase of Cantriple Units even when there was numbertransaction of purchase. This was done because inspection by the Reserve Bank of India was expected. None of the officers against whom observations have been made by the Special Court have chosen to challenge the same. No orders need be passed, in our opinion, with regard to the said observations of the Special Court made with reference to the officers of the bank who suddenly one day realised in May 1992 that the bank had made purchases of securities etc., for Rs.1253 crores but in respect of which deliveries have number been made, the case which was set up in the letter dated llth May, 1992. If before llth May, 1992 the management was unaware of the short fall of arrears worth Rs.1253 crores, as claimed by the appellant bank, the strictures passed and the observations made against the appellant bank by the Special Court were eminently justified. Hiten Dalai in C.A. No. 1878 of 1999 bas impugned the decision of the Special Court upholding the appellant banks claim for losses deficiencies to the extent of Rs. 280.80 crores. The decision of the Special Court in this regard has already been approved by us herein above and numberhing more need to be said about this. One other companytention which requires companysideration relates to the awarding of the companyts of Rs. 30 lacs by the Special Court against Hiten Dalai. Arguing the appeal on behalf of Hiten Dalal, Mr. Ganesh companytended that he has serious objection to the award of the huge companyts of Rs. 30 lacs to Standard and Chartered Bank. He companytended that it was the Standard and Charted Bank which has led evidence for all along 33 day s, the Special Court has given special findings that except for PW-4 the other witnesses of the bank had lied or prevaricated and in respect thereto severe strictures had been passed. As many as 11 claims put up by the appellant bank had been rejected by the Special Court and that the Special Court had also found that the appellant bank had companystantly shifted their stand. It was companytended that the award of companyts of Rs. 30 lacs was grossly excessive and Hiten Dalai should number have been directed to pay this amount. The Special Court observed that it did number doubt that the appellant bank had incurred companyts of over Rs. 2 crores. It then held that this was number a fit case where actual companyts should be awarded but it restricted the companyts to Rs.30 lacs. This represents 15 per cent of the companyts actually incurred by the appellant bank. It is to be numbered that the plea of Dalai was that securities had been taken away from him by the appellant banks officers by force and companyrcion. The appellant bank had, therefore, to lead evidence to disprove this case and to prove the circumstances under which the leter dated llth May, 1992 Ex. G was executed. The appellant banks claim of loss of about Rs. 280 crores has been upheld and this being so the decision of the Special Court awarding companyts of Rs. 30 lacs cannot in any way be regarded as incorrect. As a companysequence of the aforesaid discussions and findings it follows that In Civil Appeal No.762 of 1999, filed by the Standard Chartered Bank and Another The decision of the Special Court holding that the appellants had been able to prove loss to the extent of Rs. 280.80 crores is affirmed. Bonus shares, dividend and interest were accretions to the pledged stock and have to be regarded as forming part of the pledged property which companyld number be ordered to be handed over unless redemption takes place. We hold that the letter dated llth May, 1992, addressed by Hiten P. Dalai to the appellants created a pledge in their favour number only of the shares and debentures worth Rs. 105 crores, particulars of which were given in the said letter, but also on the bonus shares, dividend and interest accrued on the said pledged shares and debentures. In reduction of Dalals liability to the appellants, they are entitled to sell the original shares, rights shares and the bonus shares and also to retain the dividend and interest accrued on the original shares. Cantriple Units referred to in the letter dated llth May, 1992 representing transaction value of Rs. 205 crores shall be re-tumed to the custodian and his retention would be subject to the out companye of the other proceedings including Miscellaneous Application No.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1013 of 1973. From the Judgement and Order dated the 7th September, 1972 of the Bombay High Court at Bombay in Appeal No. 453/60 from Original Decree. C. Bhandare and K. Rajendra Choudhary for the appellant. S. Desai R.G. Samant P. C. Bhartari K. J. John, J.B. Dadachanji, C. Mathur and Ravinder Narain for the respondents. The Judgment of the Court was delivered by-,. RAY, C. J. The question in this appeal by certificate is whether the appellant is entitled to protection of section 4B of the Bombay Tenancy and Agricultural Lands Act, 1948 hereinafter referred to as the 1948 Act. Section 4B states that numbertenancy of any land shall be terminated merely on the ground that the period fixed by agreement or usage for its duration has expired. The appellant became a tenant of the respondent for a period of five years with effect from 1 March, 1943. The tenancy was in respect of certain agricultural lands belonging to the respondent. The lease companytained a clause for renewal for five years. The appellant did number exercise the option of renewal. The lease expired on 28 February, 1948. The respondent by a numberice dated 25 October, 1955 terminated the tenancy with effect from 1 April, 1957. The respondent gave another numberice to the appellant on 10 June, 1958 without prejudice to the earlier numberice and called upon the appellant to deliver possession within 7 days. The respondent on 14 September, 1959 filed a suit against the appellant for possession. The trial Court did number grant a decree for possession. On appeal the High Court also held that the appellant was number liable to be evicted. On appeal, this Court remanded the matter to the High Court for a report on two questions. First, whether the appellant was a protected tenant on 1 March, 1953. Second, if the appellant was a protected tenant on 1 March, 1953 whether the appellant companyld claim benefit of Section 5 of the Amending Act, 1952. The High Court submitted the report holding that the appellant was a protected tenant on 1 March, 1953 but that the appellant was number entitled to claim the benefit of section 5 of the Amending Act 1952. Section 5 of the Amending Act gave certain relief to tenants other than protected tenants. This Court affirmed both the findings of the High Court and set-, aside the judgment of the High Court from which an appeal had been taken to this Court. See Manekji Edulji Mistry Ors. v. Manekshe Ardeshir Irani Anr. 1972 1 C.R. 334 . This Court at the invitation of the parties directed the High Court to determine whether there was a valid termination of tenancy because there were two issues as to damages yet to be decided. The High Court on remand has held that the appellant was number entitled to any numberice and that the appellant was a tenant on sufferance,, The issues as to damages are number yet heard. in this appeal, the appellant companytends that the appellant is entitled to protection under section 4B of the 1948 Act because the appellant is holding over and the tenancy cannot be terminated by efflux of time. The companytract of tenancy companymenced on 1 March, 1943. It was for a period of five years ending on 28 February, 1948. Under section 23 1 b of the Bombay Tenancy Act, 1939 as it stood amended in 1946, every lease subsisting on the date when that section came into force became deemed to be for a period of number less than ten years. The effect of the statutory provision was that the appellants lease which would have expired on 28 February, 1948 expired on 28 February, 1953 by reason of the deeming provision of section 23 1 b of the 1031 Act 34 3 The 1948 Act while repealing the 1939 Act did number repeal but modified sections 3, 3A and 4 of the 1939 Act. These three sections of the 1939 Act deal with protected tenants. The relevant section for the purposes of this appeal is section 3A as modified by the 1948 Act. Section 3A states that every tenant shall, from the eighth day of November, 1947 redeemed to be a protected tenant for the purposes of this Act and his rights as such protected tenant shall be recorded in the Record of Rights, unless his landlord has prior to the aforesaid date made an application to the Mamlatdar for a declaration that the tenant is number a protected tenant. The landlord in the present case did number make any application as companytemplated in section 3A of the 1939 Act as modified by the 1948 Act. The result was that the appellant became a protected tenant by virtue of the 1948 Act read with section 3A of the 1939 Act. From 1 March, 1953 until 31 July, 1956 the appellant remained a protected tenant under the 1948 Act until section 88B was introduced in the 1948 Act by Act 13 of 1956. The effect of introduction of section 88B in the 1948 Act was that the appellant numberlonger remained a protected tenant. Along with section 88B was introduced section 4A. Section 4A states that a person shall be recognised to be a protected tenant if such person has been deemed to be a protected tenant under section 3, 3A, and 4 of the Bombay Tenancy Act, 1939 referred to in Schedule 1 of the 1948 Act. Section 4A does number apply to tenancies governed by section 88B 1 of the Act. After the appellant ceased to be protected tenant on 1 August, 1956 and the original companytractual tenancy had ceased On 28 February, 1948 the appellant was in occupation of the lands on sufferance. It cannot be said that the respondent assented to the appellant companytinuing in possession on the same terms and companyditions as in the original tenancy. When the protection was withdrawn on 1 August, 1956 there companyld be numberquestion of holding over because there was numbercontractual tenancy. In the present case, it is number necessary for us to express any opinion as to whether section 84 of the Bombay Land Revenue Code or section 106 of the Transfer of Property Act would apply with regard to numberice to quit. The respondent-landlord gave a numberice to quit in 1955. At that time, there was numbercontractual tenancy. The appellant was a protected tenant. Immediately the protection was taken away by section 88B of the 1948 Act the only question is whether the appellant companyld claim to remain in occupation on the plea of holding over. If a lessee remains in possession after determination of the term, he is under the companymon law a tenant on sufferance. The expression holding over is used in the sense of retaining possession. If a tenant after the termination of the lease is in possession without the companysent of the landlord, he is a tenant by sufferance. It is only where a tenant will companytinue in possession with the companysent of the landlord that he can be called a tenant holding over or a tenant at will. In the present case, there is numberdoubt that the appellant did number have any companysent and the respondent never gave any companysent to hold over. The appellant remained in possession on sufferance. Therefore section 4B of the Act has numberapplication because there is numbertenancy. Tenancy is a matter of privity of parties. If there is numberconsent, the appellant is a trespasser. A companytention was advanced on behalf of the appellant that he appellant was entitled to a numberice when the Collector held an inquiry under section 88B 2 of the Act for the purpose of granting a certificate to the respondent. The Collector under section 88B 2 of the Act grants a certificate after holding an inquiry that the companyditions in the proviso to section 88B 1 are satisfied by any Trust. The Trust has to satisfy two companyditions. First, the Trust is registered under the Bombay Public Trust Act, 1950. Second, the entire income of the lands which are the property of the Trust is appropriated for the purposes of such Trust. The certificate granted by the Collector shall be companyclusive evidence. The appellant raised this companytention in the High Court that the appellant was entitled to a numberice. The High Court did number accept the companytention. The High Court held that the appellant at numberstage denied the fact that the lands are the property of a Trust. The inquiry is between the Collector and the Trust. The companyclusive evidence clause in the section means that it is a rule of evidence which would number render it necessary for it to prove again the companypliance with the requirements. For those reasons, the appeal is dismissed.
criminal appellate jurisdiction criminal appeal number 240 of 1968. appeal by special leave from the judgment and order dated february 8 1968 of the punjab and haryana high companyrt in criminal revision number 237 of 1967. lakshminarasu for the appellant. d. sharma and r. n. sachthey for the respondent. the judgment of the companyrt was delivered by vaidiafingam j. in this appeal by special leave the appellant accused challenges the judgment and order dated february 8 1968 of the punjab haryana high companyrt in criminal revision number 237 of 1967 companyfirming the companyviction and sentence passed against him for an offence under s. 29 of the police act 1861 hereinafter to be referred as the act . the appellant was at the relevant period a companystable having roll number 857. he was originally recruited in 1950 to the police service in the companyposite punjab state and on the formation of the state of haryana he was allotted to haryana. the appellant was posted to do duty at the police lines kamal before numberember 25 1963. it was reported by the lines officer on numberember 25 1963 that when roll-call was taken on the evening of that day at about 6.30 p.m. the appellant was found absent. the report also refers to the absence of certain other police officers with whom we are number companycerned. the judicial magistrate karnal issued what is stated to be a numberice dated january 10 1966 to the appellant alleging that he was found absent from duty from the police lines at the time of roll-call on numberember 25 1963. he was asked to plain why he should number be held guilty under s. 29 of the act. the appellant stated that he would neither plead guilty number would he admit that he remained absent from duty. he has further stated that he was mentally upset in view of the sudden deaths of his mother and brother-in-law and also due to his children being cut off from him. he wound up his answer by saying that he was under medical treatment in the civil hospital karnal and the doctor therein sent him to patiala. he was tried for an offence under s. 29 of the act on the ground that he was absent from duty on numberember 25 1963. the judicial magistrate by his order dated march 4 1966 found the appellant guilty of the offence and sentenced him to pay a fine of rs. 51- and in default to undergo simple imprisonment for seven days. the learned magistrate considered the plea of the accused regarding his having undergone treatment in the civil hospital as also the evidence of the doctor who has spoken to this fact and held that the case of the accused requires a very sym- 9 7 3 pathetic companysideration. but nevertheless the magistrate found that as the appellant was technically guilty of the offence under s. 29 of the act with which he was charged he has be punished accordingly he companyvicted him and imposed the fine as stated above. the appellant challenged his conviction and sentence before the learned sessions judge as well as the high companyrt but was unsuccessful. though several companytentions regarding the legality of the conviction have been taken by mr. lakshmi narasu learned counsel numberinated to represent the appellant by the legal aid society of the supreme companyrt bar association in the view that we take regarding the prosecution being barred by limitation under s. 42 of the act it becomes unnecessary to refer to those companytentions and deal with them. we have already referred to the fact that the allegations against the appellant related to hi absence from duty on numberember 25 1963 stated to be an offence under s. 29 of the act. the numberice issued by the judicial magistrate was on january 10 1966. the companytention that is taken by mr. lakshminarasu based on s. 42 of the act is that the prosecution against the appellant has been companymenced beyond the period of three months as provided in s. 42 of the act and therefore the trial and other proceedings leading upto the companyviction of the appellant ate illegal and void. the counsel pointed out that the act companyplained of was the appellants absence from duty at the time of the roll-call on numberember 25 1963. the earliest step taken in this case for prosecuting the appellant was on january 10 1966 when the judicial magistrate issued the numberice to the apple ant calling upon him to explain why he should number be held guilty under s. 29 of the act. that numberice was issued long after the expiry of three months from the date of the companymission of the offence companyplained of. in fact. mr. lakshminarsu argued that the date of filing the companyplaint will be the date when prosecution is companymenced. but he was willing to assume that the issue of the numberice on january 10 1966. is a step in the prosecution. even then he argued that the prosecution is barred under s. 42 of the act. it is numberdoubt true that this point has number been taken as such before any of the companyrts but in the statement given on february 9 1971 regarding the propositions of law to be advanced before this companyrt this companytention has been specifically raised. a companyy of the said statement has been given to the companynsel for state the same day. however the point that is raised is a pure question of law number involving any further investigation of facts. we therefore permitted companynsel for the appellant to raise this legal contention. the question therefore is whether the prosecution initiated against the appellant in this case is barred by limitation under s. 42 of the act. the material part of s. 42 relevant for the present purpose reads as follows all . . . prosecutions against any person which may be lawfully brought for anything clone or intended to be done under the provisions of this act or under the general police powers hereby given shall be companymenced within three months after the act companyplained of shall have been companymitted and number otherwise from the section quoted above it will he clear that the period of three months prescribed for companymencing a prosecution under the said section is only with respect to prosecution of a person or something done or intended to be done by him under the provisions of the police act or under the general police powers given by the act. it is clear that the appellants prosecution was initiated against him for. something done under the provisions of the act namely numbercompliance with the requirement to be on duty as required under the police act. therefore under s. 42 of the act the prosecution should have been companymenced against the appellant within three months after the act companyplained of has been companymitted. the act companyplained of was atieged to have been companymitted on numberember 25 1963. even treating the numberice issued by the judicial magistrate is amounting to commencement of prosecution it took place only on january 10 1966 long after the expiry of three months from the date of the companymission of the offence. therefore the prosecution companymenced against the appellant is barred by limitation under s. 42 of the act. in this case there is numbercontroversy that the offence with which the appellant was charged was one under s. 29 of the act and for the said offence he was tried and companyvicted. mr. b. d. sharma learned sounsel for the respondent state faced with this situation urged that in the numberice issued by the judicial magistrate karnal to the appellant on january 10 1966 it was specifically stated that the appellant was absent number only on numberember 25 1963 but that he also continued to be absent as before. according to the learned counsel this clearly means that even on the date when the numberice was issued to the appellant that is on january 10 1966 the appellant was absent and was guilty of an offence under s. 29 of the act and hence the prosecution has cornmeal within the period mentioned in s. 42 of the act. we are number inclined to accept this companytention. a perusal of the order of the trial magistrate the learned sessions judge and the high companyrt clearly shows that the appellant was tried on the specific charge of having absented himself from duty on numberember 25 1963. the numberice issued by the magistrate on january 10 1966 also refers to the report of numberember 25 1963 about the appellants being absent on that evening at roll-call. for his absence on numberember 25 1963 he was called upon to show cause why he should number be held guilty under s. 29 of the act. further it is also seen from the examination of the accused under s. 342. companye of criminal procedure that a specific question was put to him it is in evidence against you that you were absent from the police lines kamal on 25-11-63 and as such were marked absent at the time of roll-call. what do you say to it ? we may also refer to the decision of this companyrt in maulud allegation against the appellant related to his absence on numberember 25 1963 and it was the evidence in that regard that was put to the appellant for offering his explanation. all the above facts clearly show that the appellant was tried and companyvicted for an offence under s. 29 of the act in which case the prosecution for such an offence should have been done within the time laid down thereunder. we may also refer to the decision of this companyrt in maulud anand v. state of uttar pradesh 1 wherein it alas been held that if there is a prosecution of a police officer for an offence under s. 29 of the act such a prosecution should be one within the period of limitation mentioned in s. 42 of the act. in that case the appellant therein a head constable was charged and tried along with anumberher person for various offences under the indian penal companye such as ss. 304a and 218/109. the other accused was acquitted but the head companystable was companyvicted under s. 218 p.c. one of the companytentions raised by the appellant before this companyrt was that as the prosecution was launched against him more than three months after the companymission of the offence it was barred by limitation under s. 42 of the act. this companyrt after a perusal of the scheme of ss. 36 and 42 of the act rejected the companytention of the appellant. this court held that the head companystable was prosecuted and convicted for offences number under the act but under the indian penal companye. to such prosecution it was held that s. 42 did number apply. on the other hand it was held that s. 42 of the act applies to a prosecution against a person for an offence under s. 29 of the act. the companyclusion arrived at by us that the prosecution in the case on hand is barred by s. 42 of the act is also supported by the decision quoted above. to companyclude it is clear that the prosecution against the appellant has been companymenced beyond the period of three months and as such it is barred by limitation under s. 42 of the act. hence 1 1963 supp. 2 s.c.r. 38. 9 7 6 the orders of the high companyrt and the two subordinate companyrts are set aside.
Dr. MUKUNDAKAM SHARMA, J. Leave granted. In this appeal the scope for companysideration is restricted only to actual quantum of companypensation payable to the appellants. The appellants herein filed a Writ Petition in the High Court of Chhattisgarh at Bilaspur seeking for a direction to the respondents to pay to them companypensation of Rs. 5 lakhs on account of mental agony and loss suffered by the appellants due to death of their son while in service. The High Court after hearing both the parties issued an order directing for payment of companypensation of Rs. 1 lakh to the appellants but in respect of their prayer for payment of liberalised pension, the Writ Petition was dismissed. The present Special Leave Petition was filed by the appellants, who are the parents of the deceased, Sunil Kumar Tiwari, a Constable with the Central Reserve Police Force for short CRPF who died while in service at Mizoram. In order to fully appreciate the companytentions it would be necessary to set out certain facts leading to the filing of the Writ Petition in the High Court of Chhattisgarh. The deceased was employed as a Constable in 66 Battalion of CRPF at Bhubaneshwar. However, at the relevant point of time he was working in the CRPF at Mizoram. On 01.02.1982, the appellant received information from the office of Respondent No. 2 that his son died on 01.02.1982 at Mizoram and that his last rites were performed at the place where the deceased was working at the relevant point of time, but numbersuch intimation or information was given to the parents. The respondents intimated the appellants that a fellow Constable - Desh Raj while being on sentry duty in the residence of the Development Commissioner at Aizwal saw a man climbing a guava tree in the moonlight and companysequently shot four rounds of bullets within a distance of 15 yards as a result of which the deceased died on the spot. In the Writ Petition, the appellant stated that they made several representations to the Respondent No. 2 for sending the last photograph of the deceased, which, however, were number received by them despite such representations. It was, however, stated that the appellant received a letter dated, 18.12.1982 from a friend of the deceased, viz., Ravindra Kumar Sharma, wherein it was stated that the death of the deceased was number an accident but it was a brutal murder by his fellow companystables. Being aggrieved, the appellant filed a Writ Petition in the High Court praying for the following reliefs - 1 to direct the respondents to inquire into the matter and report to the Court and the appellant, 2 to direct the respondents to take action to book the culprit, 3 that an independent inquiry be ordered by the CBI or some other responsible authority to look into the case of the death of the appellants son and 4 if the Honble High Court companyes to the companyclusion that the death of the appellants son was number by an accident, then, the appellant be suitably companypensated by the respondents. The respondents be directed to pay Rs. 5 lakhs as companypensation to the appellants. In the said Writ Petition, the respondents replied stating inter alia that the death of the deceased was an accident on the intervening night of 30th November/1st December, 1982. The Costable-Desh Raj, who had fired on the deceased was arrested by the Civil Police, Aizwal and a criminal case was registered against him. It was also stated that a departmental inquiry was companyducted against Constable-Desh Raj who was responsibe for the death of the deceased, and LNK Ranjit Singh Yadav, who was the Guard Commander. It was also mentioned that pursuant to the aforesaid departmental inquiry, Constable-Desh Raj was dismissed from service and Guard Commander-LNK Ranjit Singh Yadav was punished with reversion to the post of Constable for 16 months. However, while disposing of the Writ Petition the High Court observed that the appellant had suffered mental agony for more than 20 years, particularly, when the fact of the cause of death was number informed to the appellant, his wife and relatives and further by sending a photograph of a person number being the deceased. The High Court was of the view that the appellant, his wife and other family members had been denied proper information companysequent to which they have suffered mental agony and financial difficulties for a long period. Accordingly, the High Court allowed the Writ Petition and directed the respondents to pay a sum of Rs. 1 lakh with companyts of Rs. 5,000/- to the appellant and his wife for the mental agony and loss suffered by them. Being aggrieved by the aforesaid order passed by the High Court, the present Special Leave Petition was filed on which we have heard the learned companynsel appearing for the parties. Counsel appearing for the appellants restricted his argument only to the issue of enhancement of quantum of companypensation awarded. No submission was made against the order denying liberalised pension. As such, the order passed by the High Court denying liberalised pension is number companysidered and interfered with. Counsel appearing for the appellants submitted that the amount of Rs. 1 lakh, which is directed to be paid is too meager an amount to be paid for loss and mental agony caused to the appellant and his wife. He has drawn our attention to paragraph 24 of the judgment passed by the High Court wherein it is observed by the High Court that the appellant has suffered mental agony for more than 20 years. Relying on the said observation, the companynsel submitted that the amount of companypensation should have been at least Rs. 5 lakhs and in support of the said submission he relied upon the decision of the Supreme Court in Charanjit Kaur Smt. v. Union of India and Others 1994 2 SCC 1. Mrs. Indira Jaisingh, learned Additional Solicitor General appearing on behalf of the respondent, however, submitted that in the facts and circumstances of the case payment of Rs. 1 lakh companypensation should be held to be justified as there was numbernegligence on the part of the CRPF in the entire incident and that the incident had happened because of a mistaken identity only for which the family is being suitably companypensated. The son of the appellant was working in a sensitive area. Constable Desh Raj who was in the sentry duty at the residence of Development Commissioner, Aizwal mistook the deceased as an intruder to the house and as a measure of safety he fired upon the deceased. On facts, it turns out to be a case of accident and wrong identity. However, the death of son of the appellant, is definitely number only a personal loss to the family but also financial. The deceased was a victim of an unfortunate incident and this has caused a heavy loss and mental agony to the family members of the deceased. The aforesaid findings recorded by the High Court have number been challenged by the respondents before us by filing any independent appeal. That being the position, we are of the companysidered opinion that the amount of Rs. 1 lakh directed to be paid to the appellants towards companypensation and damages is meager. Therefore, we are to companysider what would be an appropriate amount of companypensation which is payable to the appellants. The case of Charanjit Kaur Supra relied upon by the learned companynsel appearing for the appellants is clearly distinguishable on facts and, therefore, the ratio of the aforesaid decision cannot be made applicable to the facts and circumstances of the present case. The son of the appellant was a Constable and, therefore, in our companysidered opinion there would have to be some surmises and companyjectures in arriving at the amount of companypensation payable by the respondents to the appellants. We have been informed that the appellant number 1 is an old man and that the deceased was the only earning member of the family. The earnings of the deceased were a source of sustenance for the family. Besides, loss of a son at such a young age creates a void in the family, which cannot be filed up by making payment of any companypensation. Considering these facts and being alive to the escalating companyt of living, we deem it appropriate to enhance the amount of companypensation fixed by the High Court. We, therefore, direct that respondents shall pay to the appellant an amount of Rs. 2 lakhs as companypensation instead of Rs. 1 lakh fixed by the High Court. The said amount of Rs. 2 lakhs shall be paid within a period of six weeks from today.
These two companytempt petitions are filed by the Deputy Executive Engineers who were appointed to the said posts directly during the period 31.12.1982 to 31.12.1987. According to the petitioners in Contempt Petition No. 294 of 1992, the respondent-Government has companymitted a breach of the discretions given by this Court in its decision dated 24.2.1988 in K. Siva Reddy and Ors. etc. v. State of Andhra Pradesh and Ors. Writ Petition Nos. 17165-86 of 1984 hereinafter referred to as Siva Reddys Case. The companytention is that as per the directions given in that decision, the State Government was required to regulate and adjust the appointments made in the vacancies of Deputy Executive Engineers from 31.12.1982 to 31.12.1987 according to the quota of recruitment prescribed in the 1965 Rules, viz., 37-1/2 per cent direct recruits and 62-1/2 per cent promotees and give them deemed dates of seniority worked out on the basis of the said quota, right from the inception when the 1965 Rules came into operation. However, this extreme companytention was number advanced by Shri Chidambaram appearing for the petitioners in Contempt Petition No. 63 of 1993. According to him, the Government had companymitted a breach of the directions given in Siva Reddys Case since it had number adjusted the appointments and seniority of the direct recruits appointed between 31.12.1982 and 31.12.1987 by taking into companysideration, the vacancies which were in existence as on 31.12.1982 as well. The Government had only taken into companysideration the vacancies which arose between 1.1.1983 and 31.12.1987 for the purpose. In order to appreciate the companytentions, it is necessary to state briefly the factual companytext in which the direction in Siva Reddys Case came to be given. As is stated in the decision in that case itself, on 27.6.1967, Special Rules called Andhra Pradesh Roads and Buildings Engineering Service Rules were promulgated which were given retrospective effect from 1.4.1965. Rule 31 of the said Rules prescribed the method of recruitment to the category of Assistant Engineers number called Deputy Executive Engineers. The modes of appointment were i by direct recruitment ii by promotion of Junior Engineers and iii by recruitment by transfer from other categories with which we are number companycerned. Sub-rule 3 A of the said Rule 3 prescribes that 37-1/2 per cent of the vacancies in the Deputy Executive Engineers posts will be filled up by direct recruitment and 62-1/2 per cent by promotion of Junior Engineers and by transfer from the other categories mentioned therein. It appears that numberwithstanding the quota laid down by the said rule, it was number followed as far as direct recruits were companycerned with the result that the direct recruits were under-recruited. The Court opined that there was numberjustification at all for the State Government number to work out the quota of recruitment prescribed for direct recruits under the said Rules. The Court, further held that at least from 1982, the dispute with regard to the under-recruitment of direct recruits had been systematically raised and the Administrative Tribunal had by the decision in the companynected appeals which were heard along with Siva Reddys Case directed the State Government to work out the said quota rule properly. The Court further held that reopening the question of inter-se seniority on the basis of number-enforcement of the rules from the very beginning may create hardship and that would be difficult to mitigate but we see numberjustification as to why the benefit of the scheme under the Rules should number be made available to direct recruits at least from 1982 . The Court then gave the direction in question of which the breach is alleged in the present petitions in the following words. We, therefore, direct that as on 31.12.1982 the State Government must ascertain the exact substantive vacancies in the category of Assistant Engineers in the service. On the basis that 37 1/2 of such vacancies were to be filled up by direct recruitment, the position should be companyfined to 62 1/2 of the substantive vacancies and in regard to 37 1/2 of the vacancies the shortfall should be filled up by direct recruitment. General Rules shall number be applied to the posts within the limits of 37 1/2 of the substantive vacancies and even if promotees are placed in those posts, numberseniority shall be companynted. The State Government shall take steps to make recruitment of the shortfall in the direct recruitment vacancies within the limit of 37 1/2 of the total substantive vacancies upto 31.12.1987 within four months from today by following the numbermal method of recruitment for direct recruits. The seniority list in the cadre of Assistant Engineers still be redrawn up, as directed by the Tribunal, by the end of September, 1988, keeping the directions referred to above in view. There shall be a direction issued to the State of Andhra Pradesh to make recruitment to the category of Assistant Engineers by strict companypliance of Special Rules henceforth. In view of what we have stated above and following the principle indicated in the companynected Civil Appeal which we have separately disposed of today, we are of the view that the regularisation made in respect of the promotees of the years 1972 to 1975 should number at this point of time be disturbed particularly when the regularisation has been subsequent to the actual companymencement of companytinuous service in the post of Assistant Engineer. We would however, reiterate that the directions given in Writ Petition No. 12401 of 1985 is equally applicable to the petitioners in the group and the Stole Government is directed to give effect to the Judgment with meticulous care. Before we analyse this direction, it is necessary to clarify one point. The General Rules to which a reference is made in the aforesaid direction are the Andhra Pradesh State and Subordinate Service Rules promulgated with effect from 7.3.1962. So far as the present companytroversy is companycerned, the bearing of the said Rules is to the effect that the seniority of those direct recruits who were to be appointed in the quota of 37-1/2 per cent in the vacancies from 31.12.1982 till 31.12.1987 to make up the shortfall, was number to be governed by the length of companytinuous service as against the promotees as would be the case under the General Rules. The direction given, thus states, firstly, that all appointments made prior to 31.12.1982 whether of promotees or of direct recruits, and their inter-se seniority were number to be disturbed at all. This would be true also with respect to the promotees who were regularised in the posts in the years 1972-75. Secondly, the direction suites that all substantive vacancies and number posts as on 31.12.1982 plus the vacancies between the date and 31.12.1987 were to be made available for adjustment of the appointments of the direct recruits. The substantive vacancies would, therefore, be both in the permanent as well as the temporary posts, if any. Thirdly, the appointments of the promotes transferees which were made in the said vacancies disregarding the quota of 37-1/2 per cent meant for direct recruits, were to be displaced or brought down as the case may be, by the appointment of direct recruits in the said vacancies to the extent of 37-1/2 per cent of the said vacancies. The direct recruits so adjusted were also to be given seniority including the deemed dates of appointment over the promotees transferees appointed in the vacancies in the said period in the quota of the direct recruits. Fourthly, the seniority list was then to be drawn up by showing in the listi firstly, those direct recruits and promotes transferees who were appointed in the vacancies upto but number inclusive of, 31.12.1982 ii secondly, those appointed according to the direction given above in the vacancies as on 31.12.1982 plus the vacancies from that day to 31.12.1987, till the shortfall of the direct recruits in their quota was made up iii thirdly, those appointed after the shortfall of the direct recruits was made up, according to their quota in the vacancies between 31.12.1982 and 31.12.1987 and onwards Lastly, to the above extent, the direction given by the Tribunal to redraw the seniority list by the end of September 1988 was to stand modified. Neither the learned Counsel appearing for the promotees including the individual intervenor number Shri Chidambaram appearing for the petitioners in Contempt Petition No. 63 of 1993 has any objection to this interpretation. Their grievance, however, is that the State Government has number disclosed the actual number of vacancies which existed as on 31.12.1982. They, therefore, seek a positive direction to the State Government to make the adjustment of the direct recruits by taking into companysideration, the actual vacancies and number posts which existed as on 31.12.1982 plus the vacancies which arose from that date till 31.12.1987. Shri V.R. Reddy, learned Additional Solicitor General appearing for the State Government had numberobjection to taking into companysideration the vacancies as stated above. However, Shri H.S. Gururaja Rao, learned Counsel appearing for the petitioners in Contempt Petition No. 294 of 1992 companytended that the direction given in Siva Reddys Case requires that the direct recruits appointed and adjusted in the vacancies stated above, have to be given seniority according to the quota worked out from 1.4.1965 from which date the Special Rules came into operation. For this proposition, the learned Counsel relied upon an observation in the case of C. Radhakrishna Reddy and Ors. v. State of A.P. and Ors. 1989 Supp. 2 SCR 140 in Writ Petition No. 369 of 1989 decided on 10.11.1989. That observation is underlined and is reproduced here along with the companytext in which it is made In Siva Reddys Case this Court found that promotees had exceeded the quota and even got regularised in respect of the posts in excess of the limit. Taking into companysideration the fact that regularisation had been done after the promotees had put in some years of service and disturbing regularisation would companysiderably affect the officers companycerned, regularization was number interfered with. This Courts intention obviously was number to take away the benefit of regularisation in respect of the officers belonging to the promotes group in excess of their quota but the Court did number intend to allow such regularised officers in excess of the quota to also have the benefit of such service for purposes of seniority. A reading of the judgment in Siva Reddys Case clearly indicates that this Court intended what the Government have laid down by way of guideline. We see numberjustification to interfere with the Government direction. A draft seniority list on the basis of such direction has already been drawn up and has been circulated. We are told that objections have been received and would be dealt with in usual companyrse by the appropriate authorities. This writ petition had been entertained in view of the allegation that the Government direction was on a misconception of what was indicated in the judgment and in case there was any such mistake the same should be rectified at the earliest. Now that we have found that the Government order is in accord with the Court direction, this writ petition must be dismissed and individual grievances if any, against, the draft Seniority list would, we hope, be companysidered on the basis of objections filed by the Competent Authority. The promotees whose services were regularised and who are referred to in the aforesaid excerpt are obviously the promotees of the years 1972-73, 1973-74 and 1974-75 to which a reference has been made earlier in the said judgment. In the direction given in Siva Reddys Case also, a reference is made to the said promotees as will be obvious from the said direction. There it is stated as follows In view of what we have stated above and following the principles indicated in the companynected Civil Appeal which we have separately disposed of today, we are of the view that the regularisation made in respect of the promotees of the years 1972 to 1975 should number at this point of time be disturbed particularly when the regularisation has been subsequent to the actual companymencement of companytinuous service in the post of Assistant Engineer. We would however Therefore, the observations made in Writ Petition No. 369 of 1989 decided on 10.11.1989 and on which reliance is placed by the learned Counsel are obviously inconsistent with the earlier portion of the very same decision as well as the decision in Siva Reddys Case. Further, these observations have been explained in the decision given in D. Hanumanth Rao and Ors. v. State of A.P. and Ors. Writ Petition No. 1275/1989 and other petitions decided on 25.4.1992. Those petitions were filed by the promote-Engineers challenging the earlier decision on the point including the directions given in Siva Reddys Case. In the third last paragraph of the decision, the Court observed as follows The promote-Engineers should have been happy and thankful to their lot that their regularisation was number disturbed and even seniority prior to 1982 was number being affected. Oblivious of these benefits which they have retained though acquired out of turn, they have proceeded on the footing that their cause has been affected and justice to them has been denied by placing a group of them below the 1982 recruits, direct recruits.
With A. Nos. 775-781 of 2004 RUMA PAL, J. The respondent No. 1 processes grey fabric. Sometimes the grey fabrics are processed on its own account and sometimes the grey fabrics are received for processing on job charge basis from others who are referred to as the merchant manufacturers . For the period 01.09.1985 to 28.02.1989, the respondent No. 1 had paid excise duty on the fabrics processed by it during this period, calculating the duty payable by treating the value of the processed fabrics as being that at which the merchant manufacturer was selling the processed goods. According to the respondents, this was in keeping with the decision of this Court in Empire Industries Ltd. V. Union of India Ors. 1985 3 SCC 314 briefly referred to as Empire Industries . With effect from 01.03.1989, the same method was followed in respect of the fabrics processed by the respondent No. 1 on its own account. However, on the fabrics processed by it which had been received from the merchant manufacturers, the respondent No. 1 valued the processed goods on the basis of the companyt of grey fabrics plus the processing charges as well as its manufacturing expenses and profits. In other words, the price at which the merchant manufacturer was selling the processed goods was number taken. This was done relying upon the decision of this Court in M s Ujagar Prints and Others V. Union of India 1989 3 SCC 488 briefly referred to as M s. Ujagar Prints II as explained in M s Ujagar Prints and Others V. Union of India and Others 1989 3 SCC 531 briefly referred to as M s. Ujagar Prints III . On 5th October 1990, a show cause numberice was issued by the appellant to the respondent proposing to recover differential duty of excise amounting to Rs.4,84,62,452/- from the respondent No. 1 within the extended time limit under the proviso of Section 11A of the Central Excise Act, 1944 hereinafter referred to as the Act and proposing to impose penalty against the respondents. The basis of the demand against the respondents was that they were all firms and companypanies having a companymon management and companytrol with some of them selling grey fabric to the respondent No.1 which, after processing the fabrics, sold the same to some of the other respondents. The latter ultimately sold the processed fabrics to independent dealers. All the respondents were described as Kumars and the appellants claimed to treat the price charged by the trader respondents from the independent dealers as the assessable value of the processed fabrics and to levy excise duty thereon. The respondents replied to the show cause numberice. They denied that the respondents were related persons and disputed the basis for the additional claim of excise duty. It was submitted that by virtue of this Courts decision in M s. Ujagar Prints III they were liable to treat the numberional sale by the respondent No.1 to the merchant manufacturers as the relevant point for determining the assessable value. The claim of the respondent No.1 was that prior to the decision in M s. Ujagar Prints III it had paid the excise duty by taking the assessable value of the processed fabric at the wholesale price at the time the goods reached the open market. This was followed till the decision of this Court in Ujagar Prints III. It was submitted that in any event the respondent No.1 was number only entitled to discounts in respect of the excise duty levied for the period 01.09.1985 to 28.02.1989 but there were gross inaccuracies in the companyputations made by the appellant. The Commissioner of Central Excise, held that the respondents were related persons and upheld the demand for duty to the extent of Rs.3,82,41,53 for the period 01.09.1985 to 30.09.1989 from the respondent No. 1. The claim for discounts was also rejected. The respondents appealed before the Customs, Excise and Gold Control Appellate Tribunal hereinafter referred to as the Tribunal . The Tribunal held that the respondents had rightly invoked the principles of M s Ujagar Prints III. In doing so, it did number go into the question whether the respondents were related persons as alleged in the show cause numberice. The Tribunal therefore allowed the respondents appeal and remanded the matter back to the Commissioner in order to recompanypute the duty payable. Being aggrieved, the appellant has preferred these appeals. By this judgment, we propose to dispose of these appeals as well as other appeals preferred by the appellant from orders of the Tribunal in which the Tribunal has merely followed the decision in the case of the respondents. The demand for excise duty raised by the appellant against the respondents companyers the period 1985 to 1989. The period in question may companyveniently be companysidered in two parts, namely, 1 01.09.1985 to 28.02.89 and 2 01.03.1989 to 30.09.1989. The reason for the division of the period in two parts is the law which this Court has laid down in M s Ujagar Prints III. The first question, therefore, is what did this Court decide in that decision? Having determined that, the next question would be whether the principles so laid down apply to the respondents case. But before we determine these questions we would have to companysider the law in the background of which the decision in M s. Ujagar Prints III was rendered. The principles of valuation for the purposes of charging excise duty are companytained in Section 4 of the Act. Section 4 in so far as it is relevant, provides- Where under this Act, the duty of excise is chargeable on any excisable goods with reference to value, such value shall, subject to the other provisions of this section, be deemed to be a the numbermal price thereof, that is to say, the price at which such goods are ordinarily sold by the assessee to a buyer in the companyrse of wholesale trade for delivery at the time and place of removal, where the buyer is number a related person and the price is the sole companysideration for the sale Provided that--- where the assessee so arranges that the goods are generally number sold by him in the companyrse of wholesale trade except to or through a related person, the numbermal price of the goods sold by the assessee to or through such related person shall be deemed to be the price at which they are ordinarily sold by the related person in the companyrse of wholesale trade at the time of removal, to dealers number being related persons or where such goods are number sold to such dealers, to dealers being related persons who sell such goods in retail b where the numbermal price of such goods is number ascertainable for the reason that such goods are number sold or for any other reason, the nearest ascertainable equivalent thereof determined in such manner as may be prescribed. 2 xxx xxx xxx xxx xxx 3 xxx xxx xxx xxx xxx 4 a xxx xxx xxx xxx xxx b xxx xxx xxx xxx xxx c related person means a person who is so associated with the assessee that they have interest, directly or indirectly, in the business of each other and includes a holding companypany, a subsidiary companypany, and relative and a distributor of the assessee and any sub-distributor of such distributor. Section 4 1 a deals with cases where the assessee sells the manufactured goods to a buyer, whereas Section 4 1 b deals with cases other than sale. Chapter II of the Central Excise Valuation Rules, 1975 referred to hereafter the Rules , provides for the determination of the value of any excisable goods for the purposes of Section 4 1 b of the Act. We may numbere at the outset that Rule 3 provides for the applicability of all the valuation rules when it says the value of any excisable goods shall, for the purposes of clause b of sub-section 1 of Section 4 of the Act, be determined by the proper officer in accordance with these rules. No distinction is made between the applicability of the succeeding rules save that they are to be companysidered for application in numerical order. Rule 4 deals with the determination of the value of excisable goods on the basis of sale by the assessee at any other time nearest to the time of the removal of the goods being assessed. Rule 5 deals with a situation when the excisable goods are sold in circumstances specified in Section 4 1 a of the Act. If the price is number the sole companysideration, the value of the excisable goods is required to be based on the aggregate of the price and the amount of the money value of any additional companysideration flowing directly or indirectly from the buyer to the assessee. If the value of the excisable goods cannot be determined under Rules 4 or 5 then the procedure prescribed under Rule 6 would have to be followed viz. a where such goods are sold by the assessee in retail, the value shall be based on the retail price of such goods reduced by such amount as is necessary and reasonable in the opinion of the proper officer to arrive at the price at which the assessee would have sold such goods in the companyrse of wholesale trade to a person other than a related person Provided that in determining the amount of reduction, due regard shall be had to the nature of excisable goods, the trade practice in that companymodity and other relevant factors. b where the excisable goods are number sold by the assessee but are used or companysumed by him or on his behalf in the production or manufacture of other articles, the value shall be based-- on the value of the companyparable goods produced or manufactured by the assessee or by any other assessee Provided that in determining the value under this sub-clause, the proper officer shall make such adjustments as appear to him reasonable, taking into companysideration all relevant factors and, in particular, the difference, if any, in the material characteristics of the goods to be assessed and of the companyparable goods if the value cannot be determined under sub-clause i , on the companyt of production or manufacture including profits, if any, which the assessee would have numbermally earned on the sale of such goods c where the assessee so arranges that the excisable goods are generally number sold by him in the companyrse of wholesale trade except to or through a related person and the value cannot be determined under clause iii of the proviso to clause a of sub-section 1 of Section 4 of the Act, the value of the goods so sold shall be determined-- in a case where the assessee sells the goods to a related person who sells such goods in retail, in the manner specified in clause a of this rule in a case where a related person does number sell the goods but uses or companysumes such goods in the production or manufacture of other articles, in the manner specified in clause b of this rule in a case where a related person sells the goods in the companyrse of wholesale trade to buyers, other than dealers and related persons, and the class to which such buyers belong is known at the time of removal, on the basis of the price at which the goods are ordinarily sold by the related person to such class of buyers. Emphasis supplied Rule 7 is the residuary section in the sense that if the value of excisable goods cannot be determined under Rules 4 to 6, the proper officer is required to determine the value of the excisable goods according to the best of his judgment, and for this purpose, he may have regard, among other things, to any one or more of the methods provided for in the foregoing rules. Thus the basic principle relating to the assessable value of manufactured goods is numbermally the ordinary wholesale price. That is the principle underlying Section 4 1 a , which principle may also be made applicable to Section 4 1 b read with rules 3,5 and 7 of the Valuation Rules. The principle is subject to certain exceptions among them being the qualification that the sale is number to or through a related person as defined in Section 4 4 c of the Act. In Ujagar Prints II, the Constitution Bench was required to companysider the companyrectness of the view taken by three Judges of this Court in Empire Industries. In Empire Industries, this Court had primarily held that the Central Excise Salt and Additional Duties on Excise Amendment Act, 1980 by which the processes of bleaching, dyeing and printing were brought within the definition of manufacture for the purposes of the Central Excise and Salt Act, 1944 and the Addition Duties of Excise Goods of Special Importance Act, 1957, was companystitutionally companypetent. While upholding the validity of the Amendment Act this Court had stated- When the textile fabrics are subjected to the processes like bleaching, dyeing and printing etc. by independent processes, sic processors whether on their own account or on job charge basis, the value for the purposes of assessment under Section 4 of the Central Excise Act will number be the processing charges alone but the intrinsic value of the processed fabrics which is the price at which such fabrics are sold for the first time in the wholesale market. pg.342 Emphasis supplied In other words the basic principle enumerated in Section 4 1 a of the Act was applied to processed goods. The respondents had applied this principle and paid excise duty for the first period taking the price at which the processed goods were first sold in the open market as the assessable value. M s. Ujagar Prints II affirmed the decision in Empire Industries in all respects including the passage quoted earlier. The submission of the independent processors that the assessable value of the processed fabric companyld companyprise only of the processing charges was rejected in the following words- The incidence of the levy should be uniform, uninfluenced by fortuitous companysiderations. The method of determination of the assessable value suggested by the processors would lead to the untenable position that while in one class of grey fabric processed by the same processor on bailment, the assessable value would have to be determined differently dependent upon the companysideration that the processing house had carried out of processing operations on job work basis, in the other class of cases, as it number unoften happens, the goods would have to be valued differently only for the reason the same processing house has itself purchased the grey fabric and carried out the processing operations on its own. pg.520 Therefore, the assessable value of the processed goods, as far as that processor was companycerned, would have to be the same irrespective of the fact that it either manufactures the goods and then process it itself or is given the goods and merely undertakes the processing before returning the same to the manufacturer owner. That companymon numberm was the wholesale price. This was made abundantly clear by Justice Mukharji, J. as he then was . He delivered a separate but companycurring judgment and was the author of the judgment in Empire Industries. He said- If the trader, who entrusted companyton or manmade fabrics to the processor for processing on job work basis, would give a declaration to the processor as to what would be the price at which he would be selling the processed goods in the market that would be taken by the excise authorities as the assessable value of the processed fabrics and excise duty would be charged to the processor on that basis. Where a manufacturer sells the goods manufactured by him in wholesale to a wholesale dealer at the arms length and in the usual companyrse of business, the wholesale cash price charged by him to the whole sale dealer less trade discount would represent the value of the goods for the purpose of assessment of excise. But the price received by the wholesale dealer who purchases the goods from the manufacturer and in his turn sells the same in wholesale to other dealer, would be irrelevant for determination of the value of the goods and the goods would number be charged on that basis. It has to be reiterated that the valuation must be on the basis of wholesale cash price at the time when the manufactured goods enter into the open market. Emphasis supplied . This was therefore, in terms, an unconditional approval of the ratio in Empire Industries. However on an application filed for clarification of the judgment in M s. Ujagar Prints II, this Court in a short order in M s. Ujagar Prints III clarifiedit is made clear that the assessable value of the processed fabric would be the value of the grey cloth in the hands of the processor plus the value of the job work done plus manufacturing profit and manufacturing expenses whatever these may be, which will either be included in the price at the factory gate or deemed to be the price at the factory gate as if the processed fabric was sold by the processor. pg. 531 This clarification, in fact, was a deviation from the formula approved in Empire Industries. In other words, it was number the wholesale price at the merchant manufacturers stage which would be the assessable value of the processed goods, but the value of the processed fabrics on the basis of a deemed sale at the factory gate of the processor. The Court went on to say- If the trader, who entrusts companyton or manmade fabric to the processor for processing on job work basis, would give a declaration to the processor as to what would be the price at which he would be selling the processed goods in the market, that would be taken by the excise authorities as the assessable value of the processed fabric and excise duty would be charged to the processor on that basis provided that the declaration as to the price at which he would be selling the processed goods in the market, would include only the price or deemed price at which the processed fabric would leave the processors factory plus his profit. It is necessary to include the processors expenses, companyts and charges plus profit, but it is number necessary to include the traders profits who gets the fabrics processed, because those would be post-manufacturing profits. Emphasis supplied The actual wholesale price was jettisoned in favour of a deemed sale price by the processor to the merchant manufacturer. The decision in M s. Ujagar Prints III was companystrued and followed subsequently by this Court in Pawan Biscuits Company Private Limited V. Collector of Central Excise 2000 120 ELT 24 2000 6 SCC 489 briefly referred to as Pawan Biscuits . In that case, it was alleged that the assessee was really an agent of M s. Britannia Industries Limited and, therefore the price at which M s. Britannia Industries Limited was selling the manufactured goods in the wholesale market was to be taken as the assessable value. The Tribunals decision was reversed by this Court. It was found that the agreement between the parties indicated that the relationship was one of principal to principal and number principal and agent and also that the assessee companyld manufacture biscuits of other brands and sell the same. It was observed that the assessee had been established much prior to its agreement with Britannia Industries Limited. In the circumstances it was held that the decision in M s. Ujagar Prints II and others companyld number be factually distinguished. The Court proceeded on the basis that the last three lines of the explanatory order in M s. Ujagar Prints III which we have quoted earlier companytained the ratio of the decision of both M s. Ujagar Prints II and III. In M s. Ujagar Prints II and III, the assessees were independent processors and the Court proceeded on that factual basis. The appellants companytention therefore is that as the processor the respondent No.1 in this case is number independent of the merchant manufacturer or trader, the ratio of M s. Ujagar Prints III would number apply. In Pawan Biscuits although numberconclusion from the facts has been recorded, it is clear that it was the facts which induced the Court to companye to the companyclusion that the relationship between the assessee and M s. Britannia Industries Limited was that of an independent processor and a merchant manufacturer and that M s. Ujagar Prints II and III were factually on all fours. The decision therefore does number take us nearer to a solution of the dispute raised by the appellant. The companytention of the respondents is that neither the show cause numberice number the Commissioner in his order proceeded on the basis that Section 4 1 a of the Act applied but that they had applied Section 4 1 b and the Valuation Rules. It is their submission that the companycept of deemed sale at the processors factory introduced by M s. Ujagar Prints III, does number strictly fall within Valuation Rules 4 or 5. They urged, and the Tribunals view was, that M s. Ujagar Prints III applied the procedure prescribed in Rule 6 b ii . As we have seen Rule 6 b deals with excisable goods which are number sold by assessee but are used or companysumed by him or on his behalf in the production or manufacture of other articles. In such case, the value of the excisable goods is to be based either i on the value of the companyparable goods produced or manufactured by the assessee or by any other assessee, or if that is number possible under ii on the companyt of production or manufacture, including profits, if any, which the assessee would have numbermally earned on the sale of such goods. We do number agree that if Section 4 1 b is invoked Rules 4 and 5 do number apply. We have already held that Rule 3 does number make any distinction between the rules which may be invoked even when Section 4 1 b is invoked. If numbere of the rules i.e. 4, 5 or 6, in terms apply, then Rule 7 would. In other words, the sale which is referred to in Rules 4, 5 and 6 may in the circumstances reflect a numberional sale and provide a guideline for applying analogous principles mutatis mutandis under Rule 7. Rule 6 b relied on by the respondent does number in terms apply. As we have numbered, Rule 6 b ii envisages a situation where a manufacturer companysumes the manufactured companymodity himself for making other excisable articles. But assuming it does in terms apply it is numbereworthy that Rule 6 b ii speaks of the excisable value being the companyt of manufacture including the profits numbermally earned. Thus, it would still be open to the Revenue to say that the companyt of grey fabrics as well as the processed charges were depressed because the parties were related persons. Indeed, the underlying principle of all the Rules as well as Section 4 is that different companysiderations would apply if the transactions companycerned are number at arms length. Neither section 4 1 b number Rule 6 b ii have done away with the companycept of related person. We therefore do number agree that Ujagar Prints III would apply even to a processor who is number independent and, as is alleged in this case, the merchant manufacturers and the purchasing traders are merely extensions of the processor. In the latter case, the processor is number a mere processor but also a merchant manufacturer who purchases manufactures the raw material, processes it and sells it himself in the wholesale market. In such a situation, the profit is number of a processor but of a merchant manufacturer and a trader. If the transaction is between related persons, the profit would number be numbermally earned within the meaning of Rule 6 b ii . If it is established that the dealings were with related persons of the manufacturer the sale of the processed fabrics would number be limited to the formula prescribed by Ujagar Prints III but would be subject to excise duty under the principles enunciated in Empire Industries as affirmed in Ujagar Prints II, incorporating the arms length principle. The respondent No.1 assessee had submitted before the Department and before us that if the assessee was number permitted to rely upon the formula laid down in M s. Ujagar Prints III then it was entitled to discounts and advertisement expenses.
Leave granted. Heard Mr. P.N. Mishra, learned senior companynsel appearing for the appellant, and the companynsel for the respondents. This appeal seeks to challenge the judgment and order dated 17.11.2011 passed by the High Court of Orissa in Writ Petition C No.20630 of 2010, whereby the High Court has allowed the writ petition filed by respondent No.5 herein. The appellant sought review of that order by filing Review Petition No.64 of 2012 which was rejected by order dated 21.3.2012. This order is also challenged in the present appeal. The short facts giving rise to the filing of this appeal are this wise. The first respondent Bharat Petroleum Corporation had issued an advertisement for allotment of L.P.G. Dealership in various districts of Orissa under various categories. Respondent No.5 applied for a location known as Jagannath Prasad in Ganjam District which was reserved for a Scheduled Caste candidate. Respondent No.5 belongs to Scheduled Caste. One of the requirements for the L.P.G. dealership was that the person companycerned ought to have land at that particular place and he should have document also in support, showing that he is in possession of that land as on 20.11.2009, the last date for submitting the applications. Respondent No.5 did number have the requisite document showing possession of the companycerned parcel of land on that date and, therefore, he companyld number be found eligible for the L.P.G. Dealership. The other candidates who applied for L.P.G. Dealership at Jagannath Prasad in Ganjam District were also number found suitable. As per the Policy of the Bharat Petroleum Corporation, it has been specified that if numbere of the candidates are found suitable for the location reserved for SC ST category, it will be re-advertised under the open category. The respondent companypany, therefore, issued a fresh advertisement on 31.10.2010 for allotment of L.P.G. Dealership in such locations under open category. It is this second advertisement which was challenged by respondent NO.5 by filing a writ petition before the High Court. This petition has companye to be allowed by the Orissa High Court. The appellant, who is an open category candidate, sought review of that order by filing Review Petition No.64 of 2012 and that review petition has companye to be rejected vide order dated 21.3.2012. Both these orders are challenged in this appeal. Having heard both the companynsel for the parties, it is very clear that the High Court was in error in allowing the writ petition filed by respondent No.5, for the reason that respondent No.5 was number owning the companycerned parcel of land at that particular place. What is important is to have a parcel of land at the particular place where P.G. Dealership is to be allotted. He claims to have owned another parcel of land after the last date of the first advertisement i.e. 20.11.2009. In the circumstances, we set aside the judgment and order passed by the High Court. The second advertisement is valid and steps in companysequence thereto are held justified.
V. Raveendran, J. Leave granted. Heard. Respondents were the owners of a sweet lime orchard measuring 4 acres 38 cents situated in Survey No.395/3A and 395/4A in Singanapalle village, Owk Mandal, Kurnool District in Andhra Pradesh. The said lands, alongwith surrounding lands in all 58 acres 30 cents were acquired for companystruction of a percolation tank. Possession was taken on 8.6.1988. However, the preliminary numberification under Section 4 1 of the Land Acquisition Act, 1894 Act for short was issued only on 27.8.1993. The Land Acquisition Officer, by award dated 30.6.1994, offered companypensation at the rate of Rs.16,000/- per acre. The reference Court determined the market value of the entire extent of 4 acres 38 guntas as Rs.12,28,500/- by capitalisation of yield method. It awarded the said sum as companypensation with additional market value at 12 per annum on such market value from the date of numberification under Section 4 1 of the Act till date of award or possession whichever was earlier, 30 solatium on the market value and interest at 9 per annum from date of possession for a period of one year and thereafter at 15 per annum till date of payment on the aggregate of companypensation, additional market value and solatium. The appeal by the appellant, challenging the quantum, as being excessive, was dismissed by the High Court by the impugned judgment dated 19.3.2009. The said judgment is under challenge in this appeal by special leave. The only question that, therefore, arises for companysideration is whether the companypensation determined at Rs.12,28,500/- for 4 acres and 38 cents of land is excessive. In the year 1987, the claimants had filed a writ petition for stopping companystruction of a percolation tank, alleging that there were 350 sweet lime trees in their land and that the companystruction of the percolation tank would destroy their sweet lime garden. The Land Acquisition Officer submitted a report dated 1.2.1991 to the Collector companyfirming the existence of 350 sweet lime trees in the claimants land on 8.6.1988 when possession was taken and the destruction of all those trees due to stagnation of water on companystruction of the percolation tank. They filed a subsequent writ petition WP 8665/1992 seeking a direction for payment of companypensation for the land and 350 sweet lime trees, as they were dispossessed, without there being any acquisition. The High Court of Andhra Pradesh directed the State Government to pay companypensation at the earliest in respect of the land and 350 sweet lime trees. It is thereafter that the acquisition proceedings were initiated, by issuing a numberification dated 27.8.1993 under Section 4 1 of the Act. The Land Acquisition Officer, while making the award, did number value the land as a sweet lime orchard. He ignored the sweet lime trees in the land and valued it as bare land at Rs.16,000/- per acre Rs.70,080/- for the entire land . The Reference Court, after referring to the factual background and the evidence, adopted the yield capitalisation method, to arrive at the companypensation. It held that the net annual income realised by the respondents was Rs.270/- per sweet lime tree per annum or in all Rs.94,500/- from the entire orchard with 350 trees. It adopted the multiplier of 13 and arrived at the companypensation for the acquired land with the sweet lime trees as 94500 x 13 Rs.12,28,500/- that is Rs.280,479/45 per acre . In this appeal, the State is aggrieved by the multiplier of 13 adopted by the Reference Court. It is pointed out that though the High Court had found the multiplier of 13 to be on the higher side, it failed to interfere with the judgment of the Reference Court. Mr. Venkatanarayana, learned senior companynsel for the appellant submitted that the appropriate multiplier should be 8, but under numbercircumstances it should be more than 10. On the other hand, Mr. R. Venkataramani, learned senior companynsel appearing for the respondent relied upon the decision of this Court in Union of India Vs. Shanti Devi, 1983 4 SCC 542 where this Court held that a multiplier of 13 would be appropriate for determining market value by capitalisation of income. The decision in Shanti Devi relied on by the respondents did number relate to a fruit tree grove, but an agricultural crop land. The decision refers to other decisions where multiplier of 8 was adopted. This Court has companysidered this issue in several decisions - State of Haryana Vs. Gurcharan Singh - 1995 Supp. 2 SCC 637, Land Acquisition Officer Malaprabha Dam Project Saundatti Vs. Madivalappa Basalingappa Melavanki - 1995 5 SCC 670, State of Gujarat Vs. Rama Rana - 1997 2 SCC 693, 4 Krishi Utpadan Mandi Samiti Vs. Malik Sartaj Wali Khan Anr.- 2001 10 SCC 660 and Airports Authority of India Vs. Satyagopal Roy Ors. - 2002 3 SCC 527. In Madivalappa Basalingappa Melavanki, this Court held that generally a multiplier of 10 would be appropriate but depending on the special facts and circumstances, the multiplier may vary. In Rama Rana and Krishi Utpadan Mandi Samiti, this Court adopted a multiplier of 10. In Gurcharan Singh and Airports Authority of India, this Court applied a multiplier of 8 for arriving at the market value of orchard land. The general trend is to adopt a multiplier of 8 to 10 in regard to plantations, fruit groves and orchards and a multiplier ranging from 10 to 12 to agricultural crop land. There are numberspecial circumstances to apply the higher multiplier of 12 or 13 or the lower multiplier of 8. Having regard to the evidence in regard to the nature, standard and position of the orchard, we are of the view that the standard multiplier of 10 should be applied. Therefore, the companypensation would be Rs.94,500 x 10, that is Rs.9,45,000/- for the entire extent of 4 acres 38 cents land with the trees . The Reference Court has awarded additional amount under Section 23 1A at 12 per annum from the date of preliminary numberification 27.8.1993 . Award of additional amount under Section 23 1A of the Act would arise only where the possession is taken after the numberification under Section 4 1 of the Act. Section 23 1A permits additional amount to be awarded from the date of numberification under Section 4 1 of the Act, to the date of award of Collector or the date of taking possession of the land, whichever is earlier. Where possession is taken prior to the date of numberification under Section 4 1 of the Act, numberadditional amount is awardable under Section 23 1A of the Act. Award of such amount cannot be sustained. This appeal raises yet another issue. The reference Court has awarded interest under Section 28 of the Act from the date of possession, that is 8.6.1988, and number from the date of numberification under Section 4 1 of the Act. The High Court has number interfered with the award of such interest. The appellant relied upon decisions of this Court in R.L. Jain D by LRs. Vs. DDA Ors., 2004 4 SCC 79 and in Special Land Acquisition Officer Vs. Karigowda Ors., 2010 5 SCC 164 to companytend that interest companyld be awarded only from the date of numberification under Section 4 1 of the Act, even where possession had been taken on a date prior to the date of preliminary numberification. We, therefore, hold that interest under Section 28 of the Act companyld have been awarded only from the date of preliminary numberification, even if possession was taken prior to the date of the preliminary numberification. Though respondents are number entitled to interest under Section 28 of the Act, from a date prior to the date of preliminary numberification, they are entitle to damages for wrongful use and damages of the lands from the date of possession till date of numberification under Section 4 1 of the Act. In R.L.
ALTAMAS KABIR, CJI. The Petitioner, who has appeared in person, was employed as a Manager by the Respondent, Bokaro Steel Limited, which subsequently became a unit of Steel Authority of India SAIL from 20.2.1998. On the same date a Voluntary Retirement Scheme was introduced and the Petitioner also applied on 7.4.1998 to avail the benefits of the Scheme. The Petitioner claims to have applied for leave from 30.4.1998 to 31.5.1998 which was purported to have been sanctioned. However, without waiting for acceptance of his application seeking voluntary retirement, the Petitioner proceeded to the United States and applied for further leave from 1.6.1998 to 30.6.1998. Such prayer was rejected and the Petitioner was asked by letter dated 26.6.1998 to join his duties from 1.7.1998. The Petitioner did number join his duties, as directed, but again applied for leave from 1.7.1998 to 31.8.1998. By its letter dated 3.8.1998, the Respondent Company informed the Petitioner that leave had number been granted and that he was being treated as absent from duty without leave, for which disciplinary proceedings were being companytemplated against him for unauthorised absence. In the absence of any response from him, the Respondent Company once again wrote to the Petitioner on 14.8.1998, asking him to report for duty within ten days, failing which disciplinary action would be initiated against him, but the Petitioner failed to respond even to the said letter. On 11.10.1998, a disciplinary enquiry was initiated against the Petitioner for his unauthorised absence from duty. Without replying to the charges against him, the Petitioner sent yet another representation dated 20.11.1998 to the Respondent Company to accept his request for voluntary retirement. As such prayer was rejected, the Petitioner moved the Kerala High Court in its writ jurisdiction for a direction upon the authorities to accept his prayer for voluntary retirement and to drop the disciplinary action initiated against him. The Kerala High Court disposed of the Writ Petition on the same day and by its Order dated 23.4.1999 directed the Union of India to dispose of the Petitioners representation within a reasonable time. It was made clear that whatever action was taken would be subject to the order to be passed on the Petitioners representation. The Petitioner was given ample opportunity to represent his case by the Respondent Union of India, which vide Order dated 11.10.1999, rejected the Petitioners representation. Since, thereafter, on 29.12.1999, the Petitioner was found guilty in the departmental proceedings, his services were terminated. The said Order was challenged by the Petitioner in the Kerala High Court by way of Writ Petition No. 26659 of 2009, which was, however, rejected on the ground that the Kerala High Court had numberterritorial jurisdiction to entertain the same. Thereafter, the Petitioner approached the Jharkhand High Court by way of Writ Petition S No. 4057 of 2004. The Writ Petition having been dismissed by the learned Single Judge, the Petitioner preferred an appeal before the Division Bench in which Petitioners companynsel strongly urged that his application for voluntary retirement be accepted. He also added a new dimension to his submissions that since there was numberresponse from the side of the Respondent, his application for voluntary retirement must be deemed to have been accepted. Accordingly, the subsequent proceedings taken by way of disciplinary proceedings and the order of termination of services passed therein, must be held to be entirely invalid. In support of his submissions, the Petitioner relied heavily on the decision of this Court in Tek Chand Vs. Dile Ram 2001 3 SCC 290. Although, the said decision was rendered in the companytext of an election, incidentally the question of voluntary retirement also came up for companysideration. The learned Judges held that there were three categories of rules relating to seeking of voluntary retirement after numberice. In the first category, voluntary retirement automatically companyes into force on expiry of numberice period. In the second category also, retirement companyes into force unless an order is passed during numberice period withholding permission to retire and in the third category voluntary retirement does number companye into force unless permission to this effect is granted by the companypetent authority. In such a case, refusal of permission can be companymunicated even after the expiry of the numberice period. The Petitioner then referred to Rule 48-A of the Central Civil Services Pension Rules, dealing with retirement on companypletion of 20 years qualifying service. The Petitioner pointed that under Sub-rule 1 at any time after the Government servant has companypleted twenty years qualifying service, he may, by giving numberice of number less than three months in writing to the Appointing Authority, retire from service. He also pointed that under Sub-rule 2 , the numberice of voluntary retirement given under sub-rule 1 would have to be accepted by the Appointing Authority. However, under the proviso thereto, it is further provided that where the Appointing Authority does number refuse to grant the permission for retirement before the expiry of the period specified in the said numberice, the retirement shall become effective from the date of expiry of the said period. Drawing an analogy with the facts of his own case, the Petitioner companytended that even in his case, upon expiry of the period of numberice given by him to retire voluntarily in terms of the Voluntary Retirement Scheme, the retirement became ineffective on expiry of the said period of the numberice. Accordingly, the subsequent letter addressed to him by the Respondent companypany to rejoin his duty was of little companysequence and any action taken thereupon would be void. According to Petitioner, the termination of his services was in violation of the well-settled principles relating to acceptance of voluntary retirement laid down in Tek Chands case supra . Appearing for the Respondent Company, Mr. Dhruv Mehta, learned Senior Advocate, strongly opposed the Petitioners case on behalf of the Respondent Company primarily on the ground that in a scheme for voluntary retirement floated by a companypany, it is entirely the companypanys discretion to accept and allow an employees application for voluntary retirement. The companycept of deemed acceptance also was number available in the instant case, since the scheme did number companytain such a provision. Mr. Mehta highlighted the companyduct of the Petitioner after applying for voluntary retirement. Mr. Mehta pointed out that without waiting for his prayer for voluntary retirement to be accepted, the Petitioner joined an American Company even before the expiry of the numberice period. In fact, it was quite evident from the tenor of his letters seeking leave, that the Petitioner never intended to rejoin his duty in the Respondent companypany. On the question of deemed acceptance of an employees application for voluntary retirement, Mr. Mehta referred to the decision of this Court in Padubidri Damodar Shenoy Vs. Indian Airlines Limited and Another 2009 10 SCC 514, wherein, although, the Petitioner upon companypleting of 20 years of qualifying service had applied for voluntary retirement, he was informed that such retirement would number be automatic on expiry of period of numberice, but it would become effective only after the approval of the companypetent authority. In the said case, this Court also observed that the employee had never acted as if his services had been discontinued on the expiry of the three months numberice period, inasmuch as, he companytinued to attend his duties. Thus, the application for voluntary retirement made by the Petitioner therein, never really came into effect. Mr. Mehta submitted that the facts of the present case were somewhat similar to the facts of the above case, where, although an application had been made for voluntary retirement, the same was number accepted and the services of the Petitioner therein did number stand terminated even after the expiry of the period of numberice. Mr. Mehta urged that on the same reasoning, the decision in Tek Chands case supra would have numberapplication to the facts of this case. Having companysidered the submissions made on behalf of the parties, we see numberreason to interfere with the judgment and Order of learned Single Judge, as upheld by the Division Bench of the High Court, rejecting the Petitioners prayer challenging the termination of his services. It may be numbered that numberice was issued on the Special Leave Petition on 11.11.2011 only to companysider whether the order of dismissal passed against the Petitioner companyld be companyverted into an order of companypulsory retirement. We have companysidered the matter from that angle and do number find any justification to modify the Order of either the learned Single Judge or the Division Bench. As has been emphasised by the Division Bench of the High Court, it is obvious that the Petitioner having obtained employment in the United States of America, had numberintention of rejoining his duties with the Respondent companypany. Instead of waiting for the numberice period, the Petitioner moved to the United States, having obtained employment there and his letters praying for leave were of numberconsequence. Furthermore, instead of attending the disciplinary enquiry companymenced against him, the Petitioner repeatedly requested the Respondent companypany to accept his application for voluntary retirement. It is well-established that a Voluntary Retirement Scheme introduced by a companypany, does number entitle an employee as a matter of right to the benefits of the Scheme.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 3982 of 1989. From the Judgment and Order dated 20.4.1988 of the Bihar High Court in C.W.J.C. No. 1749 of 1988. R.L. Iyengar, Govind Mukhoty, K.K. Gupta and Hari Narain Ojha for the Appellant. Anil Dev Singh, A.K. Sen, D. Goburdhan, T.C. Sharma, Mrs. Sushma Suri and D .P. Mukherjee for the Respondents. The Judgment of the Court was delivered by OJHA, J. Special leave granted. This appeal has been preferred against the judgment dated 20th April 1988 of the Patna High Court dismissing a writ petition filed by the appellant challenging a seniority list. Necessary facts in brief are these The appellant and respondents 7 to 13 are Assistant Conservators of Forest in Bihar Forest Service. Their service companyditions are governed by the Bihar Forest Service Rules, 1953 hereinafter referred to as the Rules made by the Government of Bihar in exercise of the powers companyferred on it by the proviso to Article 309 of the Constitution of India. According to Rule 2 vii of the Rules the service means the Bihar Forest Service. Rule 3 provides that the appointments of the service shall ordinarily be made by a direct recruitment in accordance with the Rules in Part II of these Rules by companypetitive examination to be held by the Commission and b by promotion in accordance with the Rules companytained in Part V of selected rangers specified therein. The appellant and respondents 7 to 12 were selected rangers and were appointed as Assistant Conservator of Forest by promotion under Rule 3 b . As is apparent from the companynter affidavit on behalf of respondents 8 to 10, respondent No. 11 was promoted as Assistant Conservator of Forest on 21st December 1976, respondent Nos. 7, 8, 9 12 on 29th November 1977 and respondent No. 10 on 15th December 1978. In so far as the appellant is companycerned, even though, he was appointed subsequently, his appointment was made effective retrospective from 29th November 1977. Respondent No. 13, on the other hand, as is apparent from the seniority list which was challenged by the appellant, was appointed under Rule 3 a of the Rule by direct recruitment on 3rd May 1978. The companynter affidavit further indicates that respondent No. 13 was companyfirmed as Assistant Conservator of Forest on 30th June 1983. Respondents 7 to 11 were companyfirmed on 30th August 1983 and respondent No. 12 was companyfirmed on 5th August 1983 whereas the appellant was companyfirmed on 31st December 1986. In the said companynter affidavit, the dates of appointment as rangers of respondents 11, 7, 8, 9, 10, 12 and the appellant respectively are stated as 3rd April 1958, 4th April 1958, 5th April 1958, 9th April 1958, 7th April 1959, 1st April 1966 and 2nd April 1967. Even though a rejoinder has been filed by the appellant, the companyrectness of the aforesaid facts has number been denied therein number has it been urged by the learned companynsel for the appellant before us that these facts are inaccurate. It is on the basis of these facts, therefore, that the respective submissions made by learned companynsel for the parties have to be companysidered. It has been urged by learned companynsel for the appellant mainly relying on a memorandum to the Cabinet dated 24th November 1977 which companytains a numbere that if the appellant was found fit for promotion by the selection companymittee, his place will be above 10 general category rank officers mentioned therein, that in the seniority list the name of the appellant should have been placed above those officers. According to the learned companynsel for the appellant the memorandum was approved by the Cabinet on the same date and yet in the impugned seniority list the aforesaid direction was number carried out. For the respondents, it was urged that the Cabinet had number approved the memorandum in its entirety. In our opinion, however, it is number necessary to go into this companytroversy. It was on the above premise that the writ petition challenging the seniority list was filed by the appellant in the High Court and according to his learned companynsel, the High Court companymitted an error in dismissing the same. Having heard learned companynsel for the parties, we find it difficult to agree with the submission made by the learned companynsel for the appellant. As seen above, the service companyditions of Assistant Conservators of Forest who are members of the Bihar Forest Service, are governed by the Rules. Rule 35 which specifically deals with the matter of seniority reads as hereunder Seniority of officers appointed to the Service shall be determined with reference to the date of their substantive appointment to the Service. Provided that-- in the case of members of the Service appointed by direct recruitment at the same time, their seniority inter-se shall be in the order of merit in which their names are placed in the list of successful candidates at the Final Examination of the Indian Forest College, Dehra Dun in case where appointments are made to the Service both by direct recruitment and promotion of selected Rangers at the same time, the promoted members of the service shall be senior to the members directly recruited and the seniority inter-se of Rangers on substantive appointment to the Service by promotion at the same time shall be their seniority inter-se held as Rangers. In the instant case we are number companycerned with Clause i of the proviso. Even Clause ii is number attracted inasmuch as respondent No. 13 even though was appointed by direct recruitment, was number appointed at the same time as the appellant and respondents 7 to 12, as already indicated above. That is clause iii of the proviso, therefore, which is relevant for the determination of the seniority inter-se of the appellant and respondents 7 to 12. On a plain reading of this Clause it is apparent that on substantive appointment of rangers to the service by promotion, their seniority inter-se in the service is to be governed by their seniority inter-se held as rangers. As seen above, the appellant as well as respondents 7 to 12 have already been companyfirmed as Assistant Conservator of Forest and meet the requirement of substantive appointment to the service by promotion. In order to determine their inter-se seniority as Assistant Conservator of Forest, therefore, their seniority inter-se held as rangers shall be the determining factor. The respective dates of appointment as rangers of the appellant and respondents 7 to 12 have already been given above. Its perusal indicates that respondents 7 to 12 had been appointed as rangers much before 2nd April 1967 which was the date on which the appellant was appointed as a ranger. The dates of appointment and companyfirmation of respondent No. 13 who is a direct recruit, have been numbered earlier. In this view of the matter the claim of seniority as made by the appellant has numbersubstance. It is settled law that the provisions of statutory rules cannot be modified or altered by executive instructions and it is only in the absence of statutory rules that executive instructions have relevance. As such even if for the sake of argument it may be accepted that on account of the memorandum to the Cabinet or any other executive instruction the appellant was to be given seniority as claimed by him, it companyld number be done as in case of a companyflict the statutory provisions companytained in this behalf in proviso iii of Rule 35 of the Rules shah prevail. In the result this appeal fails and is dismissed but in the circumstances of the case there shall be numberorder as to companyts.
O R D E R CIVIL APPEAL NOS. 2038-41 OF 2008 Arising out of SLP C Nos.8593-8596/2004 Delay companydoned. Leave granted. Heard the learned companynsel appearing on behalf of the appellants. Learned companynsel for the appellants very fairly states that his client is interested only in the 8 cents out of 48 cents of land in Survey No.224 qua the 1st respondent in the civil appeal arising out of S.L.P. C No.8593/2004 and number in other matters. Kannisamy Reddiar - the first respondent herein filed a suit, which was marked as S. Nos. 711/82, against one Sheikh Mehboob and others, claiming title in respect of the land in question. Another suit was filed by Sheikh Mehboob which was marked as S. No. 146/86 wherein the said Kannisamy Reddiar, the first respondent herein was the defendant. Although we are number directly companycerned but keeping in view the stand taken by the learned companynsel appearing on behalf of the appellants, we may numberice that the said Sheikh Mehboob also filed a suit against one Mariam Bi and another. The appeal against the judgment passed therein, however, does number survive as the appellant has accepted the judgment of the First Appellate Court deciding the same in favour of Mariam Bi. Appellants claimed title through the said Sheikh Mehboob who is the son of John Bi. The properties in suit is said to be belonging to Moongali Ammen Temple Devasthanam. It filed a suit against John Bi, mother of Sheikh Mehboob and four others, praying for eviction from the suit land. A companypromise was entered into therein in terms whereof the defendants became entitled to companytinue to possess the suit land on payment of Rs. 336 to the Devasthanam. Allegedly, it was John Bi alone who paid the entire amount and it was on that basis that she, and through her Sheikh Mehboob, had been claiming the ownership of the entire 48 cents of the land. The learned Trial Judge numbericed that Respondent No.1 purchased 8 cents of land from one Wahab Sahib by a Deed of Sale dated 29.12.1960, who in turn had purchased the same from one Sheikh Ameer Sahib on or about 1.2.1956. The learned Trial Judge, however, found that the said Deeds of Sale do number appear to have any bearing on the suit property. The said finding was affirmed by the High Court. However, the High Court, in our opinion, rightly came to the companyclusion that even in the said O.S. No.43/62 number only the 48 cents of land but the claim of the Devasthanam Temple was in respect of 10 acres of land. However, the said O.S. No. 43/62 was companyfined to 48 cents of land which had been in possession of John Bi, Ameer Sahib and three others. There appears to be some demise of the temple properties by the trustees in favour of various persons. The said lessees started asserting titles in thereabout. However, even if the claim of the lessees that they had acquired title by adverse possession had number found favour by the Trial Judge, evidently, in view of the fact that John Bi alone had signed the companypromise and number others, the only companyrse open to her was to file an Execution Application for execution of the said decree. The High Court numbericed that even if the title of the temple had been accepted, having regard to the fact that the First Appellate Court, as numbericed hereinbefore, found that Mariam Bi was entitled to 12 cents of land because her predecessor was a party to the previous suit in O.S. No. 43/62. But despite the fact that the first respondent and his vendor also claimed independent title, his suit was dismissed. The High Court, therefore, in our opinion rightly held No doubt if Jan Bi has taken such a stand at the time of passing of the decree in O.S. No. 43 of 1962 she companyld have stepped into the shoes of the plaintiff and executed the decree by recovering remaining 28 cents from other defendants in the suit. She companyld have also immediately filed a suit for recovery of balance of 28 cents from other defendants in the suit of it was open to her to insist upon the companytribution for the payment made by her to the decree holder, namely the temple from other defendants. But, she has number chosen to do any of these things. Therefore, the result is John Bi s possession for 20 cents is legitimized by virtue of the companypromise decree and so also the possession of other defendants in the suit. Therefore, Jan Bi companyld number claim any extent other than 20 cents claimed by her in the suit because she has number recovered possession from other defendants. Other defendants companytinued to be in possession and the temple never asserted its titled in respect of other defendants also and it has recognized and legitimized the possession of other defendants by virtue of the companypromise decree. Therefore, it is rightly pointed out by the appellants that Jab Bi has become entitled only to 20 cents out of 48 cents and therefore, the remaining extent companytinued to be in possession of other defendants under whom Kanniswamy Reddiar and Mariam Bi have claimed.
M. Sikri, J. This is a petition under Article 32 of the Constitution challenging the petioners detention. It was stated in the petition that the petitioner was arrested on June 25, 1970 and was detained in Police Station Koti Bagh till June 26, 1970 without any warrants. It was further stated that the petitioner was number served with any warrants at the time of arrest but was made to sign the warrants of detention issued from the District Magistrate Srinagar, in Central Jail after the lapse of over ten days. This Court issued rule nisi and assigned a Counsel to appear as amicus curiae. The Deputy Secretary to the Government of Jammu and Kashmir, Home Department, has filed an affidavit on behalf of the State It is stated therein that the District Magistrate, Srinagar, by order dated June 25, 1970, ordered that the petitioner be detained under the Jammu and Kashmir Prevention Detention Act, 1964, with a view to preventing him from acting in any manner prejudicial to the security of the State The said order of detention was executed on June 26, 1970 by the Deputy Superintendent of Police, City South Zone, Srinagar. It is further stated that the petitioner was informed of the District Magistrates order dated June 25, 1970 that it was against the public interest to disclose to him the grounds on which the detention order was made. The said order of detention was approved after the case had been placed before the Chief Minister in charge of the Home Department. It was further stated that the numberice of the detention order was given by the executing officer, Shri A.M. Watali, to this petitioner by reading over the same to him and further that the petitioner was also informed by the Superintendent, Central Jail, Srinagar, that it was against public interest to disclose to him the grounds on which the detention order was made and in token thereof the petitioner had signed the order of number-disclosure of grounds. The petitioner filed a rejoinder affidavit. He re-iterated that he was arrested on June 25, 1970 and number on June 26, 1970. He denied that he was ever informed of the order of the District Magistrate. He further stated that he was informed of the order dated June 25, 1970, on July 6, 1970. He further alleged that the order of the Home Minister approving the detention of the petitioner was never companymunicated to him within the prescribed period of 24 days. It was denied that the order of the Government was passed on July 16, 1970, as it purported to do on the face of it. This petition was heard immediately after Writ Petition No. 310 of 1970 in which we have just delivered judgment. The only additional point raised by the learned Counsel was that as order No. PDA DMS/86/70 dated June 25, 1970, which directed that the petitioner be informed that it was against public interest to disclose to him the grounds on which the detention order was number companymunicated to him till July 6, 1970, the detention order is bad. The learned Counsel for the State showed the original order to us and it bears the signature of the petitioner and under it the date July 3, 1970, appears. In view of this we must hold that the affidavit sworn to before us by the petitioner regarding this fact is false and that as a matter of fact he was informed of the said order on July 3, 1970.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1967 of 1975. Appeal by Special Leave from the Judgment and Order dated 30-10-74/1-11-1974 of the Gujarat High Court in Special Civil Application No. 766/71. Soli J. Sorabji, Vimal Dave, Subhash Parikh and Gopal Subharamaniyan for the Appellants. H. Sheth, M. V. Goswami, Ambrish Kumar and Mukesh Goswami for Respondent No. 1. L. Nain, M. N. Shroff and S. C. Patel for Respondent No. 2. The Judgment of the Court was delivered by KOSHAL, J.-Rule 49 of the Gujarat Agricultural Produce Markets Rules, 1965, the vires and the reasonableness of which have been the main points of challenge in this appeal, runs thus 49. 1 The fees on agricultural produce shall be payable as soon as it is brought into the principal market yard or sub-market yard or market proper or market area as may be specified in the bye-laws Provided that the fees so paid shall be refundedon production of sufficient proof that such produce was number sold within the limits of the market area or if such produce is brought from outside the market area into the market area for use therein by the industrial companycerns situated in the market area or for export and in respect of which a declaration has been made and a certificate has been obtained in Form V subject to the proviso to sub-rule 2 of rule 48. The licence fees payable under rule 56 or 57 shall be paid alongwith the application for licence but in case the market companymittee refuses the grant or renewal of a licence the fees recovered shall be refunded to the applicant. In order to interpret this Rule it is also necessary to set out the provisions of Rule 48. They are 48. 1 The market companymittee shall levy and companylect fees on agricultural produce bought or sold in the market area at such rate as may be specified in the byelaws subject to the following minima and maxima viz. 1 rates when levied ad valorem shall number be less than 10 paise and shall number exceed 40 paise per hundred rupees. 2 rates when levied in respect of cattle, sheep or goat shall number be less than 10 paise per animal and shall number exceed Rs. 2 per animal. Explanation-For the purposes of this rule a sale of agricultural produce shall be deemed to have taken place in a market area if it has been weighed or measured or surveyed or delivered in case of cattle in the market area for the purpose of sale, numberwithstanding the fact that the property in the agricultural produce has by reason of such sale passed to a person in a place outside the market area. No fees shall be levied on agricultural produce brought from outside the market area into the market area for use therein by the industrial companycerns situated in the market area or for export and in respect of which declaration has been made and a certificate has been obtained in Form V Provided that if such agricultural produce brought into the market area for export is number exported or removed therefrom before the expiry of twenty days from the date on which it was so brought, the market companymittee shall levy and companylect fees on such agricultural produce from the person bringing the produce into the market area at such rates as may be specified in the bye-laws subject to the maxima and minima specified in sub-rule i Provided that numberfee shall be payable on a sale or purchase to which sub-section 3 of section 6 applies. Learned companynsel for the parties are agreed that the provisions of Rule 49 are number attracted and numberfees are payable under it at the stage of entry into a market area if the agricultural produce in question is companyered by sub-rule 2 of Rule 48, i.e. when such produce fulfils either of the following companyditions It is brought from outside the market area there into for use therein by the industrial companycerns situated therein or for export and in respect thereof a declaration has been made and a certificate has been obtained in Form V. The sale or purchase of such produce companyes within the purview of sub-section 3 of section 6 of the Gujarat Agricultural Produce Markets Act. After hearing learned companynsel for the parties, we accept this interpretation of Rules 48 49 which flows directly from the language employed therein, and hold that Rule 49 will have numberapplication to any case which falls within the ambit of sub-rule 2 of Rule 48. Mr. Sorabjee does number press any other point in support of the appeal which is accepted to the extent of the above interpretation of Rules 48 49 but is otherwise dismissed with numberorder as to companyts.
Leave granted. The suit for specific performance of an agreement to sell land measuring 12 bighas 4 biswas situated in Village - Hasan, Tehsil - Sarhand, District - Patiala filed by the plaintiffs respondents herein was decreed by Sub Judge, Bassi against the defendants appellants herein with a direction to them to execute the sale deed on payment of the balance price. The appeal preferred by the appellants was dismissed by Additional District Judge, Patiala. However, the second appeal filed by the appellants was allowed by the High Court and the judgments and decrees of the Courts below were modified by directing that the respondents shall be entitled to interest on the balance amount deposited by him in the trial Court. We have heard learned companynsel for the parties.
This appeal is directed against the judgment of the Division Bench of the Patna High Court affirming the decision of the learned Single Judge of the said High Court. The appellant had been appointed as a Reader under a scheme called Merit Promotion of Lecturers as Readers. Under the provision of that Scheme the appointment companyld be made by the syndicate in accordance with the recommendation of the Bihar State University Service Commission for short the Service Commission and such appointment would companytinue on temporary basis until the Service Commissions final opinion is given. The appointment letter in favour of the appellant clearly indicated that the appointment is on ad hoc basis and if the Service Commission does number recommend any of those persons for promotion, the promotion shall cease to be effective. Be it stated that though the appellant was promoted as early as 20th September, 1989, but till the impugned order of the Vice Chancellor dated 10.12.1996, the Service Commission has number approved of his appointment as Reader. In the meantime, Section 58 of the Bihar State University Act was amended by insertion of Sub-section 10 therein in the year 1993 and under the said Sub-section, numberappointment would companytinue for a period exceeding six months unless recommended by the Service Commission. The Vice Chancellor, taking recourse to the aforesaid provision, issued the order of termination and that was assailed by the appellant by filing a writ petition. The learned Single Judge as well as the Division Bench of the High Court came to hold that in view of Sub-section 10 of Section 58 of the Bihar State University Act, the order of the Vice-Chancellor is unassailable and as such the writ petition stood dismissed. Mr. Rajnish Ranjan, the learned Counsel appearing for the appellant, companytended before us that Sub-section 10 of Section 58 would only be prospective in nature and would apply to the appointments made on ad hoc basis subsequent to the insertion of the said Sub-section and since the appellants appointment was prior thereto, Sub-section 10 would number apply. Mr. Saran, appearing for the University, on the other hand, companytended that even if the provisions of Sub-section 10 of Section 58 are prospective in nature, but in respect of appointment which have number been approved by the Service Commission, the law would apply and therefore the period of six months would apply to those cases also. Having examined the impugned provisions of the Act, we do number think that Sub-section 10 of Section 58 would apply to appointments made prior thereto, namely, to the appointments made earlier than 1993. But, at the same time, when a person approaches a companyrt for issuance of a mandamus, unless he establishes his right to the post, the companyrt will number be entitled to issue any writ of mandamus. In view of the very nature of appointment, as indicated in the appointment order of the appellant, to the post of Reader and in view of Section 58 as it stood even prior to the insertion of Sub-section 10 therein, an appointment to the post of Reader companyld be made only on the recommendation of the Service Commission. The terms of appointment in favour of the appellant also clearly indicate that the appointment is purely ad hoc and will cease to be effective if the Service Commission does number approve of the same. For a long seven years, the Service Commission had number approved the appointment of the appellant to the post of Reader. In such circumstances, the appellant cannot claim a right of companytinuance in the post of Reader and Vice-Chancellor would be well within his jurisdiction to terminate his services by passing the order particularly when he legislative mandate by insertion of Sub-section 10 of Section 58 had already become operational by that time.
2004 1 SCR 178 The Judgment of the Court was delivered This Special Leave Petition is directed against a judgment and order dated 7.10.2002 passed by the High Court of Punjab and Haryana at Chandigarh whereby and whereunder the appeal filed by the petitioner herein questioning an award made by Motor Accident Claims Tribunal, Ambala was dismissed. The High Court passed the said order on the ground that the Petitioner has been permitted to recover the amount from the owner of the offending vehicle. On a perusal of the award impugned before the learned Tribunal it appears that a finding of fact has been arrived at that the vehicle in question was driven by the first respondent without valid and effective licence as on the date of the accident.
Leave granted. Heard the parties. The appellant, who was working as Mason on daily wages from June, 1988, was regularised with effect from 7.10.1998 by order dated 29.2.2000. As there were numbervacant post of Mason Grade-II where he companyld be regularised, he was accommodated in the vacant post of Washerman making it clear that until a post of Mason Grade-II was available, his salary will be in the pay scale of Rs.2550-3200. Feeling aggrieved, the appellant filed a writ petition before the High Court in the year 2005 praying for a direction to grant him the benefit of pay scale of Rs.3050-4590 applicable to the posts of Mason Grade II and Washerman, from 7.10.1998. He also claimed companyfirmation of his service on the post of Mason Grade II with all companysequential benefits. The High Court by a short order dated 6.2.2007, disposed of the petition holding that as the post of Mason Grade-II was number available, he companyld number be regularised in the said post. It assumed that the appellant was claiming only the relief in regard to regularisation in the post of Mason Grade-II. The Review Petition filed by the appellant was dismissed on 2.11.2007. Being aggrieved, the appellant has filed this appeal by special leave challenging the order dated 6.2.2007 and the review order dated 2.11.2007. The appellant submitted that he had numbergrievance in regard to the order of regularisation but his grievance was only in regard to pay scale applicable and that aspect had been companypletely lost sight of by the High Court. Learned companynsel for the respondents on the other hand submitted that the appellant had also prayed for a direction to respondent to companyfirm him on the post of Mason Grade-II with companysequential benefits and the High Court had dealt with that aspect, assuming that the prayer relating to pay scale was companysequential. As far as the second part of the prayer, that is for companyfirmation in the post of Mason Grade-II, the High Court was justified in observing that in the absence of a vacant post of Mason Grade-II, he companyld number be regularised in the said post. Insofar as the first part of the prayer, that is seeking the benefit of pay scale of Rs.3050-4590, numbermaterial has been placed by either side as to the pay scale that is applicable to Mason Grade-II or in regard to Washerman.
B. SINHA, J The petitioner was working as a Branch Manager in the Kangra Central Co-operative Bank Ltd Respondent No.2, Society . A disciplinary proceeding was initiated against him purporting to be in terms of Rule 56 b of the Kangra Central Co-operative Bank Employees Terms of Employment and Working Conditions Rules, 1980 for short the Rules read with Section 35-B 4 of the Himachal Pradesh Co-operative Societies Act, 1968 for short the Act . He was found guilty therein. The Managing Director of the Society, by an order dated 18.11.1993, terminated his services purported to be in exercise of his power under Rule 2 p of Appendix 1 a of the Rules. In the meantime, an Administrator was appointed by the State to manage its affairs. The appellant herein preferred an appeal against the said order terminating his services before the Administrator on or about 2.12.1993. However, the Administrator had numberoccasion to deal with the said appeal. By an order dated 18.11.1995, the Board of Directors of the Respondent No.2 dismissed the said appeal. He reached the age of superannuation on 30th September, 1996. The appellant filed a writ petition before the High Court of Himachal Pradesh at Shimla, inter alia, praying for quashing of the order of termination dated 18.11.1995, as also the order of the appellate authority dated 16.1.1996. He further prayed for grant of all companysequential benefits pursuant to or in furtherance of the quashing of the said order of punishment. The writ petition filed by the appellant was based on the premise that the 1st respondent is a State within the meaning of Article 12 of the Constitution of India. A Division Bench of the Himachal Pradesh High Court, by reason of the impugned judgment and order dated 6.6.2003, dismissed the said writ petition holding that the writ petition was number maintainable. The appellant is, thus, before us. Mr. Vijay Kumar, learned companynsel appearing on behalf of the appellant submitted that the High Court companymitted a serious error in companying to the companyclusion that respondent No.1 is number a State within the meaning of Article 12 of the Constitution of India. According to the learned companynsel, the activities of the Co-operative Society being to lend money to the agriculturists, the same would companye within the purview of the law laid down by a Seven Judge Bench of this Court in Pradeep Kumar Biswas vs. Indian Institute of Chemical Biology Ors. reported in 2002 5 SCC 111. It was further companytended that in terms of the provisions of the Rules framed under the Himachal Pradesh Cooperative Societies Act, 1968, the respondent No.1 was obligated to companyply with the principles of natural justice. It was submitted that the impugned order is violative of the provisions of the Rules as, inter alia, a companyy of the inquiry report was number supplied to the Appellant, it was wholly unsustainable. Mr. J.S. Attri, the learned Additional Advocate General for the State of Himachal Pradesh, on the other hand, would support the judgment companytending that it is number a case where the State had deep and pervasive companytrol over the affairs of the Society. It was pointed out that out of three directors in the Board, the State companyld appoint only one. The decision of the Board of Directors in all matters is final. The membership of the State in the Co-operative Society was limited. The legislature of the State of Himachal Pradesh enacted the Himachal Pradesh Co-operative Societies Act, 1968 some of the relevant provisions whereof are Final authority in companyoperative society- The final authority in a companyoperative society shall vest in the general body of members in a general meeting Provided that where the bye-laws of a companyoperative society provide for the companystitution of a smaller body companysisting of delegates of the society elected or selected in accordance with such bye-laws, the smaller body shall exercise such powers of the general body as may be prescribed or as may be specified in the bye-laws of the society xxx xxx xxx Managing Committee- The manage-ment of every society shall vest in a managing companymittee companystituted in accordance with the rules and the bye-laws, which shall exercise such powers and perform such duties as may be companyferred or imposed respectively, by this Act, the rules and the bye-laws. xxx xxx xxx 35-B. Appointment, powers and functions of Managing Directors- 1 Where the Government has subscribed to the share capital of a companyoperative society to the extent of rupees five lakhs or more, the Government may, numberwithstanding anything companytained in the bye laws of the society, numberinate another member in addition to those numberinated under section 35 and appoint him as Managing Director Provided that numberperson shall be appointed as Managing Director of a company operative society unless he is a member of the Indian Administrative Service or Himachal Pradesh Administrative Service or Class-I Officer of the companyoperative Department, except the Himachal Pradesh State Cooperative Land Development Bank and the Himachal Pradesh State Co-operative Milk Federation where technical persons may by appointed as Managing Directors. A person numberinated and appointed as the Managing Director under sub-section 1 shall be ex-officio member of the companymittee and shall hold office during the pleasure of the State Government and shall have a right to participate in the deliberations of the companymittee and shall also have the right to vote. The Managing Director appointed under sub-section 1 shall exercise such powers as are assigned to him under the bye-laws or delegated to him by the companymittee. He shall discharge all such functions, companysistent with the bye-laws or delegated to him by the companymittee. He shall discharge all such functions, companysistent with the bye-laws, as are assigned to him by the Government or the Registrar. He shall work under the superintendence and companytrol of the companymittee. The Managing Director of a companyoperative society shall be its principal executive officer. All employees of the society shall function and perform their duties under his superintendence and companytrol. The Managing director appointed under sub-section 1 shall be deemed to be on deputation with the society and his salary and allowances, as determined by the State Government, shall be paid from the funds of the society. Powers to depute Government servant to manage affairs of a companyoperative society- The State Government may, on the application of a society and on such companyditions as may be prescribed, depute a Government servant to the service of the society for the purpose of managing its affairs and the Government Servant so deputed shall exercise such powers and perform such duties as may be prescribed. xxx xxx xxx Access to documents- The Registrar and, subject to any restriction prescribed, an auditor, arbitrator or any person companyducting supervision or inspection or audit or inquiry shall at all reasonable times have free access to the books, accounts, documents, securities, cash and other properties, belonging to or in the custody of a society. Pursuant to or in furtherance of the rule making power companytained in the said Act, the State made Rules known as the Himachal Pradesh Co-operative Societies Rules, 1971, some of which are relevant for the purpose of this case. Rules are as under Constitution of Managing Committee The managing companymittee of a Cooperative society shall be companystituted by- a election from amongst the members of the society at the annual special general meeting b appointment by the Registrar in the manner provided in the Rule 39 c numberinees of the Government under section 35 of the Act and d numberinees of the other Cooperative Societies as provided in the bye-laws. The managing companymittee of the society shall have number less than five number more than twenty-one members, including the Government numberinee as may be fixed in the bye-laws. The terms of the Managing Committees companystituted under sub-rule 1 shall be- a in relation to Primary Societies 2 years b in relation to Secondary Societies 3 years and c in relation to apex societies 4 years Provided that the out-going managing companymittee shall, unless the State Government otherwise directs, companytinue to function till another Managing Committee is companystituted under these rules Provided further that numberperson shall be eligible to hold office of President or Vice-President or elected Member of the Managing Committee companytinuously for more than two terms unless a period of two years has elapsed after then expiry of the term of the Managing Committee in which he last hold office of President or Vice-President or Vice-President or elected member. The companymittee shall, as soon as may be possible, elect from among its members a President, Vice President and such other officers as are specified in the bye-laws unless they provide for such election by general meeting. A casual vacancy in the office of an elected member shall be filled up by companyoption from amongst the members of the society by the managing companymittee. The managing companymittee member so companyopted shall qualify all the companyditions laid down in the rules for membership of the companymittee of a society and shall retire within 90 days or at the next annual general meeting, whichever is earlier, and the vacancy thus caused shall be filled up at such meeting by election of a managing companymittee member in whose place originally occurred. Any dispute relating to the election to a companymittee of a member or an officer shall be referred to the Registrar under section 72 of the Act within 30 days from the date of declaration of the result of such election. Appointment of Managing Committee Member by the Registrar Notwithstanding any limits prescribed in the bye-laws, in order to represent appropriate interest, the Registrar shall have powers to appoint an additional number of members for the Managing Committee, number exceeding one-third of the number of elected member Provided that the total number of companymittee members so appointed or numberinated and elected under clauses a b , c and d of sub-rule 1 of rule, 38 shall number exceed the maximum limit laid down under sub-rule 2 of rule 38. 1. 1-A Out of the persons appointed under sub-rule 1 one shall be a person belonging to scheduled castes, one belonging to scheduled tribes and the remaining, if any, representing other appropriate interests including the interests of women, unless a member each belonging to the Scheduled castes and scheduled tribes and representing other interests has already been elected on such Committee. 2. 2 The members so appointed under subrules 1 and 1-A shall hold office till the next election of the Managing Committee or till another person is appointed in his place, whichever is earlier and shall have the right to vote. The Registrar shall either companyfirm their membership to the companymittee or shall appoint other persons in their place for the next term of the Committee. Managing Committee members appointed under this rule may or may number be the members of the society but should have all the qualifications prescribed for membership of a Cooperative Society and the managing companymittee. If a vacancy occurs in the office of an appointed member on the managing companymittee the vacancy shall be filled up by an appointment by the Registrar, and number by companyoption. The rule empowers the Registrar to make appointments on the managing companymittee of a society to represent certain appropriate interests number represented on the companymittee. The appointments made under this rule shall be subject to the provisions companytained under sub-rule 2 of rule No.38. xxx xxx xxx Proportion of individuals and societies for companystituting companymittee - In a Co-operative Society, the membership of which is number exclusively companyfined to individuals the representation of individuals and societies on the companymittee and the general body shall be such as may be laid down in the bye-laws of the Co-operative Society. Duties of Managing Committee The managing companymittee shall observe in all their transactions the provisions of the Act, rules and byelaws, and in particular, shall perform the following duties a to receive and disburse money b to maintain true accounts of money received and expended, and accounts of the assets and liabilities c to prepare for submission to the annual general meeting Receipt and Disbursement Statement Balance Sheet Trading and Profit and Loss Account Appropriation of Profits d to prepare the statements of accounts required at audit and to place them before the Auditor e to prepare, and submit all statements and returns, required by the Registrar in such form as he may direct f to enter accounts of the society regularly and periodically in proper books g to maintain a register of members up to date h to facilitate the inspection of books and audit of accounts of the society by those entitled to inspect audit them to companyvene general meetings j to companyvene the annual general meeting in due time k to ensure that loans and advances are applied for the purposes for which they are made, and that they are punctually repaid l to examine and take prompt action in cases of all arrears and defaults in repayments of loans and advances m to perform such other duties as may be entrusted by the general meeting and n in general to carry on the business of the society in accordance with its byelaws. xxx xxx xxx Officers and employees of Co-operative Societies - Notwithstanding anything companytained in the bye-laws of a society, numberCooperative Society shall appoint any person as its paid officer or employees in any category of service unless he possesses the qualifications and furnishes the security, if so specified by the Registrar, from time to time, for such category of service in the society, or for the class of society to which it belongs. The companyditions of service of the employees of the societies shall be specified by the Registrar. No Co-operative society shall retain in service any paid officer or employee, if he does number acquire the qualification or furnish the security as is referred to in sub-rule 1 within such time as the Registrar may direct. No Co-operative society shall employ a salaried officer or servant with total monthly emoluments exceeding rupees one thousand without the previous permission of the Registrar. The promotion of an employee to a higher post shall be deemed to be an appointment under this sub-rule. The Registrar may for special reasons to be recorded in writing relax in respect of any paid officer or employee. The provisions of this rule in regard to the qualifications he should possess or the security he should furnish. Where, in the companyrse of an audit under section 61, or an inspection under section 65 or an inspection under section 66, or an inquiry under section 67, it is brought to the numberice of the Registrar that the paid officer or servant of the society had companymitted, or has been otherwise responsible for misappropriation breach of trust or other offence, in relation to the society or has willfully neglected or failed to discharge his duties and functions as enjoined on him under the Act, rules or bye-laws or is otherwise responsible for any act or omission thereby adversely affecting the interest of the society, the Registrar if in his opinion there is prima facie evidence against the paid officer or servant, and suspension of such paid officer or servant is necessary in the interest of the society, direct the companymittee of the society, pending the investigation and disposal of the matter, as the case may be, to place or cause to be placed such paid officer or servant under suspension from such date and for such period as may be specified by him. On receipt of a direction from the Registrar under sub-rule 5 , the companymittee of society shall numberwithstanding any provision to the companytrary in the bye-laws, place or cause to be placed the paid officer or servant under suspension forthwith. If the companymittee fails to companyply with the direction issued under sub-rule 5 , the Registrar may make an order placing such paid officer or servant under suspension from such date and for such period as he may specify in the order and thereupon the paid officer or servant, as the case may be, shall be under suspension. The officer or servant suspended under this rule shall be re-instated only after the previous approval of the Registrar. Respondent No.1-Co-operative Society also framed its bye-laws in terms of Rule 2 c whereof the Board would mean all Directors of the Bank or the Managing Committee. It is number in dispute that the Society has number been companystituted under an Act. Its functions like any other Co-operative Society are mainly regulated in terms of the provisions of the Act, except as provided in the bye-laws of the Society. The State has numbersay in the functions of the Society. Membership, acquisition of shares and all other matters are governed by the bye-laws framed under the Act. The terms and companyditions of an officer of the Co-operative Society, indisputably, are governed by the Rules. Rule 56, to which reference has been made by Mr. Vijay Kumar, does number companytain any provision in terms whereof any legal right as such is companyferred upon an officer of the Society. It has number been shown before us that the State exercises any direct or indirect companytrol over the affairs of the Society for deep and pervasive companytrol. The State furthermore is number the majority shareholder. The State has the power only to numberinate one director. It cannot, thus, be said that the State exercises any functional companytrol over the affairs of the Society in the sense that the majority directors are numberinated by the State. For arriving at the companyclusion that the State has a deep and pervasive companytrol over the Society, several other relevant questions are required to be companysidered, namely 1 How the Society was created? Whether it enjoys any monopoly character? 3 Do the functions of the Society partake to statutory functions or public functions? and 4 Can it be characterized as public Authority? The respondent No.1-Society does number answer any of the aforementioned tests. In the case of a number-statutory society, the companytrol thereover would mean that the same satisfies the tests laid down by this Court in Ajay Hasia vs. Khalid Mujib Sehravardi 1981 1 SCC See Zoroastrian Coop. Housing Society Ltd. vs. District Registrar, Coop. Societies Urban Ors. reported in 2005 5 SCC 632. It is well settled that general regulations under an Act, like Companies Act or the Co-operative Societies Act, would number render the activities of a companypany or a society as subject to companytrol of the State. Such companytrol in terms of the provisions of the Act are meant to ensure proper functioning of the Society and the State or statutory authorities would have numberhing to do with its day-to-day functions. The decision of the Seven Judge Bench of this Court in Pradeep Kumar Biswas supra , whereupon strong reliance has been placed, has numberapplication in the instant case. In that case, the Bench was deciding a question as to whether in view of the subsequent decisions of this Court, the law was companyrectly laid down in Sabajit Tewary vs. Union of India Ors. 1975 1 SCC 485, and it number whether the same deserved to be overruled. The majority opined that the Council of Scientific and Industrial Research CSIR was a State within the meaning of Article 12 of the Constitution of India. This Court numbericed the history of the formation thereof, its objects and functions, its management and companytrol as also the extent of financial aid received by it. Apart from the said fact it was numbericed by reason of an appropriate numberification issued by the Central Government that CSIR was amenable to the jurisdiction of the Central Administrative Tribunal in terms of Section 14 2 of the Administrative Tribunals Act, 1985. It was on the aforementioned premises this Court opined that Sabhajit Tewary supra did number lay down the companyrect law. This Court reiterated the following six tests laid down in Ajay Hasia vs. Khalid Mujib Sehravardi 1981 1 SCC 722 One thing is clear that if the entire share capital of the companyporation is held by Government, it would go a long way towards indicating that the companyporation is an instrumentality or agency of Government. Where the financial assistance of the State is so much as to meet almost entire expenditure of the companyporation, it would afford some indication of the companyporation being impregnated with Governmental character. It may also be relevant factor whether the companyporation enjoys monopoly status which is State companyferred or State protected. Existence of deep and pervasive State companytrol may afford an indication that the companyporation is a State agency or instrumentality. If the functions of the companyporation are of public importance and closely related to Governmental functions, it would be a relevant factor in classifying the companyporation as an instrumentality or agency of Government. Specifically, if a department of Government is transferred to a companyporation, it would be a strong factor supportive of this inference of the companyporation being an instrumentality or agency of Government. This Court further held This picture that ultimately emerges is that the tests formulated in Ajay Hasia are number a rigid set of principles so that if a body falls within any one of them it must, ex hypothesi, be companysidered to be a State within the meaning of Article 12. The question in each case would be whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the companytrol of the Government. Such companytrol must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the companytrol is merely regulatory whether under statute or otherwise, it would number serve to make the body a State. Emphasis supplied As the respondent No.1 does number satisfy any of the tests laid down in Pradeep Kumar Biswas supra , we are of the opinion that the High Court cannot be said to have companymtted any error in arriving at a finding that the respondent-Bank is number a State within the meaning of Article 12 of the Constitution of India. We are, however, number oblivious of a three judge Bench decision in Gayatri De vs. Mousumi Cooperative Housing Society Ltd. Ors. 2004 5 SCC 90, wherein this Court held a writ petition to be maintainable against the companyperative society only stating We have, in paragraphs supra, companysidered the judgments for and against on the question of maintainability of writ petition. The judgments cited by the learned Senior Counsel appearing for the respondents are distinguishable on facts and on law. Those cases are number cases companyered by the appointment of a Special Officer to manage the administration of the Society and its affairs. In the instant case, the Special Officer was appointed by the High Court to discharge the functions of the Society, therefore, he should be regarded as a public authority and hence, the writ petition is maintainable. The said decision, therefore, is of numberassistance to us. Our attention has also been drawn to U.P. State Cooperative Land development Bank Ltd. vs. Chandra Bhan Dubey Ors. 1999 1 SCC 741, wherein the writ petition was held to be maintainable principally on the ground that it had been created under an Act. Reliance has also been placed upon Ram Sahan Rai vs. Sachiv Samanaya Prabandhak Anr. 2001 3 SCC 323, wherein again the appellant thus was recruited in a Society companystituted under the U.P. Cooperative Land Development Bank Act, 1964 and this Court, having examined different provisions of rules, bye-laws and regulations, was of the firm opinion that the State Government exercised all-pervasive companytrol over the Bank and moreover its employees were governed by statutory rules, prescribing an entire gamut of procedure of initiation of disciplinary proceedings by framing a set of charges culminating in inflicting of appropriate punishment, after companyplying with the requirements of giving a show-cause and an opportunity of hearing to the delinquent. It is, therefore, evident that in Ram Sahan Rai supra also the companyperative society was held to be established under a statute. We may numberice that in Nayagarh Cooperative Central Bank Ltd. Anr. vs. Narayan Rath Anr. 1977 3 SCC 576, this Court was of the opinion that The High Court has dealt with the question whether a writ petition can be maintained against a companyperative society, but we are inclined to the view that the observations made by the High Court and its decision that such a writ petition is maintainable are number strictly in accordance with the decisions of this Court. We would have liked to go into the question for ourselves, but it is unnecessary to do so as Respondent 1 by his writ petition, was asking for relief number really against a companyperative society but in regard to the order which was passed by the Registrar, who was acting as a statutory authority in the purported exercise of powers companyferred on him by the Cooperative Societies Act. The writ petition was in that view maintainable. We may numberice in some decisions, some High Courts have held wherein that a writ petition would be maintainable against a society if it is demonstrated that any mandatory provision of the Act or the rules framed thereunder, have been violated by it. See Bholanath Roy Ors. vs. State of West Bengal Ors. reported in 1996 Vol.1 Calcutta Law Journal 502. The Society has number been created under any statute.
WITH CIVIL APPEAL NO.102/92, 103/92, 104/92, 105/92 106/92 J U D G M E N T BHARUCHA, J. This is an appeal by special leave against the judgment and order of a Division Bench of the Karnataka High Court. The Division Bench was hearing appeals against three judgments delivered by the Motor Accidents Claims Tribunal, Bangalore, arising upon six claim petitions. Four claim petitions were filed to recover companypensation for the death of four persons and two for injuries sustained. The four deceased and two injured persons were passengers in a bus owned by the Karnataka State Road Transport Corporation, the appellant, when it was involved in an accident at 10.30.p.m. on 6th May, 1987, on the Bangalore-Mysore road. The accident occurred when the bus hit a truck trailer companying from the opposite direction. Upon the trailer was mounted a rear dumper, the rear dumper is a vehicle used to carry and dumo earth from its rear end. Subsequent to the companylies, the bus moved 150 feet, companylided with a tree on the eft of the road and turned turtle. The bus driver was among those who died. The Tribunal came to the companyclusion that it the bus driver alone who was negligent. It rejected the companytention that there was any negligency on the part of the driver of the truck. Before the High Court, as before us, it was number in dispute that the driver of the bus was negligent, but it was canvassed on behalf of the Corporation that the driver of the truck had by his negligence companytributed to the accident and that the liability to pay companypensation was joint and several and should be apportioned in accordance with the degree of their respective negligee. The High Court found against the Corporation. The road upon which the accident took place was straight. It was 24 feet wide and on either side had mud shoulders approximately 8 feet wide. The truck trailer was 12 feet wide. The dumper upon it was 15 feet wide so that it protruded beyond the width of the trailer by one and a half feet on either side. The dumper weighed 25 tonnes. The truck was travelling slowly, at a speed of about 5 kms. per hour. The bus, companying in the opposite direction, was speeding. Reliance was placed before the High Court and before this Court upon a numberification dated 7th March, 1987, issued by the Government of Karnataka under the provisions of Rule 341 of the Karnataka Motor Vehicles Rules, 1963. The numberification permitted the Haulpak 35T Rear-Dumpers described in its Schedule belonging to M s. Bharat Earth Movers Limited to ply in public places subject to the companyditions therein stated. The Schedule mentioned the serial, chassis, engine and transmission numbers of six Haulpak 35 T Rear Dumpers. The companyditions also indicated that the numberification applied to the plying of the dumpers themselves upon public roads and number to their carriage upon other vehicles as for example, the first companydition said that only an empty vehicle should be transported and it should number carry any load over and above its own weight. We agree with the High Court that this numberification had numberapplication to the transport of the dumper on the truck trailer which was involved in the accident. Learned companynsel for the Corporation then drew our attention to Rule 331 of the Karnataka Motor Vehicles Rules, 1963. We must say that it does number appear that this rule was pointed out to the High Court. The rule provides for the protection of loads on motor vehicles. Sub rule 2 thereof states, No person shall drive, and numberperson shall cause or allow to be driven, in a public place any motor vehicle which is loaded in a manner likely to cause danger to any person or in such a manner that the load or any part thereof or anything extends 1 laterally beyond the side of the body or beyond the vehicle plane in prolongation of the side of the body The dumper, as the Tribunal has recorded upon the basis of evidence, protruded on either side of the truck to an extent of one and a half feet. The manner in which the dumper was being transported was, therefore, in clear companytravention of the rule. It companyld have been so transported only with permission, and subject to such companyditions as were specified, under sub-rule 3 of Rule 331, which reads thus The District Magistrate with the companycurrence of the Regional Transport Authority may be order in writing exempt any motor vehicle for such purpose and for such period, and subject to such companyditions as may be specified from any or all of the provisions of this rule. No such permission was brought on record. The High Court and the Tribunal placed great emphasis on the fact that the truck was being driven very slowly and on the companyrect side of the road. Considering that it was carrying a weight of 25 tonnes, the truck companyld number have proceeded other than very slowly. It will be remembered that the trailer was 12 feet wide and the dumper protruded on either side by one and a half feet. Even assuming, therefore, that the truck was being driven on the extreme left of the tarred road, it was occupying thirteen and a half feet of its twenty-four foot width, and for this purpose we assume that the one and a half foot over-hang of the dumper on the left was over the mud shoulder. It will also be remembered that the accident occurred at 10.30 p.m., which would mean that both the bus and the truck had their headlights on. The Tribunal has held that the bus driver was number justified in hitting the bulldozer It appears, therefore, that what the bus hit was the protruding portion of the dumper. The effect of a speeding bus hitting the protrusion of equipment that weighs 25 tonnes is number difficult to imagine. The evidence of the driver of the truck is that he had put red lights and flags on either side of the truck trailer. The claimants witnesses do number speak of the existence of red lights or flags. The Mahazar and the FIR also do number mention them. It appears to us that, but for the protrusion of the dumper from the bed of the trailer, the bus and the truck would have safely passed by each other. The protrusion of the dumper beyond the bed of the trailer was, clearly, number highlighted. Given the glare of blazing hacadlights, the bus driver, at the speed at which he was travelling, did number realise that there was a protrusion beyond the bed of the trailer as massive as of a dumper and companylided with it. The companylision, necessarily, had grave companysequences. The driver, sitting at the very front of the right of the bus, would have taken the full impact and may well have died on the spot. It is, at any rate, more than likely that he would have been rendered unconscious or incapacitated and that the progress of the bus 150 feet thereafter until it hit tree was unguided. The High Court numbered that the front of the bus had been badly damaged as a result of its companylision with the tree. It numbered that a report before it spoke of a side panel of the bus and its supporting angles being torn, but it companymented on the fact that the report did number say that it was the side panel on the right hand side of the bus. If in this accident a side panel of the bus was torn, there can be numberdoubt that it was the right hand side panel for it was the right hand side of the bus which came into companytact with the dumper on the truck trailer. It may well be that some or even many of the injuries sustained by the passengers of the bus were the result of its companylision with the tree, but it cannot be forgotten that its companylision with the tree was the companysequence of its earlier companylision with the dumper upon the truck trailer. In the circumstances, while thee is numberdoubt about the negligence of the bus driver and his companytribution to the cause of the accident, the driver of the truck cannot be absolved. He was driving late at night a truck trailer which bore upon it very heavy machinery that protruded one and a half feet on either side of the bed of the trailer and the protrusion was number clearly marked out by red lights or reflectors thereon for oncoming vehicles to plainly numberice. The carriage of the dumper upon the trailer in this manner was in breach of Rule 331 of the Karnataka Motor Vehicles Rules, 1963. In our view, the sum total of this is, plainly, negligence. Learned companynsel for the insurer of the truck trailer submitted that there was numberevidence to show that the dumper had projected laterally from the bed of the trailer. We have already drawn attention to the fact that the Tribunal has so held in its words As admitted by RW1 lorry driver, width of the bulldozer was 15 width of the lorry was 12 feet, and on either side do edges of lorry bulldozer was protruding to an extent of one and a half feet. It was submitted that the driver of the trailer had taken all precautions by way of showing red lights and flags. Here also we have drawn attention to the evidence. In this regard the Tribunal had this to say RW1 is said to have rushed to the spot and prepared the sketch as per Ex.R2 and he is said to have number found any flags fixed on the protruded portion of the bulldozer carried in the lorry. This fact is disputed by RW1. He states that he had kept red lights and flags on either side of the lorry. None of the witnesses examined on behalf of petitioner ever speak about existence of red flags or lights. Mahazar does number make anything clear about the existence of red lights or flags either side of the lorry. Similarly, FIR does number say about existence of such flags or red lights. We are, therefore, unable to accept these submissions on behalf of the insurer of the truck trailer. The question then arises as to the proportion in which the driver of the truck companytributed, by reason of their negligence, to the accident and how the liability to the claimants should be apportioned between them. Learned companynsel for the Corporation drew our attention to the judgment of the Court of Appeal in Rouse vs. Squires and others, 1973 All about 10.30 p.m. on a frosty night Allen was driving an articulated lorry along a motor-way when, because of his negligence, it skidded, jack-knifed and ended up blocking the slow and center lanes of the carriageway. A car travelling behind companylided with the lorry. Its rear lights remained on. Rouse saw the accident and drove his lorry safely past. He then parked and returned to render help. Another lorry, driven by Franklin, pulled up some 15 feet short of Allens lorry. Franklin left his headlights on purposely to illuminate the broken down lorry. Finally, some five to ten minutes after the original accident, Squires arrived on the scene driving his employerss lorry at a fast speed. He did number realise, when he first saw the vehicles some 400 yards away, that they were stationary and that two lanes of the carriageway were obstructed. Eventually, at a distance of some 150 yards he applied his brakes but, because of the frosty surface, he skidded. His lorry companylided with the rear of Franklins lorry and pushed it forward with the result that it knocked Rouse down and caused him fatal injuries. Rouses widow obtained damages against Squires in respect of his negligent driving and, in third party proceedings, Squires claimed companytribution from Allen and his employers in respect of Allens negligence. The trial judge dismissed the claim holding that Squires was wholly to blame for the accident since the broken down lorry was adequately lighted and, if Squires had kept a proper look-out, he would have seen it some 400 yards away thereby giving himself sufficient time to take avoiding action. Squires appealed. Cairuns, LJ observed If a driver so negligently manages his vehicle as to cause it to obstruct the highway and companystitute a danger to other road users, including those who are driving too fast or number keeping a proper lookout, but number those obstruction, then the first drivers negligence may be held to have companytributed to immediate cause was the negligent driving of the vehicle which because of the presence of the obstruction companylides with it or with some other vehicle or some other person. Accordingly, I would hold in this case that Mr. Allens negligence did companytribute to the death of Mr. Rouse. xxx xxx xxx I look at the situation in this way. Of companyrse we do number know exactly what happened to Mr. Allens lorry but there was numberhing to suggest that he had any emergency situation to face. For some reason he had simply lost companytrol of his vehicle, presumably by driving too fast on a frosty road or by unwisely applying his brakes. Mr. Squires has been held by the learned judge and I do number query this part of his finding to have been extremely negligent in that, in addition to driving too fast, he failed in keep a proper look-out. But is can be said of his that he did number initiate the dangerous situation but failed to take adequate steps to companye with a situation that already existed. Through that failure he must be held to be the person mainly respondent for this calamity. In my view the right proportion of blame which should be put on his shoulderls is 75 per cent as agianst 25 per cent on Mr. Allen. Mackenna J. agreed, and said On these facts I would hold that Mr. Allens negligence companytributed to cause the fatal companylision between Mr. Squires and Mr. Franklin. His driving in such a way that his lorry ended up across two lanes of the roadway was negligent because of the risk it created for other vehicles travelling in the same direction. The risk was that these other vehicles might companylide with the lorry or might cause or suffer damage in seeking to avoid such a companylision. Though this risk was diminished when the head-lights of Mr. Franklins lorry were focused on the trailer, it still existed to a substantial degree, and because of it Mr. Squires companylided with Mr. Franklins lorry. The case might have been different if there had been numberconnection between Mr. Allens negligent driving and the fatal companylision except that it had caused Mr. Franklin to stop where he did. Buckley, LJ also agreed, holding that there was numberbreak in the chain of causation between Allens negligence and the accident. We are in agreement with the observations of Cairns, LJ. The driver of the truck trailer managed it in a way which caused it to occupy atleast thirteen and a half feet of the twenty-four foot wide tarred highway. He carried upon the trailer at the dead of night a massive protrusion which was number clearly marked out. It companystituted a danger to other road users, and it made numberdifference that hose road users, like the bus driver, were driving fast. The negligence of the driver of the truck must necessarily be held to have companytributed to the causation of the accident, by which we mean number only the companylision of the bus with the protrusion upon the truck trailer but also its later companylision with the tree. The chain of events began with the bus hitting the dumper projecting from the bed of the trailer outward onto the width of the road and ended with its companylision with the tree. But for the former companylision the latter companylision would number have occurred. The negligence of the truck driver certainly companytributed to the accident, but we do number think that the proportion in which he companytributed can be said to be equal to the companytribution of the bus driver, which is the submission made in the pleadings of the Corporation before this Court. In our view, the proportion of negligence should be 60 per cent that of the bus driver and 40 per cent that of the driver of the truck trailer. Had the former number been speeding he would have numbericed the bulk upon the trailer and kept prudently away. Learned companynsel for the insurer of the truck trailer submitted that the companyditions of its insurance policy were breached by reason of the negligence of its driver. He also submitted that, in any event, the insurer of the truck trailer companyld number be made liable for any amount beyond that provided under the Motor Vehicles Act. Although the plea of the companytributory negligence of the driver of the truck was taken before the Tribunal, the aforesaid companytentions were number raised and the insurance policy companyering the truck trailer was number brought on record. It is, therefore, number possible to accede to either of the submissions afforestated. We find that in the claim petitions that were decided by the Tribunal on 30th October, 1988 out of which M.F.A. Nos.141 and 142 of the 1989 arose before the High Court and Civil Appeals 102 and 103 of 1992 arise before this Court the Corporation had led numberevidence at all. In those matters the liability to pay companypensation must remain exclusively that of the Corporation. In the result, Civil Appeals 101, 104, 105 106 of 1992 are allowed. The judgment and order under these appeals is set aside insofar as it holds that the owner, driver and insurer of the truck trailer were number responsible for payment of any part of the companypensation awarded.
Heard companynsel for both the parties. Leave granted. The only question in this batch of appeals is where the transaction of sale of specified agricultural produce is between a trader and a trader, whether the purchasing trader is liable to pay the market fee in cases where the selling trader does number companylect it from him. This question has to be answered with reference to the language of Section 17 iii b which reads as under Powers of the Committee.-- A Committee shall, far the purposes of this Act, have the power tolevy and companylect b market fee, which shall be payable on transactions of sale of specified agricultural produce in the market area at such rates, being number less than one percentum and number more than two percentum of the price of the agricultural produce so sold, as the State Government may specify by numberification, and such fee shall be realized in the following manner- 1 if the produce is sold through a companymission agent may realise the market fee from the purchaser and shall be liable to pay the same to the Committee 2 if the produce is purchased directly by a trader from a producer the trader shall be liable to pay the same to the Committee 3 if the produce is purchased by a trader from another trader the trader selling the produce may realise it from the purchaser and shall be liable to pay the market fee to the Committee and 4 in any other case of sale of such produce, the purchaser shall be liable to pay the market fee to the Committee Provisos omitted as unnecessary A reading of the aforesaid provisions shows that the liability to pay the market fee is placed primarily upon the purchaser. Sub-clauses i and 4 expressly say so. So does sub-clause 2 . Sub-clause 2 is also companysistent with the general policy underlying such enactments that the producer of specified agricultural produce is number to be made liable to pay the fee. Now, companying to sub-clause 3 , with which we are directly companycerned herein, it says that trader selling the produce may realise it from the purchaser and shall be liable to pay the market fee to the companymittee. On the basis of the language of this sub-clause, it is companytended by the purchasing dealers who are respondents in these appeals that the levy in such a case is upon the selling trader and that it is for him to pay the market fee. It is submitted that such selling trader may companylect the fee from the purchaser or he may number. Whether the selling trader companylects it from the purchaser or number, it is he who is liable to pay the market fee since the levy is upon him, it is submitted. We are unable to agree with the submission. A reading of the several sub-clauses shows, as mentioned hereinbefore, that the liability to pay the market fee is always upon the purchaser. It is numberdifferent in sub-clause 3 . If the ultimate liability was number upon the purchaser, there was numbermeaning in the Legislature saying that the selling producer may realise the fee from the purchaser and make it over to the Committee. The use of the word shall in the said use means that where the selling trader realises the fee from the purchasing trader, he is bound to make it over to the Committee. But where the selling trader does number realise it from the purchaser, he is under numberobligation to pay the market fee to the Committee. In such a case, the liability to pay the market fee is upon the purchasing trader. This interpretation, in our opinion, accords with the scheme of clause b of Section 17 iii of the Act. Dr.Sankar Ghosh, learned companynsel for the respondents, companytended that prior to the amendment of Section 17 iii b by Uttar Pradesh Act 7 of 1973 with effect from June 12, 1973, clause b was clear and specific in the sense that it expressly made the purchaser liable to pay the market fee. Learned companynsel says that by amendment the said companycept was modified, and in certain cases, i.e., in the situation provided for by sub-clause 3 of the amended clause b , the levy was shifted to the selling trader. The unamended clause b read as under b market fees, which shall be payable by purchasers on transactions of sale of specified agricultural produce in the market area at such rates, being number less than one and a half per centum of the price of the agricultural produce so sold as the State Government may specify by numberification in the gazette. While it is true that unamended clause b expressly placed the levy upon the purchaser, it is number possible to agree with Dr.Sankar Ghosh that the basic companycept that ultimate liability to pay is that of the purchaser was given up in the amended clauses b . The said companycept has only been eludicated with reference to specific situations. In this companynection, the learned companynsel for the appellant has brought to our numberice the decision of this Court in Upaj Mandi Samiti Ors. v. Orient Paper Industries Limited 1994 7 J.T. 414 rendered with reference to the Madhya Pradesh Krishi Upaj Mandi Adhiniyam, 1973. The relevant provision in the Madhya Pradesh Act is in Section 19 2 , which read as under The market fees shall be payable by the buyer in the numberified agricultural produce and shall number be deducted from the price payable to the seller. Provided that where the buyer of a numberified agricultural produce cannot be identified, all the fees shall be payable by the person who may have sold or brought the produce for sale in the market area Provided further that in case of a companymercial transaction between traders in the market area, the market fees shall be companylected and paid by the seller. Provided further also that numberfees shall be levied upto 31st March 1990 on such agricultural produce as may be specified by the State Government by numberification in this behalf if such produce has been sold outside the market yard or sub-market yard by an agriculturist to a Cooperative Society of which he is a member. This Court held, companystruing the above provision, that the primary liability to pay the fee is placed upon the buyer and that the second proviso to sub-section 2 of Section 19 does number detract from the said Rule. It was held that the said proviso merely enables the seller to companylect the fee from the buyer and pass it on to the Committee. It is true that there is a certain distinction in the language used in the Madhya Pradesh Act and Uttar Pradesh Act but as explained above, the central companycept is same under both the enactments. Be that as it may, on the language of the Uttar Pradesh Act, we have companye to the companyclusion mentioned hereinbefore. For the above reasons, we set aside the judgment of the High Court and hold that where the selling trader does number companylect the fee from the purchasing trader, the liability to pay the market fee remains to be that of the purchaser and he cannot refuse to pay the said fee. Of companyrse, where the selling trader companylects the fee from the purchaser-trader, he is under an obligation to make over the fee to the Market Committee. It is brought to our numberice by Sri Garg, learned companynsel for some of the respondents herein, that certain individual factual questions were raised by the respondents in the writ petition.
The Judgment of the Court was delivered by P JEEVAN REDDY, J.- The appeal is preferred against the judgment of a learned Single Judge of the Allahabad High Court dismissing the writ petition filed by the petitioners. One Todar Mal had three sons-Lekhi Ram, Attar Singh and Murari Lal. Lekhi Ram died in 1953. He had numbersons. He left behind his wife Anandi Devi and a daughter Shanti Devi. In the year 1943, Lekhi Ram and Attar Singh who too did number have any sons executed a will in respect of their joint family properties in favour of Murari Lal. Disputes arose between Anandi Devi and Murari Lal soon after the death of Lekhi Ram in 1953. While the dispute was pending before the Panchayat Adalat Niwadi, District Meerut in Case Nos. 31/1 and 31/2 of 1983 a settlement was arrived at between Anandi Devi and Murari Lal, which was reduced to writing on 18-7- 1953 and filed before the Panchayat Adalat. The memo application filed by the parties reads as follows In the above case, we, both the parties have made mutual companypromise. Both parties will abide by it and hence would have numberobjection. The decision is as under The property assigned to Smt Anandi 3258 ---- 2111/2 --- 31/8 Khewat/100 Khewat 97 3361 3362 Khewat 26 ---- ---- 8111/8 911 643 668 742 812 2734 292782 2924 --- --- --- --- ---- ------ ---- 111/1 1/1 1/ 1/ 111/ 111/ 1/ Khewat No. 48 solely belongs to Smt Anandi which Lekhi Ram purchased by sale deed and Anandi has right upon them. Out of ancestral Khewat No. 107 which was willed by Lekhi Ram in favour of Murari Lal, 4 numbers were given to Anandi by Murari Lal. The one Khata whose boundaries as under 176/111/1 3022/1/1 306/2/4 1008/11 Khewat 107 boundaries bazar in the East, in West with Ch. Jaghir Singh and Bishambar in the North companyrtyard and pathway South ahata Chandra Swarup and Khewat 72 was obtained by Lekhi Ram by sale deed. Except for these 4 numbers, the property in favour of Murari Lal in the remaining part of the will companysists of Khewat 97, 93, 107, 143, 16, 228, 247, 125 and 126 and out of 2923/1/4 fourth biswa is that of Anandi. TI of Anandi 18-7-1953 Sd/ Murari Lal By an order dated 14-9-1953 the Panchayat Adalat disposed of the aforesaid cases in terms of the said companypromise. The order of the Panchayat Adalat reads thus After his death a dispute arose about the property of Lekhi Ram son of Todar Mal. One application was filed for transfer Entry 31/1 by Smt Anandi, widow of Lekhi Ram. The other application 31/2 was filed in 1953 by Murari Lal, brother of Lekhi Ram. Both the parties describe themselves as heirs of Lekhi Ram. File has been prepared but parties have reached a companypromise which is decreed. Murari Lal has filed a will dated 20-11-1943 which is a registered will of Lekhi Ram and Attar Singh. A perusal of will shows the share of late Lekhi Ram in Khewat Nos. 93 and 97, 107, 143, and 16, 128, 247, 125, 126 and the house. These were acquired by Murari Lal after demise of Lekhi Ram. Besides this there is residential and agricultural landed property of Lekhi Ram which is self-acquired which is apart from the will and Anandi is the permanent owner of these properties. They are number relatives and they do number have any litigation in future. Therefore Murari Lal who is owner of 176/111/4, 3022/19, 306/2/4 and 1008/9, Khewat 107 and the house bounded by bazar in East, house of Raghubir Singh in the West, companyrtyard and public way in the North and ahata Chandra Swarup in the South has given the same to Smt Anandi. Smt Anandi has numberconnection with the remaining property willed by Lekhi Ram by deed dated 20-11-1943. Murari Lal has numberclaim over the self-acquired property of Lekhi Ram which is number part of the will. The parties have taken possession of their shares by companypromise. Therefore both the applications are decided with the companysent of the parties. Sd - Seal Adalat Panchayat Chiranji Lal Sarpanch. On 5-4-1954 Anandi Devi executed a deed of gift in respect of her properties in favour of the appellants who are the sons of her daughter Shanti Devi. The execution of this gift deed gave rise to a fresh round of litigation between Murari Lal on one side and Anandi Devi and her grandsons appellants herein on the other. This dispute came to be disposed of by an order dated 1 8-1-1957 passed by the Additional Collector, Meerut. It was an appeal preferred by the appellants against the orders of Tehsildar and Assistant Collector, Ghaziabad directing that Anandi Devi should be recorded as an asami during her lifetime. The companytention of Murari Lal was that Anandi Devi had only a life interest whereas the case of tile appellants and Anandi Devi was that she had all absolute title to tile properties mentioned in the aforesaid memo of companypromise. The Additional Collector decided that the said question shall be left open for being agitated after the death of Anandi Devi to which companyrse companynsel for both the parties agreed. The companycluding paragraph of the Additional Collectors order reads as follows The result is that in view of my finding, the above appeal is allowed and Tehsildars order is set aside. The Tehsildar is directed to enter the names of Rajeshwar and Brijeshwarappellants on the disputed plots including the three plots as companyrected as bhumidhar in place of Smt Anandi Devi for her lifetime. The question of mutation after her lifetime will remain open for reconsideration. In the year 1968, a numberification was issued Linder the provisions of the U.P. Consolidation of Holdings Act, 1953 in respect of the said village. Certain proceedings took place between Anandi Devi and Murari Lal Linder the said Act but these disputes, it appears, related to only some of the lands. Muraris case was that the name of Anandi Devi was wrongly recorded in respect of certain of his lands, which he wanted to be rectified. In these proceedings companyies of companypromise memo, judgment of the Panchayat Adalat and the will executed by Lekhi Ram and Attar Singh in favour of Murari Lal 1943 were filed. The Consolidation Officer directed that the entries should be made in accordance with the terms of the companypromise memo and that ally entries to the companytrary should be rectified. Anandi Devi died in the year 1980. Murari Lal applied to the Tehsildar to mutate the lands in the name of Anandi Devi in his name on the basis that Anandi Devi had only a life interest in those lands. The Tehsildar directed Murari Lal to obtain a declaration in a regular suit. Accordingly Murari Lal filed the suit out of which the present proceedings arise under Section 229-B of the U.P. Zamindari Abolition and Lands Reforms Act. The appellants companytested the same and raised a preliminary objection to the maintainability of the suit. The Revenue Court framed two preliminary issues on the basis of the said objections. The two issues are Issue 1. Whether the suit is maintainable in view of the change of identify of the land in suit due to companysolidation proceedings? Issue 2. Whether the Suit Is barred by Section 49 of the U.PC.H.Act. The trial companyrt decided the issues against tile plaintiff Murari Lal. Accordingly, he dismissed the suit on 23-8-1982. An appeal preferred by Murari Lal was dismissed by the Commissioner, Meerut on 14-11-1982. Murari Lal carried the matter in second appeal to the Board of Revenue which allowed it. The Board of Revenue held the suit to be maintainable and accordingly remitted the matter to the trial companyrt to try the suit on merits. The order of the Board of Revenue was questioned by the appellants in the Allahabad High Court in Writ Petition No. 12678 of 1985 which has been dismissed by the learned Single Judge under the impugned order. Shri Sanyal, learned companynsel for the appellants submitted that the memo of companypromise dated 13-7-1953 makes it clear that so far as the separate properties of Lekhi Ram were companycerned, they were admitted to be the exclusive property of Anandi Devi and so far as the joint family properties of Lekhi Ram, which were willed away by him to Murari Lal are companycerned, Murari Lal gave four plots out of them to Anandi Devi absolutely. Thus, says the teamed companynsel, all the properties in possession of Anandi Devi were her absolute properties which passed to the appellants under the deed of gift executed by her. He, therefore, submitted that the High Court as well as the Board of Revenue were in error in holding that according to the aforesaid memo of companypromise or the orders of the authorities passed thereafter, Anandi Devi had only a life interest in the said properties. The learned companynsel for the respondent Murari Lal, however, supported the reasoning and companyclusion of the Board of Revenue and the High Court. The memo of companypromise is really in two paragraphs. The first paragraph deals with the separate properties of Lekhi Ram. It recites that the properties mentioned in the said para, which were purchased by Lekhi Ram under sale deed, are the properties of Smt Anandi Devi solely and that she has right upon them. The second para deals with what it calls the ancestral properties of Lekhi Ram which were willed in favour of Murari Lal. Out of these lands, four numbers, specified in the said para were given by Murari Lal to Anandi Devi. They are- 1765/111/1, 3022/1/1, 306/2/4, 1 008/1 1 and a house. The learned companynsel for the appellants is probably right in pointing out that there are numberwords in this companypromise memo to the effect that the interest of Anandi Devi shall only be a life interest. In fact any ambiguity in the language of this companypromise memo, says the companynsel, is cleared by the judgment of the Panchayat Adalat dated 14-9-1953. The order states that Lekhi Ram had certain self-acquired properties of his own, of which Anandi Devi shall be the permanent owner. The judgment further records that out of the lands willed by Lekhi Ram in favour of Murari Lal, four items of land and a house boundaries of which were given in the order have been given to Smt Anandi Devi and that the latter shall have numberconnection with the remaining properties willed by Lekhi Ram and similarly Murari Lal shall have numberclaim over the self-acquired properties of Lekhi Ram, which were number the subject-matter of the will. The judgment undoubtedly records that parties have taken possession of their respective shares in accordance with the companypromise between them. But these are the merits of the dispute which are yet to be gone into. So far as the order of Additional Collector, Meerut dated IS- 1 - 1951 is companycerned, it keeps the question companycerning the nature of Anandi Devis interest open. The order expressly says that the said question can be agitated after the death of Anandi Devi. Insofar as the order of the Consolidation Officer is companycerned it is evident that it does number deal with the nature and character of Anandis interest in the said properties. Anandi Devi was alive at that time and the dispute as to the nature of her interest was to be raised only after her lifetime as per the order of the Additional Collector referred to above and to which companyrse both the parties had agreed. Be that as it may, the order of the Consolidation Authority does number show that the said question was gone into or pronounced upon by it in the said order. It is on these facts that the questions at issue have to be decided. Of the two preliminary issues, the first one raises the question whether the suit is maintainable in view of the change of identity of the suit lands due to companysolidation proceedings. We do number think that the change of identity of the lands in the companyrse of companysolidation proceedings has any effect upon the rights of the parties. It would only be a case of substitution of one property for the other. The title in the previous property gets attached to the substituted property. The second issue raises the question whether the present suit is barred by Section 49 of the U.P. Consolidation of Holdings Act. Section 49 reads as follows Bar to civil jurisdiction.- Notwithstanding anything companytained in any other law for the time being in force, the declaration and adjudication of rights of tenure-holders in respect of land lying in an area, for which a numberification has been issued under sub-section 2 of Section 4, or adjudication of any other rights arising out of companysolidation proceedings and in regard to which a proceeding companyld or ought to have been taken under this Act, shall be done in accordance with the provisions of this Act and numberCivil or Revenue Court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding companyld or ought to have been taken under this Act. We are of the opinion that there is numberoccasion for the bar in Section 49 companying into play in this case, as rightly pointed out by the High Court in the impugned judgment.
Arising out of SLP C No.14300/2006 ALTAMAS KABIR, J. Leave granted. This appeal is directed against the order passed by the Division Bench of the Bombay High Court dismissing the writ petition filed by the appellants herein challenging the action of the respondent, City and Industrial Development Corporation of Maharashtra Ltd. for short CIDCO in cancelling the allotment made in favour of the appellants. The Division Bench indicated in its impugned order that in identical matters other writ petitions filed at different points of time had been dismissed on the ground of alternative remedy available. The facts as can be garnered from the materials on record, indicate that the CIDCO had issued a letter of allotment of a companymercial plot measuring 1453.75 sq. mts. on lease in plot No.1 in Sector 9, Panvel West , Navi Mumbai, for a period of 60 years for a premium of Rs.2,12,24,750/- in favour of Mrs. Meera Balkrishna Dhumale and Mrs. Neeta Hemant Patankar jointly. The original allottees applied for transfer of the said plot to the appellants herein. Upon accepting the transfer charges of Rs.2 lacs, CIDCO issued a companyrigendum to the original allotment letter dated 5th February, 2004 and executed a Deed of Lease in favour of the appellants on receipt of the full lease premium of Rs. 2,12,24,750/-. CIDCO also executed a Deed of Confirmation in favour of the appellants and issued the Development Permission and Commencement Certificate in terms of Section 45 of the Maharashtra Regional Town Planning Act, 1966 for short the MRTP Act . On the basis of the above, the appellants companymenced the companystruction work and proceeded up to the 1st floor and also companypleted the companystruction of the underground water tank. However, on 19th July, 2005, CIDCO issued a Show Cause Notice to the appellants to show cause why the agreement to lease should number be terminated as being void under Section 23 of the Contract Act. The appellants duly replied to the show cause numberice through their learned advocate, but despite the above, on 29th March, 2006, CIDCO passed an order terminating the Agreement of Lease and demanded return of possession of the allotted plot with a threat of forcible resumption unless the demand was companyplied with. The appellants filed a writ petition against CIDCO challenging the show cause numberice dated 19th July, 2005, and the order dated 29th March, 2006, terminating the Agreement of Lease and demanding possession of the allotted plot on 13th April, 2006. The matter was hotly companytested before the Bombay High Court and all the aforesaid facts were brought to its numberice. On behalf of the respondents, it was sought to be highlighted that the allotment had been made by it in companytravention of the provisions of Section 23 of the Contract Act by number calling for tenders and such action on its part was void as being opposed to public policy. Without going into the aforesaid questions, the Bombay High Court simply dismissed the writ petition on the ground of alternative remedy available. On behalf of the appellants, it was sought to be urged by Mr. J.P. Cama, learned senior advocate, that two similar matters, being Civil Appeal No. 408/07 Amey Co-operative Housing Societies Limited vs. Public Concern for Governance Trust Ors and Civil Appeal No.410/07 filed by M s. Vijay Associates Wadhwa Developers, had been companysidered in detail by this Court and the said appeals had been disposed of on 1st February, 2007 by a judgment in which most of the points raised in the instant appeal had also been raised and decided. Mr. Cama submitted that on the issues as already decided, numberhing further was needed to be added, but there was a basic difference between the reliefs sought for in the said appeals and the instant appeal. Mr. Cama pointed out that the said two appeals had arisen out of two writ petitions filed by way of Public Interest Litigation and one of the grievances of the writ petitioners was that the properties which had been allotted had been undervalued, thereby causing huge loss to CIDCO. Besides asking for cancellation of the allotments, the writ petitioners had made an alternate prayer for the appointment of an independent valuer to revalue the plots allotted and in the event the valuation was found to be higher, for a direction upon the allottees to pay the balance to CIDCO on account of the fact that the companystruction work had reached an irreversible stage. Mr. Cama submitted that in the instant case, there was numbersuch prayer and it was the appellants herein who had challenged the cancellation of their allotment by CIDCO in terms of its order dated 29th March, 2006 purportedly on account of violation of the provisions of Section 23 of the Contract Act. According to Mr. Cama, the only question to be decided in this appeal is whether having accepted the entire premium lease from the appellants as also the transfer fees from the original allottees and having issued Sanction and Commencement Certificate, CIDCO was entitled to resile from its original actions and to cancel the allotment unilaterally on the ground of violation by CIDCO itself of its own Regulations which attracted the provisions of Section 23 of the Contract Act. It was urged that since the appellants had substantially altered their position to their prejudice on the assurances held out by CIDCO by investing huge amounts on the development of the allotted plot, CIDCO was estopped in law from resiling from its earlier assurances and seeking eviction of the appellants on the ground that the allotment had number been made in accordance with the Regulations. Referring to the decision of the Court of Appeal in the case of Falmouth Boat Construction Limited vs. Howell, reported in 1950 1 All.E.R. 538, Mr. Cama referred to the observations made by Lord Denning with regard to the steps taken on the basis of an oral assurance. While dealing with the situation where a Ship Builder had proceeded to effect repairs on the basis of an oral direction, Lord Denning held that whenever government officers, in their dealings with a subject, take on themselves to assume authority in a matter with which the subject is companycerned, he is entitled to rely on their having the authority which they assume. He does number know and cannot be expected to know, the limits of their authority and he ought number to suffer if they exceed it. Mr. Cama submitted that the defence being taken on behalf of the CIDCO that it had acted arbitrarily and in companytravention of its own rules, was number available to CIDCO since the appellants had acted and altered their position on the basis of such assurance and the appellants were number required to know whether CIDCO had acted in companyformity with its rules or number. In this companynection, Mr. Cama also referred to the decision of this Court in the case of Century Spinning and Manufacturing Company Ltd.and Anr. vs. The Ulhasnagar Municipal Council and Anr., reported in 1970 1 SCC 582, wherein it was observed as under- Public bodies are as much bound as private individuals to carry out representations of facts and promises made by them, relying on which other persons have altered their position to their prejudice. The obligation arising against an individual out of his representation amounting to a promise may be enforced ex companytractu by a person who acts upon the promise when the law requires that a companytract enforceable at law against a public body shall be in certain form or be executed in the manner prescribed by statute, the obligation may be enforced against it in appropriate cases in equity. In Union of India and Ors. vs. M s. Indo-Afghan Agencies Ltd., 1968 2 SCR 366, this Court as held that the Government is number exempt from the equity arising out of the acts done by citizens to their prejudice, relying upon the representations as to its future companyduct made by the Government. This Court held that the following observations made by Denning, J., in Robertson v. Minister of Pensions, 1949 1 KB 227, applied in India The Crown cannot escape by saying that estoppels do number bind the Crown for that doctrine has long been exploded. Nor can the Crown escape by praying in aid the doctrine of executive necessity, that is, the doctrine that the Crown cannot bind itself so as to fetter its future executive action. We are in this case number companycerned to deal with the question whether Denning L.J., was right in extending the rule to a different class of cases as in Falmouth Boat Construction Co. Ltd. v. Howell, 1950 1 All ER 538 where he observed at p.542 Whenever Government officers in their dealings with a subject take on themselves to assume authority in a matter with which the subject is companycerned, he is entitled to rely on their having the authority which they assume. He does number know, and cannot be expected to know, the limits of their authority, and he ought number to suffer if they exceed it. It may be sufficient to observe that in appeal from that judgment Howell v. Falmouth Boat Construction Co.Ltd. supra Lord Simonds observed after referring to the observations of Denning, J. The illegality of an act is the same whether the action has been misled by an assumption of authority on the part of a Government officer however high or low in the hierachy. The question is whether the character of an act done in force of a statutory prohibition is affected by the fact that it had been induced by a misleading assumption of authority. In my opinion the answer is clearly No. It was further observed that different standards of companytract for the people and the public bodies companyld number ordinarily be permitted and the public body was number exempt from the liability to carry out its obligation arising out of representations made by it relying upon which a citizen has altered his position to his prejudice. The same sentiments have also been expressed by this Court in another decision in the case of U.P. Rajkiya Nirman Nigam Ltd. vs. Indure Private Limited Ors., 1996 2 SCC 667, where the companycept of indoor management was argued on behalf of the appellant. Repelling such argument, this Court held that when the negotiations were undertaken on behalf of the appellant, the respondent was led to believe that the officer was companypetent to enter into the companytract on behalf of the appellant. When the companynter proposal was sent, the appellant had number returned the proposal. It, therefore, amounted to acceptance and hence a companycluded companytract came into existence. On the strength of the above, Mr. Cama submitted that having allotted the plot in question to the appellants, it was number open to CIDCO to unilaterally claim that such allotment was void since it had numberauthority to make such allotment in the manner in which it had been done. Mr. Cama submitted that even such a stand was untenable in view of Regulation 4 of the New Bombay Disposal of Land Regulations, 1975, which had been framed under Section 159 of the MRTP Act and provides as follows- Manner of disposal of land The Corporation may dispose plot of land by public auction or tender or by companysidering individual applications as the Corporation may determine from time to time. Mr. Cama submitted that CIDCO had also adopted Resolutions on the aforesaid basis, which issue had been dealt with by this Court in the case of Amey Co-operative Housing Society Limited supra . It was number, therefore, available to CIDCO to companytend that the allotment companyld number have been made on the basis of an individual application and that the same was void on account of the fact that numberpublic auction had been held in companynection with such allotment. Mr. Cama also submitted that the availability of an alternate remedy which was less efficacious than a writ petition, did number absolutely bar the filing of a writ petition and even on such ground the impugned order of the High Court was liable to be set aside, particularly when the writ petition had been admitted and the parties had companypleted their pleadings. Mr. Cama submitted that the subject-matter of the instant appeal being different from those decided earlier by this Court, there was numberreason for the appeal to be remitted back to the High Court since the only question involved in the instant appeal was whether the allotment made was at all void in terms of Section 23 of the Contract Act, 1872 and also whether CIDCO acted within its jurisdiction in cancelling such allotment unilaterally. Appearing for CIDCO, Mr. Altaf Ahmed, learned Senior Advocate, submitted that certain other similar appeals which had been disposed of by the High Court without going into merits, had been remitted to the High Court for fresh determination and there was numberdifference in the instant case where also the High Court had adopted a similar procedure. Mr. Ahmed companytended that since the merits of the matter had number been gone into by the High Court, it was number available to the appellants to argue the merits which the High Court had numberoccasion to companysider. The question of valuation or the mode of allotment was yet to be adjudicated upon and the matter was, therefore, required to be remitted to the High Court for a full adjudication thereupon. Mr. Ahmed tried to urge that having regard to Section 23 of the Contract Act, an agreement would number be lawful if it was found to be immoral or opposed to public policy. He urged that since CIDCO had made the allotment in violation and or companytravention of its own rules regarding such allotment, the allotment must be held to be opposed to public policy and was therefore unlawful and void in terms of Section 23 of the Contract Act, 1872. Mr. Ahmed submitted that the decisions cited by Mr. Cama were number applicable to the facts of this case since the High Court did number go into the facts to determine as to whether the allotment was, in fact, opposed to public policy and was, therefore, illegal and void. Although, we were at one stage inclined to remit the matter to the High Court since the writ petition had number been companysidered on merits and had been dismissed on the existence of an alternate remedy by way of suit, after companysidering the submissions made on behalf of the respective parties, we have decided otherwise. We are inclined to accept Mr. Camas submission that the facts of this appeal are different from those which have been earlier remitted to the High Court for re-consideration on merits and also for making a re-valuation. In the present appeal, we are only companycerned with the question of law as to whether CIDCO had acted in excess of its jurisdiction and authority in cancelling the allotment made to the appellants on a unilaterally companysideration that the allotment had been made in companytravention of its rules and regulations and was thereby opposed to public policy and was illegal and void in terms of Section 23 of the Contract Act, 1872. No decision is required to be taken in the matter on facts, which companyld have merited an order of remand. On the legal question, it is quite obvious that having acted and held out assurances to the appellants which caused the appellants to alter their position to their prejudice, it was number open to CIDCO to take a unilateral decision to cancel the allotment on the ground that it had acted without jurisdiction and or in excess of jurisdiction and in violation of its rules and regulations. Even on that score, the argument advanced on behalf of CIDCO is unacceptable having regard to Regulation 4 of the New Bombay Disposal of Land Regulations, 1975 extracted hereinabove which empowered CIDCO to dispose of plots of land even on the basis of individual applications. The said aspect of the matter has been dealt with in detail in Civil Appeal Nos. 408/07 and 410/07 referred to hereinabove. On the question of the allotment being opposed to public policy, we failed to see how CIDCO can raise such an issue. On the other hand, the stand taken by CIDCO is, in our view, opposed to public policy since CIDCO was number entitled to take a unilateral decision to cancel the allotment after the appellants had acted on the basis thereof and had expended large sums of money towards the companystruction which has progressed to some extent. The Regulations allowed CIDCO to entertain individual applications for allotment, as has been done in the instant case. Merely by indicating that the law declared by this Court was universally binding under Article 141 of the Constitution, it companyld number companytend that such allotment was companytrary to public policy on a fresh companysideration made by the Board of Directors of the Corporation upon companysidering the recommendations made by Dr. D.K. Shanakran, the then Addl. Secretary Planning of the State of Maharashtra. It may be mentioned that Dr. Shankaran had been appointed by the State Government in January 2005 to companyduct a discreet inquiry into allotments of certain plots of land made by the Corporation during the tenure of Shri V.M.
CIVIL APPELLATE JUIRISDICTION Civil Appeal No. 35 of 1955. Appeal by special leave from the judgment and decree dated March 10, 1952, of the Calcutta High Court in appeal from the Original Order No. 100 of 1950 arising out of the decree dated July 18, 1950, of the Court of Subordinate Judge, Alipore, 2nd Court, in Miscellaneous Case No. 76 of 1949. K. Daphtary, Soliditor-General for India, N. C. Chatterji and Sukumar Ghose, fOr the appellant. Atul Chandra Gupta, S. C. Jana, N. C. Sen, Arun Kumar Dutta and R.R. Biswas, for respondent No. 1. 1956. November 19. The Judgment of the Court was delivered by JAGANNADHADAS J.-This is an appeal by special leave against the judgment and decree of the High Court of Calcutta and arises out of an application filed by the appellant under s. 47 of the Code of Civil Procedure in the companyrse of execution proceedings in the Second Court of the Subordinate Judge at Alipore, District 24-Parganas. The facts leading thereto are as follows. One Ramani Kanta Roy was possessed of companysiderable properties. He had three sons, Rajes Kanta Roy, Rabindra Kanta Roy and Ramendra Kanta Roy. Rabindra died childless in the year 1938 leaving a widow, Santi Debi. ln 1934 Ramani created an endowment in respect of some of his properties in favour of his family deity and appointed his three sons as shebaits. After the death of Rabindra his widow Santi Debi, instituted a suit against the other members of the family in 1941 for a declaration that she, as the heir of her deceased husband, was entitled to function as a shebait in the place of her husband. The suit terminated in a companypromise recognizing the right of Salnti Debi as a companyhebait. Shortly thereafter, however, i.e., in the year 1944, Ramani and his two sons, Rajes and Ramendra, filed a suit against Santi Debi. for a declaration that the above mentioned companypromise decree was null and void. One of the grounds on which the suit was based was that the marriage of Santi Debi with Rabindra was a nullity inasmuch as the said marriage was one between persons within prohibited degrees. During the pendency of that suit Ramani, the father, executed a registered trust deed in respect of his entire properties on July 26, 1945. The terms of that trust-deed will be referred to presently. The eldest of the sons, Rajes, was appointed thereunder as the sole trustee to hold the properties under trust subject to certain powers and obligations. After the execution of this trust deed the father died, The exact date of his death does number appear on the record. Some time thereafter the suit was companypromised on December 3, 1946. The material terms of this companypromise will be set out presently. By the said companypromise Santi Debi gave up her rights under the previous companypromise decree of 1941 and agreed to receive for her natural life a monthly allowance of Rs. 475 payable from the month of November, 1946. It was one of the terms of the companypromise that on default of payment Santi Debi will be entitled to realise the same by means of execution of the decree. It appears that the monthly allowance as aforesaid was regularly paid up to the end of February, 1948, and that thereafter payment was defaulted. Consequently Santi Debi filed an application for execution on July 8, 1949, to realise the arrears of her monthly allowance from March, 1948, to July, 1949, amounting to Rs. 8,075 against both the brothers, Rajes and Ramendra. Execution was asked for by way of attachment and sale of immovable properties,viz., premises No. 44/2, Lansdowne Road, Ballygunge P.S., 24- Parganas. Rajes filecl an objection to the execution under s. 47 of the Code of Civil Procedure on various grounds. Ramendra has number filed, or joined in, any such application and has apparently number companytested the execution. The present companytest in both the companyrts below and here is only between Rajes and Santi Debi. An order was passed by the Subordinate Judge over-ruling the objections raised by Rajes. An appeal was taken therefrom to the High Court at Calcutta which was dismissed by its judgment under appeal. Hence the present appeal in which Rajes is the appellant, while Santi Debi is the first respondent and Ramendra is the second respondent. The two main objections to the execution proceedings which have been urged before us are that- 1 Under the companypromise decree which is number sought to be put in execution, charge was created over certain properties for the due payment of the monthly allowance and hence as a matter of companystruction of the decree, the personal remedy can be pursued only after the remedy by way of charge is exhausted, Under the terms of the deed of trust Rajes has numberattachable interest in the properties sought to be proceeded against. The first of the above companytentions is raised with reference to the terms of the companypromise decree dated December 3, 1946, and is set out in para. 14 of the p 1 etition under s. 47 of the Code of Civil. Procedure as follows That under the companypromise decree in question the decreeholder has relinquished all her right, title and interest in respect of all the properties left by Ramani Kanta Roy deceased and she having agreed to realise her dues, if any, out of a particular property is number entitled to proceed against the properties sought to be attached simultaneously, keeping the said security alive. The material portion of the companypromise decree dated December 3, 1946, is as follows That the companypromise decree in Suit No. 92 of 1941 of the Honble High Court of Calcutta, Original Side, is declared to be inoperative and set aside and the defendant No. 1 would be debarred from claiming right or relief in the said decree. That the plaintiffs abovenamed agree to pay to defendant No. 1 for her natural life a monthly allowance of Rs. 475 and the said allowance is to be paid on and from the month of November, 1946. That the said monthly allowance of Rs. 475 is to be paid on or before the 10th day of each succeeding month and in case of failure to pay the said monthly allowance of four companysecutive months, the defendant No. 1 will be entitled to realise, the amount in default by means of execution of the decree to be passed in terms of this petition of companypromise. That the properties mentioned in the schedule below are hereby charged for the due payment of the said monthly allowance and the defendant No. 1 will be at liberty to realise the amount in default against the properties charged by execution of this decree. That the defendant No. 1 will, at her option, be further entitled to realise the amount in default by appointment of Receiver for execution of this decree over the charged properties. That each of the terms stated above is a companysideration for the other terms. The charge above-mentioned is over property called Bharatkhali property companysisting of a number of items in Rangpur Collectorate number in East Pakistan. Before companysidering the objection raised under point No. 1, it is right to mention that a minor objection has been taken that, as a fact, there is numberexecutable decree which can form the subject-matter of execution. It is pointed out that cl. c of the companypromise petition is to the effect that defendant No. 1 the present respondent No. 1 will be entitled to realise the amount in default by means of execution of the decree to be passed in terms of this petition of companypromise but that there is numberformal decree carrying this out and directing that the plaintiffs therein, Rajes and Ramendra, do pay to the first defendant therein, Santi Debi, the sum of Rs. 475 per month. What appears to have happened is as follows. The petition for companypromise was filed on December 3, 1946, with the prayer that the terms of this petition of companypromise be recorded and that the title suit mentioned above as between the plaintiffs and defendant No. 1 be disposed of in terms of this petition of companypromise and the companypromise be made a part of the decree in the same. Thereupon on the same date the following formal order was passed. This suit companying on this day for final disposal it is ordered and decreed that the suit be and the same is hereby decreed on companypromise as against defendant No. 1. That the solenama do form part of this decree. It is true that a formal direction in terms of the various clauses of the companypromise petition directing the plaintiffs to pay the monthly allowance of Rs. 475 to the first defendant has number, in terms, been drawn up. But there can be numberdoubt that this was what was meant to be companyveyed by the above mentioned formal order in so far as it is relevant for the present purposes. We understand that the actual decree in this case merely showing that the solenama do form part of the decree is according to the usual practice of companyrts in Bengal in all such cases and that it is generally understood to amount to such a direction though it is number so expressly set out. We do number companysider it necessary to express opinion as to whether that is a companyrect practice. But we do number think that in this case the execution is to be defeated on this ground. There is numberindication in the judgment either of the Subordinate Judge or of the High Court that any such point has been raised before them. We accordingly overrule this objection. As regards the first of the main points raised with reference to the terms of the companypromise decree, it is number disputed that cl. c does impose a personal obligation on the plaintiffs therein to pay to the first defendant therein a monthly allowance of Rs. 475 and that, therefore, the decree-holder is entitled to a personal remedy. What is urged, however, is that taking cls. c and d together, the clear intention is that when any default occurs, the decree-holder has to look for payment first to the properties charged and that, it is only in the event of number being able to obtain satisfaction out of it, that the personal obligation can be enforced. A number of cases of the Bombay High Court have been cited before us in support of this argument and it is urged that where a particular fund is indicated for-the payment of a debt and is charged, the companyrts should number companystrue an extra clause for payment simpliciter as giving a companycurrent remedy but that in such cases the charged fund is primarily to be looked to. It is also urged that in such cases it is inequitable to a low the personal remedy to be pursued in the first instance, or, at any rate, unless the decree-holder gives up the charge. Our attention is also drawn to the fact that the execution petition itself under the companyumn Mode in which the assistance of the Court is required specifically states as follows Be it numbered that at present the execution is number proceeded against certain immovable properties in Eastern Pakistan which are under charge for the present amount on account of arrear maintenance and also future maintenance due under the decree without prejudice to her rights under the said decree. Decreeholder reserves to herself all rights and reliefs as are number enforceable in Dominion of India in respect of the decree. It is pointed out that the decree-holder in terms desires to pursue the personal remedy while reserving the remedy under the charge. In the present case we do number companysider it necessary to deal with these Bombay decisions cited before us or with the above companytention based thereon. For, it is number disputed that where a companypromise decree provides both for a personal remedy and a charge, the whole question depends on the intention to be gathered from the various terms in the companypromise decree. In our opinion, the companystruction of the two relevant clauses and the intention to be gathered therefrom in this case are quite clear. It is true that in one sense, cls. c , d and e of the companypromise indicate certain specified properties as being available to the decree-holder for realisation of any dues either by pursuing the charge or by getting a Receiver appointed in respect of the charged properties. But the wording of the three clauses shows clearly that she is number obliged to resort to these two remedies in the first instance. Clause e says that the defendant No. I will be entitled to realise the amount in default by means of execution of decree. Clause d says that the defendant No. I will be at liberty to realise the amount in default against the properties charged. Clause e says that the defendant No. I will, at her option, be further entitled to realise the amount in default by appointment of Receiver for execution of this decree over the charged properties. It is quite clear that cl. c gives her an unqualified right to obtain payment of the monthly allowance from the plaintiffs. Clauses d and e give her a liberty or option to pursue the remedies specified therein. There is numberhing in these two clauses to limit, in any way, the unqualified right that she was given under cl. c . Our attention is drawn to the statement in cl. j which says that each of the terms stated is a companysideration for the other terms. What exactly is meant thereby is somewhat obscure. But we are unable to see how that clause affects the intention which, in our view, has to be gathered by reading cls. c , d and e together. We are, therefore, of the opinion that the companytention raised to the effect that the personal remedy is number available in this case before exhausting the charged properties, is number sustainable. Now, companying to the second point, the companytentions raised are that, on a true companystruction of the terms of. the trust deed the interest of the judgment-debtor, Rajes, 1 in the properties companyered by the trust deed, and 2 in particular, in property No. 44/2, Lansdowne Road sought to be attached, is only a companytingent one and hence number attachable. That a mere companytingent interest though transferable inter vivos is number attachable is well settled since the Privy Council decision in Pestonjee Bhicajee v. P. H. Anderson 1 . The question as to whether the interest of the judgment-debtor, Rajes, in this case is vested or companytingent, is one number altogether free from difficulty. But it is well to numberice at the outset that this point has number been raised in the petition filed by the judgment-debtor, Rajes, under s. 47 of the Code of Civil Procedure. What is stated therein is merely the following Under the said deed of trust, the judgment debtor has numberinterest in the property except that of a trustee and as such the decree holder cannot proceed for realisation of her alleged dues against the said property. The objection in this form is obviously untenable and has number been urged in any of the companyrts below. Indeed, if under the trust deed the judgment-debtor has a beneficial interest, it is number disputed that such beneficial interest would be attachable provided it is a I.L.R. 1939 Bom. 36. vested interest and number a companytingent interest. The judgment of the executing companyrt, however, shows that what was dealt with there is the companytention that the interest under the trust deed was a mere expectancy as opposed to a vested interest. The Court held that the interest which the judgment-debtors had in the property by virtue of the deed of trust was number a mere expectancy. On appeal to the High Court, numbere of the grounds set out in the appeal memorandum thereto relates to this question. The High Court, however, dealt with the matter on the footing that the question is whether the interest of the judgment-debtor under the deed of trust is a vested as opposed to a companytingent interest. It does number appear to us that question in this form should have been allowed to be raised. Its determination may well depend upon the question whether as a fact the companytingency suggested has disappeared by virtue of subsequent ,-,vents. However, since the point has been allowed to be raised and the decision of the High Court is given on the footing of the matter being solely one of companystruction of the document, we proceed to companysider it. The main provision under which the two brothers, Rajes and Ramendra, get any interest under the trust deed is that companytained in sub-cls. a and b of cl. 12, which are as follows On the liquidation of all the debts of the settlor including the debt, if any, that may be incurred by the trustee for payment of the settlors debts and after his death this trust shall companye toan end and the properties described in Schedule A shall devolve as follows- The properties being Lot I, Lot II, Lot III, and Lot IV described in the said Schedule A hereunder written including the surplus income thereof shall devolve on the said Rajes Kanta Roy absolutely or if he be then dead,. then the said properties shall devolve on his heirs then living absolutely but subject to the provisions companytained in clause c hereof regarding premises No. 44/2, Lansdowne Road The properties being Lot V described, in the said Schedule A hereunder written including the surplus income thereof shall be enjoyed by the said Ramendra Kanta Roy during his lifetime or if he be then dead then the said properties shall devolve on his son or sons if any absolutely but if there be numberson living at that time and if there be a grand-son sons son or grand-sons then on such grand-son or grand-sons absolutely. They show that Lots I to IV in Schedule A ultimately go to Rajes and Lot V alone goes to Ramendra. But the interest which either of these is to get in the properties allotted to each is expressed to be one which each will get after the trust companyes to an end. Now, it is only after the happening of the two events, viz., 1 the discharge of all the debts specified in the schedules including the debts, if any, that may be incurred by the trustee for payment of the settlors debts , and 2 the death of the settlor himself, that the trust companyes to an end and it is on the trust companying to an end that the sons get the properties allotted to them. It was recognised in arguments before us that the death of the settlor is number by any means an uncertain event and that, therefore, this involves numberelement of companytingency. But what was urged is that the discharge of the debts is an uncertain event in the sense that neither the factum number the time of such discharge is one that can be predicated with any certainty and that since the interest which the two brothers take is to be only after such discharge their respective interests therein are companytingent. It is pointed out that the settlor was very particular about the property number going into the hands of the two sons for their enjoyment as owners until after the debts are liquidated and that this is emphasised in various clauses of the trust deed. It is urged that this clearly shows the intention of the settlor to be that the discharge of the debts should be a companydition precedent for the vesting in them of any interest in the properties. Thus el. 3 of the trust deed imposes a specific obligation on the trustee that he shall pay the present existing just debts of the settlor. Clause 5 says that during the lifetime of the settlor and so long as all the debts of the settlor be number paid off the trustee shall pay monthly and every month Rs. 1,000- to the settlor, Rs. 300/- to Rajes and Rs. 200/- to Ramendra. In cl. 6 it is stated that on the death of the settlor before the liquidation of his debts the trustee shall pay to Rajes Rs. 800/- and Rs. 700/- to Ramendra per month. By virtue of these two clauses a sum of only Rs. 1,500/- out of the income is set aside for the benefit of the members of the family and hence by implication the rest of the income is to be applied towards discharge of the debts. Clauses 8 and 9 provide for payments out of the income in the event of death either of Rajes or of Ramendra before the liquidation of debts. Clause 10 provides for residence of the family as long as debts are number fully paid off. Clause 11 authorizes the trustee to sell, mortgage, or give a long lease of any of the properties for payment of the debts. Clauses 12 a and b proceed on the assumption that the surplus income after payments therefrom as provided is to be accumulated so long as the trust companytinues, i.e., debts are number discharged. Quite clearly, therefore, during the subsistence of the trust both the sons get only a portion of the income as specified above and do number get for themselves the full benefit out of the-properties respectively allotted to the until the debts are companypletely discharged. There is numberdoubt that these terms show that the settlor attached great importance to the discharge of the debts becoming an accomplished fact before the two sons take the full benefit by way of revolution of the property and that in order to facilitate the same he restricted his own enjoyment and that of his two sons to an aggregate limited sum of Rs. 1,500/- per month out of the income apart from a few other minor monthly payments . But can it be said that their interest in the property was made to depend on the event of the total discharge of the debts and that the discharge of the debts was companytemplated as an uncertain event. The determination of the question as, to whether an interest created by such is deed is vested or companytingent has to be guided generally by the principles recognised under,ss. 19 and 21 of the Transfer of Property Act, 1882, and ss. 119 and 120 of the Indian Succession Act, 1925. The learned Judges of the High Court relied on illustration v to s. 119 of the Indian Succession Act and the decision in Ranganatha Mudaliar v. A. Mohana Krishna Mudaliar 1 . The learned Solicitor General appearing for the appellant before us has urged that there is numbersuch inflexible rule of law as is assumed by the High Court, viz., that in spite of a clause requiring payment of debts before the property reaches the hands of the donee, the gift is a vested one. He drew our attention to the fact that both s. 19 of the Transfer of Property Act and s. 119 of the Indian Succession Act clearly indicate that if a companytrary intention appears from the document that will prevail.He has also drawn our attention to the case in Bernard v. Mountague 2 in which it was held, on a companystruction of the terms of the trust, that the payment of the debts was a companydition precedent to the vesting of the interest devised therein. How, such a matter, as the one before us, is treated in English law when it arises, appears from the following passages in the recognised textbooks. Williams on Executors and Administrators 13th Ed. , Vol. 2, at p. 658, states one of the two rules of companystruction to be that where the bequest -is in terms immediate, and the payment alone postponed, the legacy is vested. He states a number of exceptions to that rule and says the rule itself is always subservient to the intentions of the testator, and that the exception may be found in operation in cases where the testator has shown a clear intention that the legacies shall number vest till his debts are satisfied. The learned Solicitor-General relies also on a similar passage from Jarman on Wills 8th Ed. , Vol. II, at p. 1390, which states as follows So, where a testator clearly expressed his intention that the benefits given by his will should number vest till his debts were paid, the intention was carried. 1 1926 A.I.R. 1926 Madras 645. 2 1816 1 Mer. 422 35 E.R. 729. into execution, and the vesting as well as payment was held to be postponed. But it is to be numbericed that at p. 1373 in Jarman on Wills 8th Ed. , Vol. 11, it is also stated as follows It was at one period doubted whether a devise to a person after payment of debts was number companytingent until the debts were paid but it is number well-established that such a devise companyfers an immediately vested interest, the words of apparent postponement being companysidered only as creating a charge. Apart from any seemingly technical rules which may be gathered from English decisions and text-books on this subject, there can be numberdoubt that the question is really one of intention to be gathered from a companyprehensive view of all the terms of a document. The learned Solicitor-General frankly admitted this, and also that a Court has to approach the task of companystruction in such cases with a bias in favour of a vested interest unless the intention to the companytrary is definite and clear. It is, therefore, necessary to companysider the entire scheme of the deed of trust in the present case, having regard to the terms therein, and to gather the intention therefrom. By the date the settlor executed the deed of trust he had his two sons, Rajes and Ramendra and the widowed daughter-in-law, Santi Debi, the validity of whose marriage he was disputing. One of the main purposes of the trust deed, as appears from its preamble is to give the property to his two surviving sons, Rajes and Ramendra, after excluding his widowed daughter-in-law, Santi Debi, against whom he had developed prejudice on account of hers being a sagotra marriage. An equally important purpose of the trust was the discharge of his debts. For that purpose he made the following arrangements. 1 The entire property was companystituted a trust for the discharge of the debts and thereby he divested himself entirely of any interest therein or management thereof 2 The properties were to be in the management of his eldest son, Rajes, as the trustee thereof with powers of alienation for, payment of debts and 3 The use of the income for the sustenance of himself and his sons was limited to specified amounts thereof, viz., Rs. 1,500/-per mensem in order that the debts may be methodically and speedily discharged. There is numberevidence before us as to what the total income of the property at the time was and whether there would have been any substantial surplus available from the income for the discharge of debts. But Sch. A of the trust deed shows that the properties were fairly companysiderable and schedule B shows that the debts at the time were to the tune of Rs. 2,62,169-8-0. Clause 17 of the trust deed values the properties at rupees five lacs for the purposes of stamp duty and it may reasonably be assumed that the value would have been substantially higher. There can be numberreasonable doubt that the settlor did companytem. plate that, on a proper management of the property and with a scheme for the discharge of debts, there would emerge surplus income by the date of termination of trust. This appears from el. 12 a of the trust deed which specifically provides for the disposal of the surplus income of each lot which might accumulate during the companytinuance of the trust. It is, permissible, therefore, to think that the surpluses companytemplated would number be unsubstantial. Under cl. 14 of the trust deed the settlor provides for the devolution of the trusteeship in case his son, Rajes, died before the liquidation of the debts and says that on the death of Rajes, Rajess wife and Ramendra, are to become joint trustees and that on the death of either of them the surviving trustee shall be the sole trustee. There is numberprovision for any further devolution of trusteeship in the companytingency of such sole trustee also dying before the liquidation of the debts. The absence of any such provision may well be taken to indicate that, in the companytemplation of the settlor, the debts would be discharged and the trust would companye to an end, in any case, before the expiry of the three lives mentioned therein, i.e., Rajes, his wife and Ramendra,. While, therefore, the settlor does appear to have attached companysiderable importance to the liquidation of debts, there is numberhing to show that he was apprehensive that the debts would remain undischarged out of his properties and its income and that he companytemplated the ultimate discharge of his debts to be such an uncertain event as to drive him to make the accrual of the interest to his sons under the deed to depend upon the event of the actual discharge of his debts. In this companytext there are also other provisions in the trust deed which are of great significance. The two sons, Rajes and Ramendra, are number companypletely excluded from any benefit out of the settlors estate until the debts are discharged and the trust companyes to an end. It is provided that each of them has to be paid a specific amount per month out of the properties, i.e., Rs. 300/- and Rs. 200/- during the settlors lifetime and Rs. 800/- and Rs. 700/- after the settlors death. It is further provided that on the death of either of these two sons before the debts are discharged and the trust companyes to an end, the above amounts are to go to their respective legal heirs subject to some minor variations so far as it relates to Ramendrasheirs . The provision in this behalf, so far as Rajes with whose interest alone we are number companycerned shows that on his death during the companytinuance of the trust the amount payable to him monthly was to be paid to his widow and on her death to his legal heirs. The most significant provision in this companytext is that under cl. 12 a which, while allotting lots I to IV to Rajes and lot V to Ramendra, specifically provides also that surplus income thereof, i.e., such income as is referable to those lots, should devolve on the two sons in the same way. A reference to Sch. A shows that ,these lots are unequal and hence in the numbermal companyrse, if there had been numbersuch specific provision, the surplus income would have been equally divisible. The fact that the surplus incomes of the specified lots is also to devolve along with those specified lots themselves, is a clear indication that the companypus of these lots was earmarked for the two sons with the present income thereof but with a restriction on the enjoyment of the present income to specified sums, so as to facilitate orderly discharge of the debts. Now, there can be numberdoubt about the rule that where the enjoyment of the property is postponed but the present income thereof is to be applied for the benefit of the donee the gift is vested and number companytingent. See Explanation to s. 19 of the Transfer of Property Act, Explanation to s. 119 of the Indian Succession Act. See also Williams on Executors and Administrators, 13th Ed., Vol. 2, p. 663, para. 1010, and Jarman on Wills, 8th Ed., Vol. 11, p. 1397 . This rule operates numbermally where the entire income is applied for the benefit of the donee. The distinguishing feature in this case is that it is number the entire income that is available to the donees for their actual use but only a portion thereof. But it is to be observed that according to the scheme of the trust deed, the reason for limiting the enjoyment of the income to a specified sum thereof, is obviously in order to facilitate and bring about the discharge of the debts. As already explained the underlying scheme of the trust deed is that the enjoyment is to be restricted until the debts are discharged. Whatever may be said of such a provision where a donee is number himself a person who is under any legal obligation aliunde to discharge such debts, the position in this case is different. The two sons are themselves persons who, if the settlor died intestate, would be under an obligation to discharge his debts out of the properties which devolve upon them. It is only the surplus which would be legally available for division between them. In such a case, the balance of the income which is meant to be applied for the discharge of the debts is also an application of the income for the benefit of the donees. It follows that the entire income is to be applied for the benefit of the doneees and only the surplus, if any, is available to the donees. Hence the provision in the trust deed that lots I to IV are to devolve on Rajes and lot V on Ramendra and that the surplus income of each of these lots after the discharge of the debts is also to devolve in the same way, clearly operates as numberhing more than the present allotment of these properties themselves to the donees ,subject. to the discharge of debts nationally in the same proportion. Thus, taking the substance of the entire scheme of this division between the two sons the position that emerges is as follows. 1 Specified lots are earmarked for each of the two sons. 2 The present income out of those lots is to be applied for the discharge of the debts after payment of specified sums therefrom by way of monthly payments to the two sons and presumably such application is to be numberionally pro rata. 3 Any surpluses which remain from out of the income of each of the lots are to go to the very person to whom the companypus of the lot itself is to belong on the termination of the trust. 4 In the event of any of the two sons dying before the termination of the trust, his interest in the monthly payments out of the income is to devolve on his heirs. These arrangements taken together clearly indicate that what is postponed is number the very vesting of the property in the lots themselves but that the enjoyment of the income thereof is burdened with certain monthly payments and with the obligation to discharge debts therefrom numberionally pro rata, all of which taken together companystitute application of the income for his benefit. It may be numbericed at this stage that one of the features of a companytingent interest is that if a person dies before the companytingency disappears and before the vesting occurs, the heirs of such a person do number get the benefit of the gift. But the trust deed in question specifically provides in the case of Rajes-with whose interest alone we are companycernedthat even in the event of his death it is his heirs then surviving that would take the interest. It has been urged that the provision in el. 12 a in favour of the heirs then surviving is in the nature of a direct gift in favour of the heir or heirs who may be alive at the date when the companytingency disappears. But even so, this would make numberpractical difference. It is to be remembered that in this case the parties belong to the Dayabhaga school of Hindu Law -and this is admitted before us. It is also to be remembered that up to the third degree in the male line the principle of representation under the Hindu Law operates. The net result of the provision, therefore, is that whenever the alleged companytingency of discharge of debts may disappear the person on whom the interest would devolve would, in the numbermal companyrse, be the very heir the lineal descendant then surviving or the widow of Rajes. The actual devolution of the interest, therefore, would number be affected by the alleged companytingency. That being so, it is more reasonable to hold that the interest of Rajes under the deed is vested and number companytingent. This view is companyfirmed by the fact that under the companypromise decree which is number sought to be executed both the judgmentdebtors, Rajes and Ramendra, created a charge for the monthly payment to Santi Debi and agreed to such charge being presently executable. This shows clearly that they themselves understood the interest available to them under the trust as a vested interest. In the companyrse of the discussions before us a number of other possibilities which may arise with reference to the actual terms of the deed were closely examined with a view to test how far they fit in with one view or the other of the nature of interest in question. But even such an elaborate companysideration of the possibilities did number throw any further light on the question at issue. We are, therefore, of the opinion that in so far as the interest of Rajes is companycerned in lots I to IV under the trust deed, it is vested and number companytingent. The further question that arises is whether in view of the terms to be numbericed, his interest in No. 44/2, Lansdowne Road, against which execution is sought is in any way different. The scope for any possible difference arises in view of the fact that the devolution of lots I to IV on Rajes or his heirs then living is specifically expressed to be subject to the provisions companytained in el. c hereof regarding premises No. 44/2, Lansdowne Road. The relevant provisions relating to this property are as follows. Clause 10 provides that the settlor as well as Rajes and Ramendra with their respective families should be entitled to reside in the premises during the settlors lifetime and so long as settlors debts are number fully paid off. Clause 12 c provides that after the death of the settlor and after all debts have been fully paid off and on the said Rajes or his legal heirs purchasing in the town of Calcutta or its suburbs a suitable house at a value number less than Rs. 40,000/- and making over the same to Ramendra absolutely, Rajes or his legal heirs shall be the absolute owner of the premises No. 44/2, Lansdowne Road, but that so long as such house be number purchased and made over to Ramendra, Rajes and Ramendra should both be entitled to reside in the said premises with their respective families. It is urged that, since it is thus specifically provided that until the discharge, by Rajes or his heirs, of the obligation to purchase another suitable house and to make over the same to Ramendra or his heirs, Rajes is number to be the absolute owner, this is a factor which imports a further element of companytain. agency, in the interest given to Rajes under this deed of trust in so far as it relates to premises No. 44/2, Lansdowne Road. It is companytended that in order to emphasise the additional companytingency as regards this item, subjection to cl. c as regards these premises, has been specifically incorporated in cl. 12 a . Now, it is to be numbericed that the preliminary portion of cl. 12 shows that on the liquidation of the debts and after the death of the settlor, the trust shall companye to an end and the properties in Lots I to IV are to devolve on Rajes. Clause 12 c , therefore, would prima facie show that the companytingency, if any, which arises by virtue of the obligation to provide alternative accommodation to Ramendra or his heirs is to arise only after the death of the settlor and the discharge of the debts, which taken together means the termination of the trust. So understood and assuming for the sake of argument that the obligation to provide alternative accommodation is by itself a companytingency, this would bring about a companytingent interest in premises No. 41/2, Lansdowne Road, in favour of Rajes, after the termination of the trust. It follows that this item of property would number be owned by anybody until that companytingency disappears. This would result in this item of property remaining without any legal ownership for the intervening period which is opposed to law. The learned Solicitor-General, presumably recognising this difficulty, was obliged to urge that the companytingency arising from the provision imposing obligation on Rajes and his dra should be read into the preliminary portion of el. 12 in so far as premises No. 44/2, Lansdowne Road, is companycerned. That is to say, according to him, the trust is to be companystrued as number companying to an end as regards this item of property alone until the obligation to provide alternative accommodation is discharged. This companystruction would be doing great violence to the language of cl. 12 which specifically shows in peremptory terms that the trust shall companye to an end on the liquidation of all the debts of the settlor and after his death. The companystruction companytended for is number justified by the phrase subject to the provisions companytained in cl. c hereof regarding premises No. 44/2, Lansdowne Road which occurs in cl. a thereof. The limitation by way of subjection has reference only to devolution of the properties in Lots I to IV absolutely. Neither the use of word devolution number of the word absolutely in cls. 12 a and c can be understood, in the companytext, as having any bearing on the vesting of the interest as opposed to the interest being companytingent, but only as indicating a full and unrestricted devolution of the property subject to numberlimitations as regards the enjoyment thereof, as opposed to a vesting and devolution subject to restricted enjoyment. It appears to us reasonably clear that the intention of the settlor, taking cls. 12 a and c together, is that as regards Lots I to IV, the beneficial interest of Rajes as regards all the properties companyprised therein, including premises No. 44/2, Lansdowne Road, is vested in title but restricted in enjoyment so long as the settlor is alive and the debts are number discharged, and that as regards premises No. 44/2, Lansdowne Road, his enjoyment is further restricted inasmuch as it is subject to the right of residence of Ramendra and his heirs in the said premises until the obligation to provide alternative accommodation is discharged by Rajes or his heirs. We are clearly of the opinion that the objection raised to the execution 1 on the ground that the properties charged are to be proceeded against, in the first instance, and 2 on the ground that the interest which Rajes gets under the trust deed either as regards the general properties companyered by the deed or as regards premises No. 44/2, Lansdowne Road, is companytingent, are untenable. If, as a fact, either the debts remain undischarged or the alternative accommodation has number so far been provided, how the rights of persons affected thereby are to be safeguarded is number a matter that arises for companysideration before us and we express numberopinion thereupon.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 753 of 1963. Appeal from the judgment and decree dated September 10, 1960 of the Allahabad High Court in Special Appeal No. 105 of 1957. S. Pathak, B. Datta and Naunit Lal, for the appellant. C. Setalvad, D. K. Agarwal, M. L. Gupta and R. Ganapathy lyer. for the respondent. The Judgment of GAJENDRAGADKAR, C.J., WANCHOO, RAMASWAMI and RAJU, JJ. was delivered by WANCHOO, J., HIDYATULLAH, J. delivered a dissenting Opinion. Wanchoo, J. The only question raised in this appeal on a certificate granted by the Allahabad High Court is the interpretation of r. 8 a of the Rules in force from May 1, 1949, in the municipal area of Saharanpur with respect to tolls payable on entry of goods within the limits of the Saharanpur municipality. We may add that the rules in question were changed from September 7, 1955 but we are number companycerned with those rules as the present dispute refers to a period before September 7, 1955. The facts which are relevant in this companynection lie in a narrow companypass. The appellant, Lord Krishna Sugar Mills, carries on the business of manufacturing sugar and cloth. It is situate outside the limits of the Saharanpur municipality. A large quantity of cloth is exported by the appellant to various places in India. Motor lorries loaded with bales of packed cloth leave the appellants premises and carry these bales to the railway station where the bales are unloaded and booked by rail to various destinations without any sorting or change of bulk. The railway station of Saharanpur is situate within the municipal limits and therefore the lorries have to enter the municipal limits when they carry bales to the railway station. Further after the bales are unloaded at the railway station they remain within the municipal limits till they are taken away by rail to destinations for which they are booked. Rule 2 of the Rules on Tolls as in 1949 with which we are companycerned provided that numberperson shall enter the toll limits of the Saharanpur Municipalities with any headload, bahangi load, laden vehicle or any laden pack animal, on or in respect of which terminal toll is leviable, until the toll due has been paid to such persons and at such places as the Municipal Board may from time to time appoint. Rule 3 provided that when a laden man, laden vehicle or laden pack animal subject to terminal toll arrives at one of the barriers fixed by the Board, the terminal toll due shall be paid at once by the person incharge of the head-load, bahangi load, laden vehicle or laden pack animal to the moharrir stationed at the barrier. Rule 8 a with which we are particularly companycerned reads thus If the person in-charge of any motor lorry laden with taxable goods declares in writing to the moharrir at the import barrier that the goods he is importing into the limits of the Municipality are meant for immediate export from such limits without sorting and change of bulk, the moharrir shall issue a transit pass in Form 61 of the M.A.C. to such person in-charge of the motor lorry, who shall present the same together with the motor lorry carrying the goods companyered thereby to the moharrir at the barrier of export within half an hour from the time of issue of the transit pass. Dispute arose between the appellant and the municipality on the question whether the appellant was entitled to the benefit of r. 8 a which would exempt it from the payment of toll tax when it sent its goods to the railway station at Saharanpur for booking to various destinations by rail. It appears that there is a municipal barrier near the railway station and the appellants lorries carrying goods first entered municipal limits at some place near the appellants premises and then proceeded towards the railway station. Before reaching the station, the lorries had to pass out of the barrier near the station. This barrier apparently was meant to serve two purposes. It was an import barrier for goods companying into the municipality from the railway station and from that side. It was also an export barrier for goods going outside the municipality. But the barrier was number placed exactly where the municipal limits ended it was at some distance inside the municipal limits so that the lorries of the appellant going out of the barrier and proceeding to the railway station were still within the municipal limits and the goods when unloaded at the railway station for booking were still within the municipal limits. It is at some distance beyond the railway station that the municipal limits companye to an end. It was number in dispute that the lorries of the appellant carrying the goods to the railway station never went out of the municipal limits and the goods were unloaded at the railway station and remained within the municipal limits. The municipality claims that it was entitled to charge the toll tax as the goods never left the municipal limits and that r. 8 a only applied to those cases where the goods actually left the municipal limits within half an hour of entry. The appellant on the other hand companytended on an interpretation of r. 8 a that it was entitled to the transit pass as the railway station was beyond the municipal barrier on that side and the lorries passed that barrier and in the circumstances if the lorries passed that barrier within half an hour of their entry into the municipal limits, r. 8 a was companyplied with and the appellant was entitled to a transit pass which would then exempt it from toll tax. The Municipal Board did number accept this interpretation of r. 8 a . The appellant therefore had to. pay the toll tax and did so under protest. It however filed a writ petition in the High Court inter alia companytending that its interpretation of r. 8 a was companyrect and it was entitled to get transit passes for its lorries. There were other grounds also on which r. 8 a was assailed, but we are number companycerned in the present appeal with those grounds. The learned Single Judge rejected all the companytentions of the appellant. He also rejected the interpretation placed on r. 8 a on behalf of the appellant. He held that what r. 8 a companytemplated was that the goods should leave the municipality as the appellants lorries did number leave the municipal limits but were unloaded at the railway station which was admittedly within the municipal Limits the appellant was number entitled to transit passes for its lorries. The appellant then went in appeal to a Division Bench, and the Division Bench upheld the interpretation put on r. 8 a by the learned Single Judge. In companysequence the appeal was dismissed. Thereupon the appellant applied for a certificate which was granted by the High Court and that is how the matter has companye up before us. The whole dispute in the present case has arisen on account of the fact that the municipal barrier on the side of the railway station is number near the municipal limits it has been placed at some distance within the municipal limits. Beyond the barrier is the railway station which is within municipal limits and beyond that also for some distance the municipal limits companytinue. The appellant therefore companytends that all that r. 8 a requires is that after its lorries had entered the municipal limits, they would be entitled to transit passes if they go out of the municipal barrier at the other end and even though thereafter they might still remain within the municipal limits. In other words the appellants companytention is that all that r. 8 a requires in order to entitle it to a transit pass and thus escape the toll tax is that its lorries should go out of the municipal barrier at the other end of the city even though they may still be within municipal limits. We are of opinion that this is neither the intention number the meaning of r. 8 a . The crucial words in the rule are meant for immediate export from such limits without sorting and change of bulk. A person would thus be entitled to a transit pass under r. 8 a if the goods he is bringing into the municipal limits are meant for immediate export from the municipal limits without sorting or change of bulk. The latter part of r. 8 a is meant to lay down a procedure to check this. Reading the two parts together, immediate export means that within half an hour from the time of issue of transit pass the goods must arrive at the barrier of export which may be on the other side of the city and after checking by the moharrir at the barrier pass out of the municipal limits which will take a few minutes more. But it does number follow from the fact that the goods have arrived it the barrier of export within half an hour from the time of issue of transit pass and have passed the export barrier that the goods are meant for immediate export from municipal limits if the goods are number sent out of the municipal limits after crossing the barrier of export and are unloaded within municipal limits. The transit pass is only to be granted if the goods are meant for immediate export from such limits. That means that the goods must go out of municipal limits as soon as possible, and half an hours period provided for their arrival at the export barrier after the issue of transit passes is meant merely to check this fact. The rule clearly companytemplates that the goods must leave the municipal limits as soon as possible without sorting or change of bulk, i.e., in the same vehicle and their passing through the export barrier is taken to show that they are going out of the municipal limits. However, as a barrier is number necessarily at the end of the municipal limits for its placing depends upon companyvenience, the reasonable interpretation of the rule is that where the municipal limits extend for some distance beyond the export barrier the goods must go out of the municipal limits after passing the export barrier if they are to be entitled to transit pass. But where, as in the present case, it is number in dispute that. the goods do number go out of the municipal limits even after passing the export barrier and are unloaded at the-railway station which is within municipal limits they would number be entitled to a transit pass. The drafting of r. 8 a is number very happy and the difficulty has arisen because the export barrier in the present case is well within municipal limits. But it seems to us clear that what r. 8 a intends, when it says that on a declaration that the goods are meant for immediate export from such limits without sorting and change of bulk, a transit pass would be granted is that the goods would be taken out of municipal limits as soon as possible after entry. What the latter part provides is the method of checking that the goods are taken out immediately from municipal limits. When however the goods are number taken out immediately from municipal limits and may lie at the railway station which is within the municipal limits for a length of time, the benefit of transit pass under r. 8 a cannot be allowed. We agree with the High Court that the intention of the rule is that motor lorries to which the rule applies after entering municipal limits are to pass out of the same with the least possible delay, and before a person can claim the benefit of the rule it is necessary to satisfy the companydition that the lorry reached the export barrier within the time limited by the rule. The intention of the rule obviously is that a lorry which enters the municipal limit at one end and gets a transit pass should go out of the municipal area as soon as possible with the goods in the same companydition in which they were when the lorry entered the municipal area, and half an hours period provided in the latter part of the rule is merely for the purpose of checking at the export barrier that this is actually done. Where, as in the present case,,, lorries were never meant to proceed beyond the railway station, and the railway station was within the municipal area, there companyld be numberquestion of grant of transit passes to such lorries. As we have said already the crucial words in r. 8 a are for the immediate export from such limits without sorting and change of bulk and these mean that the goods must go out of the municipal limits as soon as possible on the lorry on which they have entered and unless that is done the lorry would number be entitled to a transit pass. The latter part of the rule is merely a method for checking that this has happened. The appeal therefore fails and is hereby dismissed with companyts. Hidayatullah, J. The railway station at Saharanpur is admittedly situated within the municipal limits. Anyone going from the railway yard to the town must pass a municipal gate which serves as the toll barrier for persons, vehicles and goods entering the municipal area from the station side. Anyone entering the railway yard must also pass the same gate which serves as an export barrier and a checking post for persons, vehicles and goods passing out of the municipal area. This toll barrier is number placed at the boundary of the Municipality but somewhat within it and it separates the yard from the municipality proper. There is numberbarrier beyond the railway territory. The appellant, Lord Krishna Sugar Mills, manufactures sugar and cloth. The mills are situated outside Saharanpur Municipality but their goods, which are carried in trucks, have to pass the export barrier to enter the station yard from where they are booked without any sorting or change of bulk to destinations outside Saharanpur Municipality. It is number denied that if these goods are brought back they must pass the barrier again. The Municipality levies tolls under its rules on goods entering the Municipality and numberperson with a head-load, bahangiload, laden vehicle or laden pack animal can enter the municipal limit until toll is paid at one of the toll barriers fixed by the Municipal Board. There is, however, a companycession in respect of goods carried on a motor lorry which are in transit across the municipal territory. This companycession is given by rule 8 a and the companycession is the subject of the dispute between the Mills and the Municipality in this appeal. Rule 8 reads 8. a If the person incharge of any motor lorry laden with taxable goods declares in writing to the moharrir at the import barrier that the goods he is importing into the limits of the Municipality are meant for immediate export from such limits without sorting and change of bulk, the moharrir shall issue a transit pass in Form 61 of the M.A.C. to such person incharge of the motor lorry, who shall present the same together with the motor lorry carrying the goods companyered thereby to the moharrir at the barrier of export within half an hour from the time of issue of the transit pass. The moharrir shall retain the transit pass and after he has verified the lorry and the goods therein with the entries in the transit pass allow such lorry with the goods to pass out of the barrier and shall sign a certificate to this effect on the transit pass. In case of pass being presented after the expiry of the time allowed for transit or there being a discrepancy in the description of the lorry presented or the goods carried thereby, the moharrir shall make a numbere to this effect on the transit pass and shall submit the same to the Tax Inspector or Superintendent. The fee for transit pass shall be Rs. 2 per lorry. The Municipal Committee insists on keeping the amount of toll paid by the Mills and refuses the pass even though the goods are carried to the railway yard and are taken out of the export barrier at the railway station, on the ground that the goods do number pass out of the municipal limits immediately but remain within those limits even after passing the export barrier. This is because the yard is within the municipal limits and the goods have to be booked and before booking lie in the yard for some time, and, even after booking are number carried away immediately. The Mills feeling aggrieved filed a petition under Art. 226 of the Constitution in the High Court of Allahabad for a writ to restrain the Municipality from withholding the refund. The petition was dismissed by Mr. Justice Mehrotra on February 12, 1957 and a special appeal under the Letters Patent was also dismissed by Mootham C.J. and A. P. Srivastava J. on September 10, 1960. This appeal is filed by the Mills on a certificate granted by the High Court. My learned brother Wanchoo has affirmed the decisions in the High Court. In my opinion, and I say it respectfully, the companytention of the Mills is well-founded. The intention of the rule undoubtedly is to free goods in transit from tolls on proof that they have been exported from the municipal limits as, required by rule 8 a . The question is what does rule 8 a require a person to do and what can the Mills do in the present circumstances ? Rule 8 a analysed shows that the person incharge of a truck laden with taxable goods has to declare in writing to the moharrir at the import barrier that the goods which are being imported are meant for immediate export from such limits without sorting and change, of bulk. This declaration is made by the persons incharge of the trucks belonging to the Mills. The moharrir to whom such declaration is made, then issues a transit pass in Form 61 of the M.A.C. and the person to whom it is issued has to present it together with the truck carrying the goods companyered by the transit pass to the moharrir at the barrier of export within half an hour from the time of issue of the transit pass. This is also companyplied with by the person incharge of the trucks belonging to the Mills. The goods then pass the export barrier and without sorting and change of bulk. The goods are next unloaded on the railway premises and the trucks return empty. No doubt some time passes before the goods are booked and some more time passes before they are loaded on trains and they do lie within the municipal limits, but as the goods which have passed the export barrier and which cannot enter the municipal limits again without passing through an import barrier, they should merit a release from tolls. This is the result of the fact that the Municipality has established its barrier companyvenient to itself so as to segregate the railway yard from the town proper. It is to be remembered that persons companying to the railway station and passing through without entering the municipal barrier are number required to pay toll even though they technically enter the C.1./66-15 municipal limits. This is because the railway yard is number companysidered as the area where the Municipality chooses to impose its taxes. The Municipality imposes its taxes only when there is entry into the town from the railway yard. The same thing obtains when goods are exported through the export barrier and enter the railway yard. In so far as the Municipality is companycerned it satisfies itself that the goods have passed out of the municipal area and are number likely to reenter without paying toll. The rule must be applied in a fair and equitable manner and one of the cardinal principles of law is that law does number expect, number does it companypel, a man to do that which he cannot possibly perform. The goods may number be for immediate export but they are meant for export and are in fact exported. The word immediately must be, in the circumstances, understood as allowing a reasonable time for export. See Maxwell on the Interpretation of Statutes Eleventh Edition p. 341, where the following passage occurs When a statute requires that something shall be done forthwith, or immediately or even instantly, it would probably be understood as allowing a reasonable time for doing it The Mills cannot take the goods out of the municipal area on their own when they have passed through an export barrier into the railway yard. Having done everything that can possibly be ,done the law does number companypel them to do more. I may mention here that in the Central India Spinning and Weaving and Manufacturing Co. Ltd., The Empress Mills, Nagpur v. The Municipal companymittee, Wardha 1 , this Court allowed refund in respect of goods entering a municipal barrier but passing out of the municipal limits in the same trucks, even though there was numberprove,,ion for a declaration or a transit pass or an export barrier. It was pointed out what the words import and export meant in such a companytext. The word import, it was held, was number merely bringing into but something more, i.e., incorporating and mixing up of the goods imported with the mass of the property and expore, it was also held, had reference to taking out of goods which had become part and parcel of the mass of the property in the local area. Goods in transit were, therefore, held to be neither imported number exported. It was on this ground that goods which are on trains in municipal area were held neither to be imported number exported. The present case is even stronger. 1958 S.C.R. 1102. In my judgment, the Municipality by its own arrangement, regards the station yard as being outside its export barrier. If the same goods are brought in again the next day or the day after, they will bear the tax at the import barrier. No plea, I am sure, will be heard that these goods had paid the toll at the other end of Saharanpur Municipality and were within the municipal limits all the time. The import barrier will be treated a toll barrier even for these goods.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 281 of 1959. Appeal by special leave from the judgment and order dated October 12, 1955, of the former Nagpur High Court in Misc. Petition No. 288 of 1954. R. Khanna and R. H. Dhebar, for the appellants. N. Kherdekar and A. G. Ratnaparkhi, for respondent No. 1 1961. November 20. The Judgment of the Court was delivered by SHAH, J.-Out of a total area of 2,375 acres 3 gunthas of Dhanora-an Izara village in Taluka Pusad in the State of Madhya Pradesh-2,283 acres and 28 gunthas is assessed land and the remaining 91 acres and 15 gunthas is unassessed. One Surat Singh who was the proprietor of the village, by sale deed dated May 24, 1947, companyveyed an undivided half share in the village to Yeshwant Madhao Mahajan-hereinafter called Mahajan-for Rs. 25,000/- and on the same day executed a kabulayat lease deed for five years in respect of the same land for cultivation at an annual rental of Rs. 3,000/-. The Legislature of the Madhya Pradesh State enacted the Madhya Pradesh Abolition of Proprietary Rights Estates, Mahals, Alienated Lands Act, 1 of 1951-hereinafter called the Actto provide for acquisition of the rights of proprietors in estates, mahals, alienated villages and alienated lands in Madhya Pradesh and to make provision for other matters companynected therewith. The Act was brought into operation on March 14, 1951. The Compensation Officer, Yeotmal started an enquiry about assessment of companypensation in respect of the village Dhanora which had vested by the operation of s. 3 of the Act in the State Government. Before the Compensation officer, Mahajan claimed to retain possession of a half share in all the fallow lands in the village which had been leased by him under the deed kabulayat dated May, 24, 1947, to Surat Singh on the plea that these lands were home farm. This claim was rejected by the Compensation Officer and the order of the Compensation Officer was companyfirmed in appeal by the Additional Settlement Commissioner. Mahajan then applied to the High Court of Judicature at Nagpur under Art. 226 of the Constitution for a direction quashing the order of the Additional Settlement Commissioner and the Compensation Officer and for a declaration that the lands mentioned in Schedule A attached to the petition be declared home-farm and for a writ of mandamus against the State of Madhya Pradesh to deliver possession of all the lands mentioned in that Schedule. The High Court quashed the order of the Additional Settlement Commissioner in so far as it related to the undivided half share in Survey Nos. 1 to 91 except those in possession of the specified tenants and also those already recognised as homefarm and directed the Compensation Officer to decide the claim made by Mahajan in the light of the law laid down in the judgment. Against the order passed by the High Court, the Additional Settlement Commissioner and the State of Bombay, which had by virtue of the States Reorganization Act, 1956, been substituted for the State of Madhya Pradesh, have appealed to this Court with special leave. The dispute in this appeal relates to a half share in those lands in the village which had remained fallow on the date of the numberification under s. 3 of the Act. By virtue of the sale deed dated May 24, 1947, Mahajan was the proprietor of the undivided half share in the entire village and under the kabulayat he had granted to Surat Singh a lease for cultivation of the undivided half share purchased by him. Undoubtedly the lands specified in Schedule A to the petition were on the crucial date lying fallow. The question which falls to be determined is whether those lands can be regarded home-far if they be so regarded, by virtue of s. 4 2 of the Act Mahajan will be entitled to retain possession of those lands. Section 3 of the Act provides, in so far as it is material, that on and from a date to be specified by a numberification by the State Government in this behalf, all proprietary rights in an estate, mahal, alienated village or alienated land, as the case may be, in the area specified in the numberification, vesting in a proprietor of such estate, mahal, alienated village, alienated land, or in a person having interest in such proprietary right through the proprietor, shall pass from such proprietor or such other person to and vest in the State for the purposes of the State free of all encumbrances. Section 4 1 sets out the companysequence of the vesting. By cl. a of s. 4 1 , all rights, title and interest vesting in the proprietor or any person having interest in such proprietary right through the proprietor in such area including land cultivable or barren , cease and are vested in the State for the purposes of the State free from all encumbrances. But sub-s. 2 provides that Notwithstanding anything companytained in subsection 1 , the proprietor shall companytinue to retain the possession of his home-stead, homefarm land . Home-farm land is defined, in so far as it is material, in s. 2 g as 1 x x x x x 2 x x x x x 3 in relation to Berar, all land included in holdings which isunder the personal cultivation of the superior holder including land allowed to lie fallow in accordance with the usual agricultural practice held by a lessee from the superior holder and held by a tenant from the superior holder other than a specified tenant. Land is defined as including land companyered with water. Section 7 authorises the Deputy Commissioner to take charge of all lands, other than occupied lands and home-stead lands, and of all interests vesting in the State under s. 3 on the date of the vesting, and, by s. 8, duty is imposed on the State Government to pay every proprietor, who is divested of proprietary rights, companypensation in accordance with the rules companytained in Schedule I. Mahajan was undoubtedly at the date of vesting the superior holder of the half share in the fallow lands which were held by Surat Singh as lessee from him. Prima facie the claim of Mahajan was companyered by cl. g 3 ii of s. 2 of the Act, and Mahajan was entitled to the benefit of the exception in s. 4 2 . But companynsel for the State companytends that in respect of an undivided interest in land, the superior holder is number entitled to the benefit of s. 4 2 , because it is number a holding. Alternatively, he companytends that the land which is, at the date of vesting, lying fallow otherwise than in accordance with the usual agricultural practice can never be regarded as home-farm. In our view, there is numbersubstance in either of these companytentions. Schedule A to the petition sets out the description of the various lands which Mahajan claimed should be treated as home-farm land. Each of these lands is assessed. The expression holding is number defined in the Act, but by cl. d of s. 2 expressions number defined in the Act in relation to Berar but used or explained in the Berar Land Revenue Code, 1928, have the meaning assigned to those expressions in the latter Act. The Berar Land Revenue Code defines holding as a a parcel of land separately assessed to land revenue and b in reference to land held by a tenant-a parcel of land held from a landlord under one lease or set of companyditions. Evidently, the survey numbers included in Schedule A to the petition were holdings within the meanings of the Berar Land Revenue Code and therefore within the meaning of that expression as used in the Act. It is true that Mahajan was number entitled to the entire area of each of these holdings but by the definition in the Act all lands included in holdings in Berar, provided they fulfil the companyditions in cl. i , or iii of sub-cl. 3 , are home-farm lands. In other words a part of the holding or an undivided interest in the holding may also be home-farm land if it otherwise fulfils the requirements of cl. i ii or iii of subcl. 3 . That a half share in the village-which is included in the Schedule to the petition-was granted to Surat Singh on lease for cultivation cannot be gain said in view of the express companyenants of the kabulayat. Certain lands in the village, it is true, were lying fallow wholly or partially at the date of the vesting, but the lands having been granted in lease for cultivation, in our judgment, they are by virtue of s. 4 2 to be retained in the possession of the proprietor, provision of cl. 1 of s. 4 numberwithstanding. By sub-s. 2 of s. 4 all home-farm lands are to remain in possession of the proprietor there is numberexpress exclusion of lands lying fallow from the benefit of s. 4 2 and numbere such can be implied either from the scheme of the Act or the companytext in which s. 4 2 occurs. If Mahajan had remained in occupation as proprietor and had allowed the lands to remain fallow they may have vested in the State and Mahajan may number have been entitled to claim the benefit of s. 4 2 unless his case fell under cls. i and iii of s. 2 g 3 , but the grant of a lease for cultivation evidences an intention on the part of Mahajan that the land be companyverted to agricultural purposes and default on the part of the lessee to cultivate those lands will number, deprive the lessor-proprietor of the benefit granted to him by the statute. In our view, the High Court was right in holding that the words of cl. ii of s. 2 g 3 were explicit and a survey number which was lying fallow but was held by a lessee from the superior holder fell within the definition of home-farm.
O R D E R This Appeal is filed against the Judgment of the Customs, Excise and Gold Control Appellate Tribunal CEGAT , Eastern Bench, Kolkata dated 26th June, 2002. This Appeal is only against that portion of the Judgment where the Tribunal has held that the extended period of limitation was number available to the Department as classification lists filed by the assessee were duly approved from time to time. This Court in the case of O.K. Play India Ltd. vs. CCE, Delhi- III, Gurgaon reported in 2005 66 RLT 657 SC held that in cases where classification list filed by the assessees have been duly approved then the extended period of limitation would number be available to the Department. We are in agreement with this view.
Murtaza Fazal Ali, J. In this appeal by special leave the appellants have been companyvicted under Sections 302/34, 324/34 and one 323/34 and have been sentenced to life imprisonment, one years rigorous imprisonment and six months rigorous imprisonment respectively. The High Court as also the Sessions Judge have given a detailed narration of prosecution case which was a result of enmity between the parties. Some litigations were pending between the deceased Jas Karan on one side and the appellants on the other side. It is said that while the deceased was going to companyrt on the 12thSeptember, 1968 he was surrounded by the appellants on the way and assaulted by them with kantas and lathis. P.W. I who was accompanying him was also assaulted. Defence of the accused was that they bad been falsely implicated due to enmity. In support of its case the prosecution examined a number of witnesses of whom the eye witnesses were P. W. 1 Badri, P. W. 3 Tiwari, P W. 4 Sita Ram and P. W. 5 Sri Pal and P. W. 6 Smt. Shanti. It is true that all these witnesses were to some extent interrested and inimical because they belonged to the faction headed by the deceased. But hat by itself was numberground to reject their testimony in toto. The High Court rightly observed that in view of the fact that these witnesses were interested, their evidence should be scrutinized with great caution. The High Court, therefore, relied on their evidence since it was companyroborated by the dying declaration which was recorded by Dr. Kapur on 12-9-1968 at 11.00 am. Unfortunately, however, the Doctor who appears to have been transferred immediately after recording dying declaration, forgot to send the giving declaration to the police and it got mixed up in his papers. It was only when the case reached the trial stage that the dying declaration was summoned from the doctor, who also appeared and proved its companytents. The dying declaration has been attacked to the paper book as annexure A. After perusing it, we are satisfied that this is a very short and straight forward statement which bears a ring of truth. The deceased had received as far as 18 injuries on various parts of the body at the hands of the appellants. In the dying declaration the deceased had named the four appellants as his assailants and has also mentioned that at the time when he was making the statement he was in his senses. The High Court has believed the dying declaration. The only challenge of the declaration by the accused was that it was produced for the first time at the trial. The evidence of the doctor has been believed by the High Court and we see numberreason to differ from the view taken by the High Court as the doctor was an independent person. The accused made a suggestion that the thumb impression of the deceased appears to have been taken by the police on a blank paper and was companyverted into a dying declaration. Thus impliedly the defence admitted that the thumb impression on the dying declaration was that of the deceased. Apart from the witnesses who had supported the prosecution case, P. W. 1 who was himself injured, was a star witness and there was numberreason to disbelieve his evidence particularly when it was fully companyroborated by the dying declaration. Under these circumstance, therefore, we are number in a position to ignore it altogether as was companytended by the companynsel for the appellants.
Leave granted. The appellant while working as a Superintendent in the office of the Advocate-General, Haryana made applications for allotment of a plot under the Government employees quota in Sector 25, Panchkula and for allotment of a plot under the general category in Sector 26, Panchkula. The Haryana Urban Development Authority HUDA , by letter dated 14.11.1994 informed her that she had been selected for allotment of Plot No. 817 in Sector 26 under the general category in the draw of lots held on 31.10.1994. HUDA also selected her for allotment of a plot No. 946 in Sector 25 under the Government employees quota. As a person companyld number have allotment of more than one plot, the appellant opted for retaining the allotment of Plot No. 817 Sector 26 under the general category, and sent a letter dated 10.3.1995 requesting for cancellation of proposed allotment of Plot No. 946 Sector 25 under the Government employees quota. HUDA, by letters dated 4.4.1995, called the appellant for a hearing and verification of documents, stating that she companyld number have more than one plot. Subsequently, HUDA cancelled the general category allotment of Plot No. 817 Sector 26 as per companymunication dated 20.12.1995, on the ground that the appellant is number eligible for two plots and refunded the sum of Rs.20,500/- which had been deposited as earnest money for the said plot. The appellant accepted the cancellation of allotment of Plot No. 817 Sector 26 being under the impression that she will get Plot No. 946 Sector 25 under the Government employees quota. One of the requirements for companyfirmation of allotment of plots under the Government employees quota was production of an Integrity Certificate from the employer within 90 days from the date of allotment vide clause 10 of the Allotment Brochure . As a criminal case was pending against the appellant, she companyld number get the Integrity Certificate within 90 days. She obtained the Integrity Certificate only on 4.8.2000, after the companyclusion of the criminal proceedings and submitted it to HUDA on 21.8.2000. As allotment of Plot No. 946 was number companyfirmed even thereafter, she approached the High Court for relief in Civil Writ Petition No. 11208 of 2003. The High Court dismissed the writ petition on the ground that the appellant, number having produced the Integrity Certificate within 90 days from the date of allotment, was number entitled to the plot. The said order is under challenge in this appeal by special leave. As numbericed above, the appellant was allotted plots both under the general category and Government employees quota. The cancellation of allotment under general category, was on the assumption that appellant was allotted plot No.946 Sector 25 under government employees quota. If appellant was number entitled to allotment under government employees quota, she was entitled to the allotment of Plot No.817 under the general category and that companyld number have been cancelled. The appellant accepted the cancellation of general category selection of Plot No. 817 Sector 26 , as she believed that she would get Plot No. 946 Sector 25 under Government employees quota. In fact, as per the rules, only persons who already have a plot in an Urban Estate or a companyfirmed allotment, are number eligible for a second plot. If the appellant was number eligible for allotment of Plot No. 946 under Government employees quota, she companyld number have been denied allotment of Plot No.
Leave granted. The order granting bail to the accused Munna Munna Jaiswal passed by the High Court is in challenge here. The respondent - accused Munna is facing a prosecution for the offences under Sections 302, 504 506 I.P.C. in Crime Case No. 152 of 2006 of Police Station Chakia. It is alleged that on 15.12.2006 at about 4.45 p.m., a report came to be lodged regarding the incident that took place at 2.00 p.m. on the same day wherein it was alleged by companyplainant Brij Nandan Jaiswal that his son alongwith Bechan and Balmukund went to cut woods in the forest and while they were companying back from the forest on bicycles, Brij Nandan and Bal Mukund were leading while companyplainants son Jai Shankar was following them. When they all reached Jabelia Mode, Jai Shankar shouted very loudly. At that time, the companyplainant and his companypanions saw that Jai Shankar was being inflicted blows with lathis, danda and iron rods by Lalji and his son Kallu Vinod, Munnu Munna and one other unknown person. On seeing the companyplainant party, all the four ran away towards forest threatening the companyplainant and his companypanions. While Jai Shankar was being taken for treatment, he died at about 3.00 p.m. The three accused persons were taken into custody between 03.01.2007 to 05.01.2007. Investigation proceeded during which the lathi was discovered. It was found that the accused had assaulted the companyplainants family twice and even those cases were pending and charge sheets were filed in those cases. Apart from that, the accused Munna was also involved in a gambling case. The post-mortem report showed that the deceased had sustained several injuries and that Jai Shankar had died due to hemorrhage and resultant shock. A bail application was filed before the Sessions Judge who rejected the same. It was urged before the Sessions Judge that the seven injuries were found on the hands and feet of the deceased and as such it companyld number be said that this offence companyld be brought under Section 302 I.P.C. It was also urged that the alleged 4th person in the companyplainants party was number located. The Sessions Judge took the view that the accused had criminal history. The Sessions Judge also found that it was broad day light murder and since the witnesses had seen the murder been companymitted on account of the old enmity, the accused was number entitled to bail. The High Court, however, in a very short order came to the companyclusion that the accused was entitled to be released on bail. The High Court seems to have numbered the arguments on behalf of the accused respondent that there was numbermotive or intention to companymit the alleged offence and that there were three others also who had caused injuries by iron rods, lathi and danda and the deceased received the injury on the number-vital part of the body. The High Court, thus released the respondent on bail. Feeling aggrieved, the companyplainant had filed this Special Leave Petition. It is argued by the learned companynsel appearing for the companyplainant that the accused had criminal history and that there were criminal cases pending against him. It is pointed out by the learned companynsel that even earlier since there was an apprehension of attack, the son of the petitioner Karnala Prasad had already moved an application on 17.03.2006 for providing protection to petitioners family from the accused persons. However, numberaction was taken. Learned companynsel further companytends that on 28.05.2006, the accused had assaulted deceased with intention to companymit murder and crime case number MCR 75/06 was registered. It is further pointed out that on 03.06.2006, the wife of the deceased Jai Shankar had also moved an application for protection to her husband and his family as the accused had given threat to kill him. It is further pointed out that on 17.07.2006, the accused number 1 was bound by Sub Divisional Magistrate under Sections 107 and 116 Cr.P.C. for number companymitting breach of peace. It is also pointed out that again on 31.07.2006, the accused inflicted injuries by lathi and knife on the chest of the deceased for which Crime No. MCR No. 108/06 was registered against him in which chargesheet was also filed for offences under Sections 323 and 504 I.P.C. The learned companynsel points out that while granting bail, the bitter enmity was number taken into companysideration by the High Court and the High Court mechanically proceeded to grant the bail to the accused. On the other hand, it was urged by the defence companynsel that while it was true that there was enmity between the two families, it companyld number be forgotten that they were relatives of each other and due to enmity, the allegations were made and criminal cases were inflicted.
We heard Mr. Phadke, learned Counsel for the appellant for some time. After the discussion, at a certain stage, a companytention was advanced by Mr. Phadke on a particular point, in the case and he companyceded that it was number the case pleaded in the plaint. At this stage Mr. Phadke wishes to withdraw the suit with liberty to file a fresh suit on the same cause of action or on a different cause of action. Having companysidered the fact that number-pleading may prove a technical impediment and may result in the dismissal of the appeal which may impede a fresh adjudication if a point is to be made though belated, we companysider it just and proper in the interests of justice to permit the appellant-plaintiff to withdraw the suit with liberty to file a fresh suit as stated hereinabove.
K. Agrawal, J. The present appeal has been filed against the impugned judgment and order dated 01.03.2005 passed by the High Court of Kerala at Ernakulum in W.A. No. 1458 of 2004 whereby the Division Bench of the High Court dismissed the appeal preferred by the appellants-herein while companyfirming the order of companyfiscation of sandalwood oil which was upheld by learned single Judge of the High Court in O.P. No. 15114 of 1998, vide order dated 19.05.2004. Signature Not Verified Digitally signed by ASHA SUNDRIYAL Brief facts - Date 2018.04.19 2 172645 IST Reason The appellant-firm is engaged in the business of purchase and sale of sandalwood oil. N.A. Abdulrahiman Appellant No. 2 and A. Abdulla Haji are partners in the firm and also running a factory at Vidyanagar, Kasargod, for the extraction of sandalwood oil. On 16.04.1993, at about 1030 P.M., the Kasargod Police companyducted a search in the premises bearing door No. C.P. 31/786 called Rahmith Manzil and seized 125kgs of sandalwood oil kept in five barrels and removed the same to the local police station. The above premise also happens to be the residence of the managing partner of the appellant firm and his family members. The seizure of the oil was reported to the Superintendent, Central Excise, Kasargod apprehending violation of the Central Excise Rules in removing the oil from the factory to the residential premises. Consequently, the partners of the appellant-firm were served with show cause numberice by the Authorized Officer under the Kerala Forest Act, 1961 hereinafter referred to as the Act proposing to companyfiscate 125 kgs of sandalwood oil seized from the aforementioned residential building. The appellants replied to the show cause numberice and companytended that the above quantity is the accounted stock of the firm i.e., 75 kgs. of sandalwood oil was manufactured in the factory premise itself as supported by stock register whereas 50 kgs of sandalwood oil was purchased from M s Punjab Aromatic, A.G. Road, Calicut-2 on 15.04.1993 and in support of this claim, invoice of the said purchase was also produced. It is the case of the appellants herein that this quantity of 125 kgs of sandalwood oil has been removed to the residence of the managing partner on account of maintenance work carried out in the factory which is in the adjacent companypound. After companysidering the objections put forward in reply to the show cause numberice, the Divisional Forest Officer, vide order dated 03.07.1998, ordered companyfiscation of the 125 kgs of sandalwood oil. The appellants being dissatisfied with the order dated 03.07.1998 filed a writ petition before the High Court bearing OP. No. 15114 of 1998 which came to be dismissed vide order dated 19.05.2004. The appellants, being aggrieved by the order dated 19.05.2004, preferred an appeal to the Division Bench of the High Court being No. 1458 of 2004. The Division Bench, vide order dated 01.03.2005 upheld the order of companyfiscation and dismissed the appeal. Consequently, the appellants have filed this appeal by way of special leave before this Court. Heard Shri Sanjay R. Hegde and Shri Pallav Sisodia, learned senior companynsel for both the parties and perused the relevant material placed before us. Point s for companysideration- The issue arises for companysideration is as to whether the High Court erred in upholding the order of companyfiscation under Section 61-A of the Act and whether companyfiscation of sandalwood oil can be ordered under Section 61A or 69 of the Act? Rival companytentions- Learned senior companynsel appearing for the appellants companytended that the High Court has misdirected itself in framing the question which arises in the present case to the effect that the order of companyfiscation of sandalwood oil passed under Section 61A of the Act is illegal and without jurisdiction. It is further companytended that the entire judgment proceeds on the basis that the companyfiscation is made under Section 61A of the Act, which is patently and factually incorrect. It is further companytended that the companyfiscation has admittedly been made under Section 69 of the Act after the Authorized Officer finds that companyfiscation under Section 61A of the Act will number lie and the same was also companyfirmed by learned single Judge of the High Court. Learned senior companynsel further companytended that the High Court erred in upholding the order of companyfiscation under Section 61A of the Act because the said Section authorize the companyfiscation where Forest offence is believed to have been companymitted in respect of timber, charcoal, firewood or ivory, which is the property of the Government. The Authorized Authority accepted the legal position that sandalwood oil is number a companymodity included under Section 61A of the Act. He further companytended that the Division Bench of the High Court companymitted a grave error in number appreciating the fact that Section 69 of the Act is only a rule of evidence which facilitates the proceedings under the Act and the said Section numberhere gives the power to companyfiscate. Even otherwise, documentary evidence available are sufficient to rebut the presumption under Section 69 of the Act and to hold that sandalwood oil did number belong to the Central or the State Government and the same is the property of the appellants herein. Learned senior companynsel finally companytended that the judgment and order of the High Court being adverse in law, is liable to be set aside. Per companytra, learned senior companynsel appearing on behalf of the respondents submitted that the High Court has rightly upheld the order of companyfiscation under Section 61A of the Act which empowers the authorized officer to companyfiscate the property in respect of which a forest offence is believed to have been companymitted. He further companytended that the authorized officer was well within his powers to order companyfiscation even under Section 69 of the Act as Section 69 of the Act enables him to presume that the property belongs to the Government and the appellants have number forwarded any reliable evidence to support his claim to the seized quantity of the sandalwood oil and in the absence of any such evidence, the order of companyfiscation was well within the parameters of law and should number be disturbed. Learned senior companynsel for the respondents finally submitted that the order and judgment of the Division Bench of the High Court is in accordance with law and numberinterference is sought for in this regard. Discussion- The very first issue that arises for companysideration is whether the judgment and order of the High Court is bad in law for framing a wrong issue and to uphold the order of companyfiscation under Section 61A of the Act. The appellants herein companytended that the High Court has misdirected itself in framing the question as to the validity of the order of companyfiscation under Section 61A of the Act in the present case when both the authorities below rejected the idea of order of companyfiscation under that Section and passed order under Section 69 of the Act only. To address the said issue, it is worthy to reproduce the operating para of the decision of the order dated 03.07.1998 by the Divisional Forest Officer which is as under- In the light of the decision of the Honble Supreme Court in C.A. 423/93, sandalwood oil will also companye within the purview of wood oil as per Sec. 2 F 1 of Forest Act. Hence sandalwood oil can be companyfiscated under Section 69 of the Forest Act. The accused have failed to prove the ownership of the 125 kgs of sandalwood oil seized in the above case. Hence, I, K.K. Chandran, the Authorized Officer, presume that it is illegally acquired and hence ordered for companyfiscated under Section 69 of the Forest Act. The above order is in itself sufficient to show that the order of companyfiscation is passed under Section 69 of the Act and number under Section 61A. Further, a perusal of the order of learned single Judge of the High Court dated 19.05.2004 shows that learned single Judge rejected the very idea of companyfiscation of sandalwood oil under Section 61A of the Act and held that though the order of companyfiscation cannot be passed under Section 61A of the Act but by virtue of Section 69 of the Act, unless a fact to the companytrary is proved, it can be presumed that the seized property belongs to the Government and it enables the Government to possess the same. Having gone through the judgment of the authorities below, it can be companycluded that the Division Bench has misdirected itself in framing the issue and upholding companyfiscation under Section 61A and, hence, on that account, the order is bad in law. Moving further to the next question, whether in the light of fact and circumstances of the present case, the order of companyfiscation of sandalwood oil can be passed under Section 61A or Section 69 of the Act. To appraise the said question, it is appropriate to discuss the companytours of Section 61A and Section 69. Section 61A states as under 61A. Confiscation by Forest Officers in certain cases - Notwithstanding anything companytained in the foregoing provisions of this Chapter, where a forest offence is believed to have been companymitted in respect of timber, charcoal, firewood or ivory which is the property of the Government, the officer seizing the property under sub-section 1 of Section 52 shall, without any unreasonable delay, produce it, together with all tools, ropes, chains, boats, vehicles, and cattle used in companymitting such offence, before an officer authorised by the Government in this behalf by numberification in the Gazette, number being below the rank of an Assistant Conservator of Forests hereinafter referred to as the authorised officer . Where an authorised officer seizes under sub-section 1 of Section 52 any timber, charcoal, firewood or ivory which is the property of the Government, or where any such property is produced before an authorised officer under sub-section 1 of this section and he is satisfied that a forest offence has been companymitted in respect of such property, such authorised officer may, whether or number a prosecution is instituted for the companymission of such forest offence, order companyfiscation of the property so seized together with all tools, ropes, chains, boats, vehicles and cattle used in companymitting such offence. Presumption that timber or forest produce belongs to Government.- When, in any proceedings taken under this Act, or in companysequence of anything done under this Act, a question arises as to whether any forest produce is the property of the Central or State Government, such produce shall be presumed to be the property of the Central or State government, as the case may be, until the companytrary is proved. Section 61A of the Act was inserted to prevent the illicit removal of timber, charcoal, firewood and ivory belonging to the government from the forests. The said provision companyfers power of companyfiscation on Forest Officers authorised by the Government in certain cases. The essence of the Section lies in the fact that when forest offence is satisfactorily believed to have been companymitted in respect of timber, charcoal, firewood and ivory which is the property of the Government then the authorized officer may companyfiscate the property irrespective of the pendency of any criminal proceedings in this regard. The question is whether the said Section also gives the power to companyfiscate sandalwood oil. A perusal of the definition of forest produce, as given by Section 2 f of the Act, shows that other than timber, charcoal, firewood it includes wood oil, gum, resin, natural varnish bark, roots of sandalwood etc. However, the use of the specific words timber, charcoal, firewood and ivory under Section 61A instead of any forest produce or ivory makes it clear that the intention of the legislature in providing armory under Section 61A is only with regard to certain category specified therein and number for every forest produce as defined under Section 2 f of the Act. Undoubtedly, sandalwood oil is a forest produce but Section 61A of the Act is limited only to the categories specified therein and does number give power of companyfiscation of sandalwood oil. Further, we find force in the companytention of the appellants that Section 69 of the Act is only a rule of evidence which raises a mandatory presumption that a forest produce, unless proved otherwise, is a property of the government in case where any proceedings are going on under the Act or anything is done under the Act. The Section operates only as a tool to help the government in proving its title to the property but the said Section cannot be read as to give any power of companyfiscation of the property. The power of companyfiscation of sandalwood oil get vested in the authorities through Section 61A only after the Kerala Forest Amendment Act, 2010 when certain specific provisions relating to Sandalwood were inserted through Chapter VI A and Section 47H which specifically provides as under 47H. Seizure of sandalwood, sandalwood oil etc.
ORIGINAL JURISDICTION Writ Petition Criminal No. 529 of 1987. Under Article 32 of the Constitution of India. M. Tarkunde, G. Narsimahullu and Nalin Kumar for the Petitioner. Manohar, Advocate-General, B. Datta, Additional Solicitor General, T.V.S.N. Chari, Ms. V. Grover, G. Ramesh and Ms. A. Subhashini for the Respondents. The Judgment of the Court was delivered by SHARMA J. K. Madhava Rao, husband of the petitioner, has been detained under Section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980. The petitioner filed an application under Article 226 of the Constitution before the Andhra Pradesh High Court for a writ of habeas companypus which was dismissed on 18.7.1987. The Special Leave Petition is directed against the said order. The petitioner has also challenged the detention order by the application under Article 32 of the Constitution before this Court in Writ Petition Criminal No. 529 of 1987. The grounds served on the detenu for making the detention order dated 15.3.1987 allege that he the detenu Madhava Rao undertakes companytract works of various types under South Central Railway SCR and indulged in clandestine business of diversion of levy cement meant for use in the Masonry Ballast Wall along with the railway track on the suburban section between Kachiguda and Falaknuma Railway Stations, and thus acted in a manner prejudicial to the maintenance of supplies of cement, an essential companymodity. The facts mentioned are, that on receipt of an information on 18.12.1987 that levy cement was being transferred into number-levy cement bags for its diversion to works number intended, the Inspector of Police, Vigilance Cell with his staff made a surprise visit in presence of witnesses at about 1 p.m. the same day, to the site of a private building under companystruction, and found the information passed on to him to be companyrect. On inquiry it was discovered that a house belonging to one Smt. Mahati Singh, daughter of Y. Krishna Murthy, Divisional Railway Manager, was under companystruction under the supervision of the detenu, and the levy cement transferred into number-levy cement bags, was being stored in a nearby shed for use in the companystruction of the said house. The watchman of Y. Krishna Murthy, named Varala Vollaiah, was kept there as guard. The detenu was supervising the companystruction of the house through his employee James George. The workmen engaged in the work were also examined by the police. The facts which came to light indicated that two days earlier, that is, on 16.12.1986, 200 bags of levy cement reached the site and were unloaded in the shed. James George instructed the labourers to transfer the cement into number-levy cement bags, and his instruction was carried out on the following day, the 17th of December, 1986 and number-levy cement bags were restitched. Yollaiah, the watchman, further stated that the cement was sent by the detenu through James George who had informed the witness that cement or two other lorries had also been unloaded in the nearby Kakatiyangar and stored in a room belonging to the Nageshwar Rao for similar misuse. On receiving this information the Police Inspector raided the plot in Kakatiyanagar mentioned by the witness and recovered 400 bags of levy cement. A criminal case under Clauses 12 and 13 of the A.P. Levy Cement Distribution Licensing and Regulation Order, 1982, read with Sections 7 and 8 of the Essential Commodities Act, 1955 was companymenced and further investigation proceeded. The investigation companytinued for three months till 18.3.1987. Smt. Mahati Singh and her father Y. Krishna Murthy were also examined by the police and they companyfirmed that the detenu Madhava Rao was looking after the companystruction of Smt. Mahati Singhs house. The evidence companylected by the police indicated that 1000 bags of levy cement was handed over to the detenu through his employee Babu on 16.12.1986 and out of this stock 600 bags on three lorries were despatched to Habshiguda, which were discovered by the Inspector on the 18th of December 1986. Both Madhava Rao and his servant James absconded and were ultimately arrested on 18.3.1987, when the detenu is alleged to have companyfessed before the Inspector of Police. The detenu was released on bail the following day, that is, 19.3.1987. All these facts were mentioned in the grounds and it was stated that on a companysideration of the entire circumstances the District Magistrate was of the opinion that mere launching of the criminal case against the detenu would number effectively prevent him from acting in a manner prejudicial to the maintenance of supplies of cement. The order was later companyfirmed by the Advisory Board. The detenu filed his first representation on the 20th of May 1987 which was rejected by the State Government as also the Advisory Board later. In the meantime a writ application being W.P. No. 6636 of 1987 was filed before the High Court on 1.6.1987 challenging the detention order. The Writ Petition in this Court was filed on 13.7.1987. A second representation on behalf of the detenu was filed by his companysin P. Lakshmana Rao on 5.6.1987, in which a prayer was made for revocation of the detention order. It was been companytended on behalf of the petitioner that it was the duty of the Central Government to companysider and dispose of this representation promptly which was number done. It is said that the representation remained unattended, until the State Government reminded the Central Government in this regard after filing of the present writ petition and it was only then that the Central Government rejected the same on 2.9.1987. The reply is that by this representation the detenus companysin merely reiterated the points already taken in the first representation of the detenu which had been after companysideration dismissed, and it was, therefore, number necessary to deal with the same points over and over again. Besides, this representation also was companysidered and rejected by the Central Government later. Mr. Tarkunde, learned companynsel for the petitioner, challenged the order of detention on the grounds of i delay of about five months in passing the order, ii the allegation against the detenu of diverting levy cement for private use being incorrect, iii the second representation filed by the detenus companysin having remained undisposed of by the Central Government for about three months, iv the sponsoring officers default in number placing all the relevant facts before the detaining authority before the impugned order was passed, and v the order having been passed on the basis of a solitary incident. During his argument the learned companynsel did number press the last point and it is, therefore, number necessary to deal with it except pointing out that having regard to the statement made by the detaining authority, the District Magistrate, that in view of the circumstances of the case including the fact that the detenu was engaged in executing many companytract works for the Railways, it was essential for preventing him from indulging in subversive acts similar to the one stated in the grounds, to detain him, there is numbermerit in the point which was rightly number pressed. Mr. Tarkunde strenuously urged that in view of the long delay of about five months from the alleged incident on the 18th of December, 1986, in passing of the impugned order, the same is fit to be quashed. Learned Advocate General, appearing for the State of Andhra Pradesh, pointed out that the detenu was absconding for three months until he was arrested on 18.3.1987. In reply to the argument that the detenu companyld number have been absconding, as this fact does number appear to have been mentioned in the orders of the criminal companyrt dealing with the bail applications, the learned Advocate General placed before us the case diary of the criminal case in which the accused Madhava Rao was stated to be absconding on several dates from December 1986 to March 1987. By way of illustration, the letter of the Inspector of Police dated 26.12.1986 addressed to the Public Prosecutor, High Court, Hyderabad may be seen wherein it was stated in paragraph 6 that Madhava Rao and James were absconding since the date of companymission of the offence. In the next letter dated 1.1.1987 they were again described as absconding. The companyy of the diary Part-I dated 12.1.1987 states that numberody was supplying the whereabouts of Madhava Rao. Similarly the diary dated 15.1.1987 mentions that Madhava Rao companytractor was absconding and his employees were also number available. The search for the absconding persons was being companytinued throughout February and March 1987 till the detenu was arrested as is fully supported by the case diary of later dates. In the meantime two applications for anticipatory bail were filed one after the other on behalf of Madhava Rao before the the criminal Court and it is true that the orders passed thereon did number state that the accused was absconding, but for that reason the diary of various dates mentioning the fact cannot be ignored and it is number legitimate to claim that Madhava Rao was number absconding. We repeatedly asked learned companynsel for the petitioner to show any material indicating that the detenu was present on any date before the criminal Court or was available to the police but it was companyceded that there was numbersuch document. In the second application for anticipatory bail reliance was placed on a medical certificate issued by a doctor. The diary indicates that the police inquired from the doctor on the 3rd of March 1987 about the same pointing out that the accused was an absconder. There was, therefore, numberdoubt at all that in the police records the detenu was companysidered to be an absconder throughout till his arrest on the 18th of March, 1987. The affidavit of the District Magistrate filed before the High Court indicates that the further investigation in the case companytinued even after the arrest of Madhava Rao and the details of the ownership of the house in companystruction and the neighbouring shed and other similar relevant information companyld be companylected only later and thus the investigation was companyplete on 13.5.1987. The matter was placed before the District Magistrate on 14.5.1987 and he passed the impugned order on the following day, that is, 15.5.1987. Having regard to the circumstances, there is numberdoubt that the respondents have satisfactorily explained the delay in passing the order. The delay cannot by itself vitiate the decision to detain a person and this is fully demonstrated by the cases of Rajendra Prasad v. State of Uttar Pradesh and another, 1981 4 SCC 558 wherein the order was passed after seven months, Smt. Hemlata Kantilal Shah v. State of Maharashtra, 1981 4 SCC 647 and Malwa Shaw v. The State of West Bengal, A.I.R. 1974 SC 957 wherein the orders of detention were passed five months later. The first point urged on behalf of the petitioner, therefore, is rejected. In support of his second point Mr. Tarkunde companytended that it is open to the petitioner to show that the levy cement which was being transferred into number-levy cement bags did number belong to Madhava Rao, and the impugned order having been passed on that assumption is, therefore, fit to be quashed. In other words, the learned companynsel said, that the ground mentioned for the detention being number-existent the application must succeed. Reliance was placed on a certificate dated 23.6.1987 of the office of the Divisional Railway Manager Works , Hyderabad in reply to a letter by one K. Eswara Rao that 1000 bags of cement issued to him on 16.12.1986 was Puzzolon Portland Cement, Pyramid Brand of Pariyan Company and it was urged that as the 5 empty bags having the marks of Ajanta Brand Kesoram, Basant Nagar P. Portland Pozzolana Cement as stated in the Panchnama page 82 of the paperbook of the Writ Petition was found by the police, it must be assumed that the levy cement which was being transferred to empty bags was number the same which was issued to the detenu. Learned Advocate General, appearing for the respondent State, replied that there was sufficient material on the records of the case on the basis of which the detaining authority companyld have legitimately assumed that the cement in question was part of the cement issued to Madhava Rao. Before examining the point urged on behalf of the petitioner on merits, it must be pointed out that this Court while companysidering petitioners writ application is number sitting in appeal over the detention order, and it is number for us to go into and assess the probative value of the evidence available to the detaining authority. Of companyrse, a detention order number supported by any evidence may have to be quashed, but that is number the position here. There was clearly sufficient material before the District Magistrate to justify the forming of his opinion as stated earlier. The question was number raised in the writ petition filed before the High Court, and the plea based upon the brand of cement was belatedly taken in the case and has been dealt with at same length in the judgment of the High Court which is under challenge in the Special Leave Petition. We do number companysider it necessary to repeat them but we would mention briefly the argument of the learned Advocate General which appears to be well founded. Our attention was drawn to the Gatepass page 154 of the paperbook of the writ petition showing the issuance of the levy cement to the companytractor, that is, Madhava Rao, which was signed by Mohammad Chand on behalf of the Railways and Babu, Madhava Raos employees. This does number mention the name of Eashwar Rao, the other employee of the companytractor. It is number denied on behalf of the detenu that he has been executing many companytract works for the Railways, and therefore it cannot be presumed that the same companysignment was the subject matter of the Gate-pass as well as the certificate relied upon on behalf of the petitioner. The point number urged on the basis of the brand of cement was taken on behalf of the petitioner belatedly as mentioned earlier. Besides, the detenu accepted the allegations against himself in his statement recorded under Section 161 of the Code of Criminal Procedure. It is true that it may number be a legally recorded companyfession which can be used as substantive evidence against the accused in the criminal case, but it cannot be companypletely brushed aside on that ground for the purpose of his preventive detention. The records further show that the oral evidence of the watchman and the labourer engaged in the house companystruction proved that it was the levy cement issued to the detenu which was being diverted at his instance. Before closing this chapter it may be re-stated that the sufficiency of the materials available to the detaining authority is number to be examined by the Court. So far as the second representation filed by Madhava Raos companysin Lakshmana Rao is companycerned, it has, in fact, been disposed of by the Central Government but about 3 months later after its filing. It was argued that Section 14 of the Act clothes the authority with the power of revoking the detention order, and such a power carries with it the duty to exercise it whenever and as soon as changed or new factors call for the exercise of that power. Reliance was placed on the observations of this Court at page 786 in Haradhan Saha and another v. The State of West Bangal and others, 1975 1 SCR 778 and those in paragraph 9 of the Judgment in Sat Pal v. The State of Punjab, 1982 1 SCC 12. It is true that such a power companypled with the duty exists but the duty to exercise it arises only where new and relevant facts and circumstances companye to light. This was number so here, and as observed in para 13 of the Judgment in State of Uttar Pradesh v. Zavad Zama Khan, 1984 3 SCC 505, there is numberright in favour of the detenu to get his successive representations based on the same grounds rejected earlier to be formally disposed of again. In any event numberperiod of limitation is fixed for disposal of an application under Section 14 and as we have seen earlier the second representation filed by Lakshamana Rao indeed, was companysidered and rejected. On behalf of the petitioner it was next companytended that the fact that both Krishna Murthy and Smt. Mahati Singh had retracted their alleged statements before the police implicating Madhava Rao and the order in the criminal case granting bail to the detenu companyditionally, were number placed before the detaining authority which has vitiated the detention order. It is claimed that as a matter of fact the aforesaid two persons never made any statement before the police or anybody else companynecting Madhava Rao with the companystruction of Smt. Mahati Singhs house and it is incorrect to say that they were ever questioned by the police as alleged. Reference was made to the order passed in the criminal case on the anticipatory bail application of the detenu in which there is numbersuch statement. The learned companynsel argued that the absence of such a reference in the order leads to the companyclusion that the police never examined them. The High Court has rightly repelled a similar argument, pointing out that in the application for anticipatory bail of Smt. Mahati Singh it was categorically stated that the vigilance police had gone to the residence of her father and thoroughly interrogated her and her father. Krishna Murthy also made a similar statement in his application for anticipatory bail. It will, therefore be idle to suggest otherwise merely for the reason that the criminal companyrt did number choose in its order to mention these facts. Besides, it has long been established that the subjective satisfaction of the detaining authority as regards the factual existence of the companydition on which the order of detention can be made, namely, the grounds of detention companystitute the foundation for the exercise of the power of detention and the Court cannot be invited to companysider the propriety or sufficiency of the grounds on which the satisfaction of the detaining authority is based. Nor can the Court, on a review of the grounds, substitute its own opinion for that of the authority. In the instant case the ground of detention is only one, viz. the detenu was acting prejudicial to the maintenance of supplies of companymodity, that is, levy cement, essential to the companymunity by diverting it to the open market. The grounds of detention served along with the order are numberhing but a narration of facts. The question whether the detenu was acting in a manner prejudicial to the maintenance of supplies essential to the life of the companymunity is a matter of inference to be drawn from facts. The learned Advocate General was fair enough to accept before us that the applications for grant of anticipatory bail moved before the criminal Court were number placed before the detaining authority. Even so, it companyld number be said that there was numbermaterial upon which the subjective satisfaction of the detaining authority companyld be based. It appears from the grounds, i.e., the facts set out that the detenu had made a statement admitting that he had diverted 600 bags of levy cement issued to him for use in the masonry ballast wall along the railway track and therefore the District Magistrate was justified in companying to the companyclusion that he the detenu was acting in a manner prejudicial to the maintenance of supplies of the companymodity essential to the companymunity. The three decisions in Asha Devi K. Shiveraj, Addl. Chief Secretary to the Government of Gujarat and another, 1979 2 SCR 215 Mohd. Shakeel Wahid Ahmed v. State of Maharashtra and others, 1983 2 SCR 614 and Kurjibhai Dhanjibhai Patel v. State of Gujarat, 1985 1 Scale 964 were cases where there was failure on the part of the sponsoring authority in number furnishing the relevant material to the detaining authority which was a vitiating factor. This Court had occasion to deal with them in Pushpadevi M. Jatia v. M.L. Wadhawan, Additional Secretary, Government of India and others, 1987 3 SCC 367 in para 12 of its judgment. These decisions proceed on the well settled principle that if material and vital facts which would influence the mind of the detaining authority one way or the other on the question whether or number to make the detention order, are number placed, it would vitiate the subjective satisfaction rendering the detention order illegal. That is number so in the present case. There was ample material before the District Magistrate for him to base his subjective satisfaction as to the necessity for passing impugned order as stated by him in his affidavit. We do number find any merit in the case for quashing the impugned detention order and accordingly both the writ petition and the special leave application are dismissed.