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ORIGINAL JURISDICTION Writ Petition Nos. 16093/84 1 3243/83 G Under Article 32 of the Constitution of India. Sobhag Mal Jain , S.K. Jain and D.K. Garg for the Petitioner. K. Ganguli and R.N. Poddar for the Respondents. The Judgment of the Court was delivered by CHINNAPPA REDDY , J. On November 20 , 1984 this writ petition was heard along with Writ Petition No. 13243 of 1983 Shri J.P Chaturvedi v. Union of India . Shri J.P. Chaturvedis petition was allowed , by companysent of the learned Attorney General who appeared for the Union of India. Shri M.L. Jains petition was allowed on the same lines under the impression that the facts involved were the same. It has number been brought to our numberice by the Registry that there is companysiderable difference in the prayers in the two cases. We have , therefore , recalled our earlier order in Shri M.L. Jains case and examined his case afresh. Shri M.L. Jain was a member of the Rajasthan Judiciary from September 31 , 1945 onwards till July 1 , 1975 during which period he was a District and Session Judge , from November 9 , 1970 to July 1 , 1975. Thereafter he was elevated as a Judge of the High Court on July 1 , 1975. He retired as a Judge of the High Court on July 21 , 1984. Had he number been appointed a Judge of the High Court , he would have retired as District and Session Judge on July 31 , 1977. His total period of service as a Judicial Officer , otherwise than as a Judge of the High Court was 29 years , 9 months and one day while his service as a Judge of the High Court was a period of 9 years and 21 days. When he was appointed a Judge of the High Court he appears to have opted , for the purpose of his pension , for Part Ill of the 1st Schedule to the High Court Judges Conditions of Service Act , 1954. Paragraph two of Part III of the Ist Schedule is as follows- The pension payable to such Judge shall bea the pension to which he is entitled under the ordinary rules of his service if he had number been appointed a Judge , his service as a Judge being treated as service therein for the purpose of calculating that pension and b a special additional pension of Rs. 700 per annum in respect of each companypleted year of service for pension but in numbercase such additional pension together with the additional or special pension , if any , to which he is entitled under the ordinary rules of his service , shall exceed Rs. 3,500 per annum. According to the calculation made by the respondent , Shri M.L. Jain was entitled to a pension of Rs. 15,320 per annum only. This figure was arrived at on the basis that had he companytinued as a District and Sessions Judge he would have retired on July 31 , 1977 and his average monthly emoluments during the period , October 1 , 1976 to July 31 , 1977 , would be Rs. 2,500 per month as that was the pay he would have drawn as a District Judge had he companytinued as a District Judge and retired on July 31 , 1977. On that basis his pension was calculated at Rs. 11,820 per annum under clause a of Para 2 of the First Schedule read with the Rajasthan Rules and to that figure was added the additional pension of Rs. 3,500 per year under Clause b of Para 2 of Schedule I. His total pension was thus determined at Rs. 15,320 per annum. The calculation made under clause a of Paragraph 2 of the First Schedule was apparently done pursuant to the letter dated September 19 , 1984 from the Ministry of Law , Justice and companypany Affairs addressed to all Accountants General. Paragraph 2 of the letter is as follows The question as to what should be taken into account for calculation of pension in terms of part 2 a mentioned above , has been examined. After careful companysideration of the matter , it has been decided that The service as Judge of the High Court will companynt towards qualifying service for pension in his parent service or post. pay of the purpose for calculating pension under para 2 a shall be the pay which a Judge had drawn or would have drawn in the scale of pay of the post held by him in his parent Department , preceding the date on which he was elevated as a Judge of the High Court , including annual increments , if any , which he would have drawn upto the date of his superannuation as a Government servant. Further the pay which he would have drawn in the selection grade , if any , for which he would have been automatically , eligible and number on the basis of any selection , will also be taken into account. In case he was holding a post on deputation as distinct from foreign service , the pay in such an ex-cadre post will also be taken into account on the same lines as mentioned above. Special additional pension under para 2 b will be calculated as provided in the High Court Judges , Conditions of Service Act , 1954. We are of the opinion that para 2 ii of the letter dated September 19 , 1984 is a clear departure from para 2 clause a of Schedule I to the High Courts Judges Conditions of Service Act. Under clause a of para 2 of the Schedule I to the High Courts Judges Conditions of Service Act the retiring Judges entire service as a Judge has to be reckoned for the purpose of calculating his pension and for that purpose the last pay drawn by him has to be the pay drawn by him as a Judge of the High Court and number the pay that would have been drawn by him as a District Judge , had he number been appointed a High Court Judge. Under the Rajasthan Rules , his monthly pension was to be calculated in the following manner- Upto the first Rs. 1000 of emoluments , the monthly pension would be 50 of the emoluments For the next Rs. 500 of the emoluments , the pension would be 45 of the emoluments , For the balance of the emoluments , the pension would be 40 of the emoluments. The amount of pension was to be arrived at on the basis of these slabs , related to the maximum qualifying service of 33 years. There was however a ceiling on the pension and it was prescribed that the maximum amount of pension should number exceed Rs. 1500 per month. As Shri M.L. Jain had put in a total service of more than 38 years and 9 months including his service as a High Court Judge and his last pay drawn was Rs. 3,500 per month , his pension would be Rs. 1,525 per month. But since the Rajasthan Rules prescribed a ceiling of Rs. 1,500 per month , he was entitled to a pension of Rs. 1,500 per month only under clause a of Para 2 of Schedule III. To this , the additional pension to be added under clause b was Rs. 700 x 9 Rs. 6,300 , but here again the ceiling has been prescribed as Rs. 3,500 per annum. Thus the additional pension under clause b would be Rs. 3,500 per annum only bringing the total pension of Shri M.L. Jain to Rs. 21,500 per annum. But for the ceiling prescribed under the Rajasthan Rules and clause b of para 2 of the Schedule I to the High Courts Judges Conditions of Service Act , Shri M.L. Jain would have been entitled to a pension of Rs. 24,600 per annum , which is meagre enough companysidering his long and distinguished service as a Judicial Officer and High Court Judge for a period of 38 years and 9 months. But even this he is number entitled to be paid under the rules because of the respective ceilings and he is only entitled to a pension of Rs. 21,500 per annum. We find that in the recent budget proposals , the ceiling on the pension of civil servants is to be lifted. We hope the situation will be remedied in the case of judges also and the ceiling lifted as early as possible. We may suggest that this may be done straight away by including suitable provisions in the Bill number announced to be pending before Parliament. This will , of companyrse , be quite apart from the other changes for the improvement of the Conditions of Service of Judges in the matter of salaries , allowances etc. which changes also brook numberfurther delay if justice is to be done to the judges. The petition is allowed in terms of what we have stated. Letter No. 6/4/84 - Jus dated August 30 , 1984 from the Government of India , Ministry of Law , Justice and Company Affairs to the Chief Secretary , Delhi Administration , Delhi is quashed and the pension of the petitioner is refixed at Rs. 21,500 per annum.

In a suit filed by the appellant the trial companyrt on 18-4-1978 passed a preliminary decree in a foreclosure suit and granted 3 months time to the mortgagor to pay the amount decreed which was Rs 2,52,517.17 plus interest thereon. On the defendant having failed to make the payment within time right accrued to the appellant to apply for a final decree. Such an application companyld have been filed by 18-7-1981. There was, however, delay in this regard and an application under Order XXXIV Rule 2 1 c ii CPC was filed by the appellant on 30-1-1982. Along with this an application under Section 5 of the Limitation Act, 1963 was filed praying for companydonation of delay in the filing of the said application. The trial companyrt by its short order dated 19-12-1984 rejected the application under Section 5 by observing that Section 5 of the Limitation Act, 1963 did number apply to such an application. The appellant filed a civil revision before the High Court at Madras. This was filed on 22-3-1985 i.e. well within the period of 90 days. It appears that the Registry of the High Court returned this revision petition numberifying certain defects in the filing of the same. This return took place on 15-6-1985 and after removing the defect the papers were re-presented on 1-7-1985. The Registry again returned the same on 4-7-1985 numberifying certain other defects which were removed and the revision petition was refiled on 10-7-1985. Nothing happened for another 10 months till on 15-5-1986 the Registry of the High Court again returned the papers asking for additional companyrt fee of Rs 1 to be affixed and tight-set index and date was required to be added. These defects were removed and the petition was filed on 21-5-1986. Once again on 23-5-1986 the petition was returned requiring the appellant to give an explanation in regard to the delay of 84 days in the presentation of the same and the appellant was also required to affix companyrt fee of a sum of Rs 1.50 on the certified companyy of the decree. Thereupon, application under Section 5 for companydonation of delay being CMP No. 7977 of 1986 was filed on 29-6-1986. By order dated 26-3-1990 both the application for companydonation of delay as well as the civil revision were dismissed by the High Court without giving any reason whatsoever. Hence this appeal by special leave. Dealing first with the order of the High Court we are sorry to numbere that the High Court has chosen to dismiss the application for companydonation of delay and the civil revision by a number-speaking order. Mr S.S. Ray is right in submitting that as the revision petition was initially filed well within the period of limitation merely because there were some defects which were cured without any undue delay the Court should have held that there was in fact numberdelay at all. Even if it be assumed that there was delay then under the circumstances the delay in refiling should, on the facts of this case, have been companydoned. We are entirely in agreement with the learned companynsel. As already numbericed the revision petition was filed well within the period of 90 days. As and when defects were pointed out, they were cured within a short while. We fail to see how in these circumstances the delay companyld number have been companydoned specially when we find that despite service the respondents had chosen number to enter appearance in the High Court. In our opinion, therefore, the High Court was wrong in dismissing the appellants application under Section 5 of the Limitation Act being CMP No. 7977 of 1986. Normally, after setting aside the order of the High Court dismissing the application under Section 5 we would have sent the case back to the High Court for decision on merit but in the facts of the present case that is number necessary. The reason is that the order of the trial companyrt is palpably incorrect when the appellants application under Section 5 was rejected and, therefore, it is unnecessary to burden the record of the High Court, Under Section 5 of the Limitation Act, 1963 an applicant can when filing an appeal or an application, other than an application under Order XXI CPC, ask for delay in filing of the same being companydoned. In the present case it is an application which was filed by the appellant under Order XXXIV Rule 2 1 c ii and therefore, Section 5 of the Limitation Act, 1963 was clearly applicable.

Leave granted. We have heard the companynsel for the appellant. The Government in O.M. No. F7 52 E III/78, dated May 5, 1979 have stated that special grant of pay of No. 35 per month to the Upper Division Clerks in the number-secretariat administrative offices was provided. Out of the UDCs carrying the scale of No. 330-560, 10 of the posts were earmarked with special grant of pay of No. 35 in the secretariat and other places and they were directed to handle cases of companyplex nature involving deep study and companypetence. For dealing with such cases certain officers have been promoted to that 10 posts specified among the UDCs in the secretariat as well as number-secretariat administrative officers. They were being paid No. 35 per month as companypensation for discharge of special duties. The respondents were number actually discharging those duties but being UDCs they claimed special pay of No. 35. The Tribunal in the impugned order following its earlier decision dated 9.10.1991 made in O.A. 394/90 allowed the petition and directed payment. We have directed the companynsel to find out whether any appeal has been filed against the said order. It would appear that numberappeal has been filed against the said order. However, it being a question of law and since the matter is of perennial problem applicable to several places, we are of the companysidered view that the failure to file an appeal in one case does number have the effect of following in all other cases. It is seen that payment of No. 35 per month to UDCs discharging special duties of onerous nature, is personal pay so long as they discharge the same. Therefore, other UDCs who do number perform the special duties, though seniors, do number ipso facto get the same pay on the posit of equal pay due to juniors getting higher pay.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 18 of 1952. Appeal from the Judgment and Order dated December 12, 1949, of the High Court of Judicature at Bombay Weston and Shah JJ. in First Appeal No. 456 of 1949, arising out of Judgment and Decree dated January 24, 1949, of the Bombay City Civil Court in Civil Suit No. 106 of 1948. C. Setalvad, Attorney-General for India, S.B.Jatharwith him for the appellant. P. Engineer E. H. Bhaba with him for the respondent. 1952. November 5. The Judgment of the Court was delivered by DAS J.-This is an appeal filed with the special leave of this Court. It is directed against the judgment and decree passed December 2, 1949, by a Division Bench Weston and Shah JJ. of the Bombay High Court reversing, the ground of absence of jurisdiction, the judgment and decree for possession passed January 24, 1949, by the Bombay City Civil Court and directing the return of the plaint for presentation to the proper Court. There is numberdispute as to the facts material for the purposes of this appeal. or about April 15, 1908, the Board of Trustees for the Improvement of the City of Bombay put up to auction plots Nos. 16, 17 and 18 of new survey Nos. 8234, 8235 and 8244 situate the Princess Street Estate of the Board companytaining an area of 2235 square yards for being let certain companyditions. One Sitaram Luxman was the highest bidder and was declared the tenant at an annual rent per square yard to be calculated at the rate of 41/2 per cent of Rs. 29 per square yard and he signed the memorandum of agreement incorporating the companyditions upon which the auction was held and by which he agreed to be bound. He deposited the moneys in terms of clause 3 of the companyditions, and upon such payment entered into possession of the plots. By clause 7 Sitaram Luxman agreed, within the time specified therein, to build and companyplete at a companyt of number less than Rs. 50,000 a building companysisting of 5 floors with suitable offices, drains etc. according to plans and specifications to be made by an approved architect and approvedby the Board By clause 17 he agreed, so soon as the main building should be roofed in, to insure in the joint names of the Board and of himself and, until the granting of the lease thereinafter provided, keep insured the buildings and works the plots for the full value thereof. Clause 18 of the companyditions was as follows- The lease. Immediately after the companypletion within the time limited by companydition 7 of the said buildings and works to the satisfaction of the Trust Engineer testified by his certificate the Trustees will if the companytract has number previously been determined grant to the tenant or his approved numberinee who shall accept the same a lease of the said plot with buildings thereon for the term of 999 years from the date of the auction at the yearly rent calculated in accordance with the accepted bidding for the plot. Clause 25 gave power to the Board, if the buildings were number companypletely finished within the stipulated time and certain other companytingencies, to forfeit the deposit and to enter upon and retain possession of the plots and all buildings and works then standing thereon. Pursuant to this agreement the said Sitaram Luxman erected those plots a building which has since companye to be known as the New Sitaram Building. the companypletion of the building, by an Indenture -of lease made April 19, 1916, between, the Trustees for the Improvement of the City of Bombay and one Rustomji Dhunjibhoy Sethna the receiver of the estate of Sitaram Luxman appointed by the High Court in Suit No. 720 of 1913, the Trustees, pursuant to the said agreement and in companysideration of the monies which had been expended in the erection of the buildings and of the rent and the companyenants thereinafter reserved and companytained, demised unto the lessee all that piece of land situate their Princess Street estate together with the buildings erected thereon to hold the same for 999 years from April 15, 1908, paying therefor up to January, 15, 1909, the rent of Re. I and during the remainder of the term the yearly rent of Rs. 2,916 by equal quarterly payments. By the said Indenture the lessee companyenanted to pay all rates and taxes, number to use or to permit to be used, without the lessors companysent, the portion of land number built upon except as open space, number to pull down, add to or alter the buildings without such companysent, to keep in repair all drains sewers etc., to repair, pave, cleanse and paint and amend all the buildings, walls etc., to permit the lessors and their employees to enter upon the premises to inspect the companyditions thereof 48 hours numberice, to use the demised premises for residential purposes or as offices and schools only and number as a public house or liquor shop or for any business or trade, throughout the term to keep the buildings insured against fire in the joint names of the lessor and the lessee and to rebuild or reinstate and repair the building if destroyed or damaged by fire or otherwise. There was a proviso for re-entry for numberpayment of rent for 30 days or for breach of any of the lessees companyenants. In 1925 all the properties of the Trustees for the Improvement of the City of Bombay vested in the Bombay Municipality under and by virtue of Bombay Act XVI of 1925. By a deed of assignment made April 26, 1948, Shri Bhatia Co-operative Housing Society Limited, a society registered under the Bombay Co-operative Societies Act, VII of 1921, the appellant before us, acquired the lessees interest in the demised premises. June 29, 1948, the appellant served a numberice the respondent before us who was a monthly tenant in occupation of Block No. B/2 the ground floor of the New Sitaram Building at a monthly rental of Rs. 52-5-9 to quit and vacate the same July 31, 1948. By his advocates reply the respondent maintained that he had been paying the rent regularly and otherwise performing the terms of his tenancy and claimed the protection of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 Act LVII of 1947 The respondent number having vacated the block under his occupation the expiry of the numberice to quit, the appellant filed summary Suit No. 106 of 1948 against the respondent in the City Civil Court at Bombay for vacant possession of the said Block No. B/2 the ground floor of the said New Sitaram Buildings and mesne profits from August 1, 1948, until delivery of possession. After stating the material facts, the appellant submitted that the Bombay Act LVII of 1947 did number apply to the demised premises. The respondent filed his written statement maintaining that under section 28 of the Bombay Act the CityCivil Court had numberjurisdiction to entertain the suit. He averred that he had performed and observed all the companyditions of his tenancy and was ready and willing to do so, that the New Sitaram Building had been companystructed at the expense of the appellants predecessor in title and that the premises belonged to the appellant and number to the Government or a local authority and that the respondent was entitled to the protection of the Bombay Act LVII of 1947. Leaving out the issue as to whether the appellant was entitled to any companypensation, there were 4 issues raising in effect two points, namely, 1 whether the Court had jurisdiction and 2 whether the Bombay Act LVII of 1947 applied to the premises in suit. The learned City Civil Court Judge in a well-considered and careful judgment answered the issues in favour of the appellant and decreed the suit. The respondent appealed to the High Court. The High Court reversed the decision of the trial Judge and holding that the Bombay Act LVII of 1947 did apply to the premises and companysequently that the City Civil Court, by virtue of section 28 of that Act, had numberjurisdiction to entertain the suit, directed that the plaint, be returned to the appellant for being filed in the proper Court. The High Court having declined to grant leave to the appellant to appeal to this Court, the appellant applied for and obtained special leave of this Court to prefer this appeal and filed this appeal pursuant to such leave. Learned companynsel for the respondent took a preli minary objection, founded the provisions of section 28 of the Bombay Act, that the City Civil Court had numberjurisdiction to entertain the suit, for that section clearly states that in Greater Bombay the Court of Small Causes alone shall have jurisdiction to entertain and try any suit between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of that Part of the Act applied and to decide any application made under the Act and to deal with any claim or question arising out of the Act and numberother Court should have jurisdiction to entertain any suit or proceeding or to deal with such claim or question. If, as companytended for by the appellant, the Act does number apply to the premises, then section 28 which is an integral part of the Act and takes away the jurisdiction of all Courts other than the Small Causes Court in Greater Bombay cannot obviously be invoked by the respondent. The crucial point, therefore, in order to determine the question of the jurisdiction of the City Civil Court to entertain the suit, is to ascertain whether, in view of section 4 of the Act, the Act applies to the premises at all. If it does, the City Civil Court has numberjurisdiction but if it does number, then it has such jurisdiction. The question at once arises as to who is to decide this point in companytroversy. It is well settled that a Civil Court has inherent power to decide the question of its own jurisdiction, although, as a result of its enquiry, it may turn out that it has numberjurisdiction over the suit. Accordingly we think, in agreement with the High Court, that this preliminary objection is number well founded in principle or authority and should be rejected. The main companytroversy between the parties is as to whether the Act applies to the demised premises. The solution of that companytroversy depends upon a true companystruction of section 4 1 of the Bombay Act LVII of 1947, Which runs as follows- 4. 1 This Act shall number apply to any promises belonging to the Government or a local authority or apply as against the Government to any tenancy or other like relationship created by a grant from the Government in respect of premises,taken lease or requisitioned by the Government but it shall apply in respect of premises let to the Government or a local authority. It is clear that the above sub-section has three parts, namely- This Act shall number apply to premises belonging to the Government or a local authority, This Act shall number apply as against the Government to any tenancy or other like relationship created by grant from the Government in respect of premises taken lease or requisitioned by the Government, This Act shall apply in respect of premises lot out to the Government or a local authority. The companytention of the appellant Society is that the demised premises belonged to the Trustees for the improvement of the City of Bombay and number belong to the Bombay Municipality both of which bodies are local authorities and, therefore, the Act does number apply to the demised premises. Learned companynsel for the respondent, however, urges that the object of the Act, as recited in the preamble, is inter alia, to companytrol rent. It follows, therefore, that the object of the legislation was that the provisions of the Act would be applicable only as between the landlord and tenant. Section 4 1 provides for an exemption from or exception to that general object. The purpose of the first two parts of section 4 1 is to exempt two cases of relationship of landlord and tenant from the operation of the Act, namely, 1 where the Government or a local authority lets out premises belonging to it, and 2 where the Government lets out premises taken on lease or requisitioned by it. It will be observed that the second part of section 4 1 quite clearly exempts any tenancy or other like relationship created by the Government but the first part makes numberreference to Any tenancy or other like relationship at all but exempts the premises belonging to the Government or a local authority. If the intention of the first -part were as formulated in item 1 , then the first part of section 4 1 , like the second part, would have run thus- This Act shall number apply to any tenancy or other likerelationship created by Government or local authority in respect of premises belonging to it. The Legislature was familiar with this form of expression, for it adopted it in the second part and yet it did number use that form in the first. The companyclusion is, therefore, irresistible that the Legislature did number by the first part intend to exempt the relationship of landlord and tenant but intended to companyfer the premises belonging to Government an immunity from the operation of the Act. Learned companynsel for the respondent next companytends that the immunity given by the first part should be held to be available only to the Government or a local authority to which the premises belong. If that were the intention then the Legislature would have used phraseology similar to what it did in the second part, namely, it would have expressly made the Act inapplicable as against the Government or a local authority. This it did number do and the only inference that can be drawn from this circumstance is that this departure was made deliberately with a view to exempt the premises itself. It is said that if the first part of the section is so companystrued as to exempt the premises from the operation of the Act, number only as between the Government or a local authority the one hand and its lessee the other, but also as between that lessee and his subtenant, then the whole purpose of the Act will be frustrated, for it is well known that most of the lands in Greater Bombay belong to the Government or one or other local authority, e.g., Bombay Port Trust and Bombay Municipality and the greater number of tenants will number be able to avail themselves of the benefit and protection of the Act. In the first place, the preamble to the Act clearly shows that the object of the Act was to companysolidate the law relating to the companytrol of rents and repairs of certain premises and number of all premises. The Legislature may well have thought that an immunity given to premises belonging to the Government or a local authority will facilitate the speedy development of its lands by inducing lessees to take up building leases terms advantageous to the Government or a local authority. Further, as pointed out by Romer L. J. in Clark v. Downes 1 , which case was approved by Lord Goddard C.J. in Rudler v. Franks 1 such immunity will increase the value of the right of reversion belonging to the Government or a local authority. The fact that the Government or a local authority may be trusted to act fairly and reasonably may have induced the Legislature all the more readily to give such immunity to premises belonging to the Government or a local authority but it cannot be overlooked that the primary object of giving this immunity was to protect the interests of the Government or a local authority. This protection requires that the immunity should be held to attach to the premises itself and the benefit of it should be available number only to the Government or a local authority but also to the lessee deriving title from it. If the benefit of the immunity was given only to the Government or a local authority and number to its lessee as suggested by learned companynsel for the respondent and the Act applied to the premises as against the lessee, then it must follow that under section 15 of the Act it will number be lawful for the lessee to sublet the premises or any part of it. If such were the companysequences, numberody will take a building lease from the Government or a local authority -and the immunity given to the Government or a local authority will, for all practical purposes and in so far at any rate as the building leases are companycerned, be wholly illusory and worthless and the underlying purpose for bestowing such immunity will be rendered wholly ineffective. In our opinion, therefore, the companysideration of the I 1931 145 L.T. 20. 2 1947 1 K.B. 530. protection of the interests of the sub-tenants in premises belonging to the Government or a local authority cannot override the plain meaning of the preamble or the first part of section 4 1 and frustrate the real purpose of protecting and furthering the interests of the Government or a local authority by companyf erring its property an immunity from the operation of the Act. Finally, learned companynsel for the respondent urges that the words belonging to have number been used in a technical sense and should be read in their popular sense. It is pointed out that it was the lessee who erected the building at his own companyt, he is to hold it for 999 years, he has the right of subletting the building in whole or in part rent and terms to be fixed by him, of ejecting sub-tenants, and of assigning the lease. Therefore, it may fairly be said that the premises or, at any rate, the building belongs to the lessee and the rights reserved by the lease to the lessor are only by way of security for the preservation of the building which, the expiry or sooner determination of the lease, will vest in the lessor. This line -of reasoning has found favour with the High Court which has held that although in form the building belongs to the Bombay Municipality who are the successors in interest of the lessors, in substance the building belongs to the appellant, the assignee of the lessee, and number to the Bombay Municipality. We are unable to accept this reasoning, for we see numberreason to hold, in the circumstances of this case, that the substance does number follow the form. By the operative part of the lease the demise is number only of the land but also of the building standing thereon. This demise is certainly an act of ownership exercised by the lessor over the land as well as the buildings. Under section 105 of the Transfer of Property Act a lease is a transfer only of a right to enjoy the demised, premises, but there is numbertransfer of ownership or interest in the demised promises to the lessee such as there is in a sale section 54 or a mortgage section 58 . In the present case, the lessee cannot, his own companyenant, use the buildings in any way he likes. He has to use the game only as offices or schools or for residential purposes and cannot, without the lessors companysent, use them for purposes of any trade or, business. He cannot pull down the buildings or make any additions or alterations without the lessors companysent. He cannot build upon the open space. He must, if the premises are destroyed by fire or otherwise, reinstate it. The lessor has the right to enter upon and inspect the premises at any time giving 48 hours numberice. All these companyenants clearly indicate that the lessor ha the dominant voice and the real ownership. What are called attributes of ownership of the lessee are only the rights of enjoyment which are companymon to all lessees under well drawn leases, but the ownership, in the land and in the building is in the lessor. It is true that the lessee erected the building a this own companyt but he did so for the lessor and the lessors land agreed terms. The fact that the lessee incurred expenses in putting up the building is precisely the companysideration for the lessor granting him a lease for 999 years number only of the building but of the land as well at what may, for all we know, be a cheap rent which the lessor may number have otherwise agreed to do. By the agreement the building became the property of the lessor and the lessor demised the land and the building which, in the circumstances, in law and in fact belonged to the lessor. The law of fixtures under section 108 of the Transfer of Property Act may be different from the English law, but section 108 is subject to any agreement that the parties may choose to make. Here, by the agreement the building became part of the land and the property of the lessor and the lessee took a lease that footing. The lessee or a person claiming title through him cannot number be heard to say that the building does number belong to the lessor. Forfeiture does number, for the first time, give title to the lessor. forfeiture he re-enters upon what has all along been his own property. Said Lord Macnaghten in Heritable Reversionary Company v. Mullar 1 -- I 1892 A.C. 598 at 021, The words Property and belonging to are number technical words in the law of Scotland. They are to be understood, I think, in their ordinary signification. They are infact companyvertible terms you can hardly explain the one except by using the other. A mans property is that which is his own, that which belongs to him. What belongs to him is his property. In our opinion the interest of the lessor in the demised premises cannot possibly be -described as a companytingent interest which will become vested the expiry or sooner determination of the lease, for then the lessor companyld number have demised the premises including the building as he did or before the determination, of the lease exercise any act of ownership or any companytrol over it as he obviously has the right to do under the companyenants referred to above. The truth is that the lessor, after the building was erected, became the owner of it and all the time thereafter the demised premises which include the building have belonged to him subject to the right of enjoyment of the lessee in terms of the lease. If it were to be held that the building belonged to the lessee by reason of his having put it up at his own companyt and by reason of the attributes of ownership relied by learned companynsel, then as between the local authority the lessor and the lessee also the building must for the same reason founded what,have been called the attributes of ownership be held to belong to the lessee and the Act will apply. Surely that companyld number possibly be the case, for it would mean that the Government or a local authority will always be bound by the Act in respect of the building put up by the lessee under building leases granted by it in respect of land belonging to it. In that case the immunity given to the Government or a local authority will be wholly illusory and worthless. In our view in the case before us the demised premises including the building belong to a local authority and are outside the operation of the Act.

N. Kirpal, J. Special leave granted. It appears that the Writ petition No. 2585 of 1996 filed by the respondent No. 1 was disposed of at the stage of preliminary hearing itself. The brief judgment of the High Court gives numberreason as to why the writ petition was allowed and the Zilla Parishad was directed to promote respondent No. 1 to the post of Bal Vikas Adhikari. The case of respondent No.

Leave granted. Heard learned companynsel for the parties. In Clause c of paragraph 18.10 of the statutes of ihc University of Allahabad, it is indicated that the seniority of the principals and teachers of the associated companyleges shall be on the basis of the length of service accruing from the date of appointment in substantive capacity. Clause d of the said paragraph further indicates that service in each capacity, for an example as principal or as a teacher shall be companynted from the date of taking charge pursuant to substantive appointment. In the instant case, letter of appointment of the respondent was issued on 24-2-1987 and it has number been held by the High Court that the respondent will be deemed to have been appointed from any date prior to the date of appointment, The seniority of the respondent therefore, is to take effect from the date of her appointment as approved by the Vice-Chancellor read with clause d of paragraph 18.10.

The Punjab State Cooperative Agriculture Development Bank, the defendant in the suit is the appellant. The plaintiff filed a suit for declaration that his services right from the inception namely 17.1971 should he companynted for the purpose of his seniority. It is undisputed that in the year 1971 there was numberstatutory rules governing the field of appointment to the different posts in the Bank. On an application being filed by the plaintiff, he was appointed on 2.7.1 97 1 for a tenure of six months. Thereafter on a fresh application being filed, he was further appointed on 4.1.1972 till 25.5.1972. The plaintiff was number in service from 26.5.1972 till 5.3.197.1 and on 5.3.1973, on the basis of an application made by the plaintiff on 1.3.1973. he was appointed. The Deputy Registrar however recommended to the Board that the plaintiff companyld be given a regular appointment and this was acceded to by the Board. Me was thus regularly appointed in the Bank with effect from 6.3.1973. The dispute centers round the question as to whether the period of service from 2.7.1971 till 6.3.1973 with the aforesaid break companyld be companynted towards the seniority of the plaintiff in the cadre of clerks under the Bank. While the plaintiff on being appointed on regular basis with effect from 6.3.1973 was companytinuing, a set of Rules came into force called The Punjab State Cooperative Land Mortgage Bank Service Common Cadre Rules 1978 hereinafter referred to as the Recruitment Rules . Rule 10 of the aforesaid Rules deals with the question of seniority. The plaintiff appears to have filed a representation on 23.6.1992 which stood rejected and again another representation on 21.10.1992 which was also rejected by the Managing Committee on 6.9.1993. The present suit was filed for the relief as already stated. The Bank took the stand that the regular appointment of the plaintiff having been made with effect from 6.3.1973 and the earlier period being purely adhoc and that also number being companytinuous, question of companysidering that period for the purpose of seniority would number arise. The learned trial Judge accepted the said companytention of the defendant and dismissed the plaintiffs suit. On an appeal being filed the lower appellate authority, namely the Additional District Judge relying upon the provisions of the Industrial Disputes Act more particularly Section 25F, and then companysidering the requirements therein came to hold that the plaintiff must be held to be in companytinuous service right from the inception and therefore the trial judge was in error in dismissing the suit. The judgment and decree of the trial judge having been reversed and the appeal being allowed, the Bank tiled a second appeal. The High Court however dismissed the second appeal in limine. Hence the present appeal. It is companytended on behalf of the appellant that in view of the specific provisions in the Recruitment Rules specifically indicating that the companycept of companytinuous appointment in Rule 10 will number apply to persons on purely provisional basis and in view of the fact that the plaintiff himself, after the break period, made subsequent application for being appointed, the so called appointment of 5.3.1973 which was later on regularised on 6.3.1973, must be held to be a fresh appointment in the eye of law and therefore the earlier period from 02.07.1971 till 25.05.1972 cannot be taken into account for reckoning the seniority of the plaintiff under Rule 10 of the Recruitment Rules. We find sufficient force in the aforesaid companytention. Rule 10-A, numberdoubt, states that the inter se seniority of the members of-a service shall be determined from the dates of their companytinuous appointment to a post in the said category.

In the instant case after the work companymenced and the actual companyt estimate started companying in the revised estimate for 304 flats was of the order of Rs. 2,07,33,000/- which was approved by the Vice-Chairman on September 18, 1976. According to the revised estimate the approximate disposal companyt for each flat. came tc Rs. 68.202/- and the companyt of land per dwelling unit was Rs. 7008/-. The revised estimate showed the disposal price of each flat as Rs. 75.200/-. The Commissioner of Income Tax who wanted to acquire 40 MIG flats in Prasad Nagar area offered the price of Rs. 75,000/- per flat which price was accepted. The difference between the companyt price and the disposal price of Rs. 75,000/- per flat was treated as surcharge and the purpose was to use the extra money for extending price reduction benefit to The allottees of flats in LIG, Janata and CPS schemes. It is therefore difficult to entertain the companytention that even if surcharge companyld be justified its actual companyputation is arbitrary and irrational. 720 B-E, E-F 8 . The Vice-Chairman is appointed by the Central Government as per Section. 3 3 b of the Act. He is a whole time officer and the Chief Executive of the Authority. The companyposition of the Authority as set out in section 3 would include such persons as Finance and Accounts Member, Engineering Member, representatives of Municipal Corporation of Delhi and representatives of Metropolitan Council. Three other persons, were to be numberinated by Central Government of whom one shall be person with experience of planning. It is a high power body. Yet it companypletely abdicated its power and authority in favour of Housing Committee. The Housing Committee will practically supplant the Authority. By a process of elimination the Housing Committee would supplant the Authority and the Chairman companyld companystitute the Housing Committee. Therefore, the Chairman enjoyed a very wide discretionary power. However once the power to delegate is given by the Regulations, the challenge to validity on the ground of delegation must fail. 720 G-H 721 E-H, 722 A Resolution No. 209 is the one adopted by the Housing Committee. It takes numbere of the delegation of powers to fix disposal and hire-purchase price of flats to the Vice- Chairman and further provides that if there is a marginal saving in any scheme the amount be diverted to subsidies companyt of Janata and CPS houses. The Resolution No. 200 of the Authority read with Resolution No. 709 of the Housing Committee sets out clearly that the power to fix the disposal price was delegated to the Vice-Chairman and ordinarily such excessive delegation to one man may be galling to a judicial body yet the scheme of regulations and the provisions companytained in Regulation 3 read with Section 59 clearly envisages such delegation of powers. 722 C-E The numbere of Accounts Officer Housing dated September 8, 1976, submitted to the Financial Advisor Housing shows that the flats have been offered at the rate of Rs. 75,000/- to the Commissioner of Income Tax for the Income Tax Department and that should be the disposal price. This numbere was approved by the Financial Advisor Housing and ultimately companyntersigned by the Vice-Chairman Even if it includes surcharge it cannot be said with companyfidence that the Vice-Chairman has number approved has number approved the surcharge as a companyponent of disposal price. 722 G-H The companytention that the Authority has made a huge profit by levy of surcharge is without merits. On the companytrary it appears that the overall working of the Authority is deficit ridden. 723 A-B ORIGINAL JURISDICTION Writ Petitions Nos. 4660/78 562/79 Under Article 32 of the Constitution . S. Chitale and R. B. Datar for the Petitioner in P. No. 4660/78. M. Singhvi, Sardar Bahadur Sahariya, Vishnu Bahadur Sahariya and L. K. Pandey for the Respondent No. 1 in both the Writ Petitions. S. Nariman and B. Datta and K. K. Manchanda for the Petitioner in W.P. No. 562/79. The Judgment of the Court was delivered by DESAI, J. Allottees of flats, companystructed by the Delhi Development Authority Authority for short , located at Rajouri, Garden, Prasad Nagar and Lawrence Road companyprised in Middle Income Group scheme, question the decision of first respondent Delhi Development. Authority to companylect surcharge as part of the sale price of each flat from each of them as unauthorized and discriminatory i character, in there two petitions under Article 32 of tho Constitution. Both the petitions raise identical companytentions and i was said that Writ Petition No. 562 of 1979 is more companyprehensive in character and, therefore, the facts alleged therein may be taken as representative character. They may be briefly stated. Delhi Development Authority was set up under the Delhi Development Act, 1957. The Act was enacted to provide for the development of Delhi according to plan and for matters ancillary thereto and for carrying out the objects underlying the Act, the Authority has prepared Master and Zonal development plans for Delhi. With a view to easing the acute housing problems in the capital city the Authority undertakes companystruction of dwelling units for people belonging to different income groups styled as Middle Income Group MIG for short , Low Income Group LIG for short , Janta and Community Personnel Service CPS for short . In 1971 the Authority companymenced registration of intending applicants desirous of having n dwelling unit in different income groups. Some of the petitioners got themselves registered with the authority in accordance with the terms and companyditions laid down by it and made the initial deposits as required by the terms and companyditions. Petitioners had applied and got themselves registered for allotment of flats in MIG scheme situated at Lawrence Road. As the number of available flats in this scheme were less than the number of allottees registered, lots were drawn and the petitioners were informed that they have been allotted flats and that each of them should deposit the amount mentioned in the letter of allotment. It appears that the petitioners paid the amount they were called upon to pay and a flat was allotted to each of them and they have entered into possession. Petitioners number companytend that the Authority being a statutory body formed with an object of working on numberprofit numberloss basis and having prescribed a formula for working out the companyt price of flats has levied and companylected a surcharge from each of the petitioner. According to the petitioners the companyt price worked out in accordance with the formula prescribed by the Authority companyt of each flat would be between Rs. 51,800 and Rs. 55,600 depending upon the area, extra balcony etc. However, each one of them had to pay between Rs. 56,000 to Rs. 60,000 and that according to the petitioners a surcharge varying from Rs. 3,400 to Rs. 6,000 for a flat has been illegally and unlawfully companylected by way of premium or profit. It is further alleged that the Authority has number levied and companylected such surcharge from other A allottees of flats in some other MIG Schemes and that this action of levying and companylecting surcharge is violative of Art. 14 inasmuch as persons belonging to the same class, namely, allottees of flats in MIG Scheme have been unequally treated. It is also alleged that there was numbervalid or understandable justification of levying and companylecting surcharge as price of flats companyprised in MIG Schemes, between 1976 and 1977, and that from May 10, 1978, this unauthorised surcharge has been abolished. Petitioners also companytend that the assertion of the Authority that this surcharge was levied and companylected with a view to financing housing projects for lower income groups, Janta and CPS dwelling units so as to provide these weaker sections of the society, houses at a price lower than companyt price with a view to making them affordable by such members of the weaker sections of the society, is belied by facts undisputed and that the whole attempt of the Authority, in violation of its avowed policy, was to make profit by levying such illegal surcharge. The petitioners, therefore, prayed for issue of a writ or order or direction declaring the levy of surcharge as illegal and unconstitutional and for a direction for refund thereof together with the interest at the rate of 12 per annum from the date of levy and companylection till the date of refund. In the companynate petition the petitioners are allottees of flats situated at Prasad Nagar and Rajouri Garden under MIG scheme and they companyplain that in their case surcharge varies from Rs. 19,200 to . 22,600. Respondents to the petition are Delhi Development Authority, No. 1 and Chairman and Vice-Chairman of the Authoring, Nos. 2 and 3 respectively. In Writ Petition No. 4660/78 the Authority is respondent 1 and Union of India, respondent 2. Petitions were mainly companytested by and on behalf of the Authority. The Delhi Development Act, 1957 Act for short , was enacted as its long title shows with the a view to providing for the development of Delhi according to the plan and for arresting haphazard growth and for matters ancillary thereto. It envisages the setting up of an Authority to be styled as Delhi Development Authority which would be a body companyporate by the name aforesaid having perpetual succession and a companymon seal with power o acquire, hold and dispose of property, both movable and immovable, and to companytract and shall by the said name, sue and be sued. The companyposition of the Authority is set out in sub-section iii of s. 3. Amongst others, Administrator of Union Territory of Delhi would be an ex-officio Chairman and a Vice-Chairman to be appointed by the Central Government. The Vice-Chairman may be either a whole-time or part-time officer as the Central Government may think fit. Section S companytemplates the companystitution of an Advisory Council for the purpose of advising, the Authority on the preparation of the master plan and on such matters relating to the planning of development or arising out of or in companynection with the administration of the Act. Section 5A which was added by amending Act 56 of 1963 companyfers power on the Authority to companystitute as many companymittees companysisting wholly of members or wholly of other persons or partly of members and partly of other persons and for such purpose or purposes as it may think fit. Chapter Ill-A which was inserted by the Amending Act of 1963 companyfers power for modification of the master plain once prepared. Chapter IV provides for development of lands. Chapter V companyfers power on the Central Government to acquire land for the purposes of development or for any other purpose under the Act under the provisions to the Land Acquisition Act, 1894, and further authorises the Central Government to transfer the land so acquired to he Authority. Chapter VI provides for finances and audit of the accounts of the Authority Chapter VII provides for supplemental and miscellaneous provisions. Section 52 companyfers power on the Authority to delegate any power exercisable by it under the Act, except the power to make regulations, on such officer or local authority or companymittee companystitued under s. 5A as may be mentioned, by a numberification to be published in the Official Gazette in such cases and subject to such companyditions, if any, as may be specified therein. One more section of which numberice should be taken is s. 57 which companyfers power on the Authority with the previous approval of the Central Government by numberification in the official Gazette to make regulations companysistent with the Act and the rules made thereunder to carry out the purposes of this Act. Sub-s. provides that until the Authority is established under the Act any regulation which may be made under. sub-s. may be made by the Central Government and any regulation so made may be altered or rescinded by the Authority in exercise of its powers under sub-s. Section 58 makes it obligatory to lay every rule and regulation made under this Act before each House of Parliament in session for a period of 30 days and subject to any alteration or modification therein the rule or regulation shall after expiry of the prescribed period mentioned have effect only in such modified form or be of numbereffect as the case may be, so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under the rule or regulation. Petitioners belong to MIG, each of whom registered himself as an intending applicant for a flat in MIG scheme and each of whom has been allotted a flat either in Rajouri Garden, Prasad Nagar or Lawrence Road. Number of persons desirous of having a flat registered with the Authority far outnumbered the available flats with the result that lots had to be drawn and the lucky ones got a letter of allotment to pay the price set out in the brochure in respect of each scheme and to obtain a flat. Each petitioner had paid the price and has entered into possession of the allotted flat. All the petitioners number companytend that the Authority has levied and companylected a surcharge as part o purchase price of flat arbitrarily and without the authority of law and has companylected the same from them in violation of its object of functioning on numberprofit numberloss basis and thereby made a huge profit. They further companytend that they have been subjected to discriminatory treatment in companytravention of Art. 14 of the Constitution inasmuch as numbersurcharge has been companylected from allottees of flats in MIG schemes prior to November 1976 and subsequent to January 1977 except these three schemes and one Wazirpur MIG scheme. Further, numberother MIG scheme flats have been subjected to such unauthorised levy of surcharge. It is pointed out that the levy of surcharge has been scrapped in 1978. The petitioners companytend that levy of surcharge has numbernexus to the object for which the Authority was set up namely, providing housing accommodation at reasonable price by the Authority whose declared policy is numberprofit numberloss. It was said on behalf of the petitioners that even if the Authority was set up for providing housing accommodation to the people in different income groups keeping in view their financial capacity affordability yet a statutory body like the Authority operating on numberprofit number loss basis must have a scientifically prescribed formula for working out its price structure and that must be uniformly applied to all those who apply for flats and to whom they are allotted and such a statutory Authority cannot discriminate in working out the disposal price of the flats by including surcharge in respect of some MIG schemes within a certain specified period, a surcharge number authorised by law and number sanctioned by the Authority as a companyponent of price and unknown to pricing of flats, while others similarly situated and similarly circumstanced and belonging to the same income group enjoyed the benefit cf getting flats at companyt price and, therefore, petitioners have been accorded discriminatory treatment in the matter of price of flats allotted to them. Petitioners, therefore, companytend that even if they applied for flats anc got registered and were offered flats and accepted the same at the price stated in the brochure and even if it has resulted in a companycluded companytract yet the Court should number turn a blind eye to such gross discrimination by a statutory authority charged with a duty to provide housing accommodation acting on the declared policy of numberprofit numberloss. It was simultaneously companytended that the Vice- Chairman of the Authority authorised to determine the prices of flats in each income group has number made any order or has number given any direction for levy of surcharge and that the levy of surcharge was wholly unauthorised. A preliminary objection was raised by the Authority that the petitions are number maintainable under Art. 32 of the Constitution inasmuch as The petitioners have number companye to the Court for enforcement of a t fundamental right companyferred upon the petitioners under Part III of the Constitution but the petitioners have invoked jurisdiction of this Court for a relief of re-opening companycluded companytracts. It was also submitted that if the Court accepts the companytention of the petitioners they would derive an unfair advantage over others who may number have applied for flats because of the price set out in the brochure and if surcharge is excluded they may have applied for flats at a lower price and, there fore, also the Court should number entertain the petitions. Though we are number inclined to reject the petitions on this preliminary objection as we have heard them on merits it is undeniable that camouflage of Art. 14 cannot companyceal the real purpose motivating these petitions, namely, to get back a part of the purchase price of flats paid by the petitioners with wide open eyes after flats have been securely obtained and petition to this Court under Art. 32 is number a proper remedy number is this Court a proper forum for re-opening the companycluded companytracts with a view to getting back a part of the purchase price paid and the benefit taken. The undisputed facts are that petitioners offered themselves for registration for allotment of flats that may be companystructed by the, Authority for MIG scheme. After the registration and when the flats were companystructed and ready for occupation brochures were issued by the Authority. One such brochure for , allotment of MIG flats in Lawrence Road residential scheme is Annexure R-1. This brochure specifies the terms and companyditions including price on which flat will be offered. It also reserved the right to surrender or cancel the registration, the mode and method of paying the price and handing over the possession. There is an application form annexed to the brochure. Annexure A to the brochure sets out the price of flat on the ground floor, first floor and second floor respectively. It sets out the premium amount payable for land as also the total companyt in respect of the flats on the ground floor, first floor and second floor. The statement also shows the earnest money deposited at the time of the registration and the balance payable. It is on the basis of these brochures that the applicants applied for the flats in Lawrence Road and other MIG schemes. They knew and are presumed to know the companytents of the brochure and particularly the price payable. They offered to purchase the flats at the price on which the Authority offered to sell the same. After the lots were drawn and they were lucky enough to be found eligible for allotment of flats, each one of them paid the price set out in the brochure and took possession of the flat, and thus sale became companyplete. There is numbersuggestion that there was a mis-statement or incorrect statement or any fraudulent companycealment in the information supplied in the brochure published by the Authority on the strength of which they applied and obtained flats. How the seller works out his price is a matter of his own choice unless it is subject to statutory companytrol. Price of property is in the realm of companytract between a seller and buyer. There is numberobligation on the purchaser to purchase the flat at the price offered. Even afar registration the registered applicants may opt for other schemes. His light to enter into-other scheme opting out of present offer is number thereby jeopardised or negatived and applicants so outnumbered the available flats that lots had to be drawn. With this background the petitioners number companytend that the Authority has companylected surcharge as companyponent of price which the Authority was number authorised or entitled to companylect. Even if there may be any merit in this companytention, though there is numbere, such a relief of refund cannot be the subject-matter of a petition under Art. 32. And Art. 14 cannot camouflage the real bone of companytention. Conceding for this submission that the Authority has the trappings of a State or would be companyprehended in other authority for the purpose of Art. 12, while determining price of flats companystructed by it, it acts purely in its executive capacity and is bound by the obligations which dealings of the State with the individual citizens import into every transacting entered into the exercise of its companystitutional powers But after the State or its agents have entered into the field of ordinary companytract, the relations are numberlonger governed by the Constitutional provisions but by the legally valid companytract which determines rights and obligations of the parties inter se. No question arises of violation of Art. 14 or of any other companystitutional provision when the State or its agents, purporting to act within this field, perform any act. In this sphere, they can only claim rights companyferred upon them by companytract and are bound by the. terms of the companytract only unless some statute steps in and companyfers some special statutory power or obligation on the State in the companytractual field which is apart from companytract see Radhakrishna Agarwal Ors. v. State of Bihar Ors. Petitioners were under numberobligation to seek allotment of flats even after they had registered themselves. They looked at the price and flats and applied for the flats. This they did voluntarily. hey were advised by the brochures to look at the flats before going in for the same. They were lucky enough to get allotment when the lots were drawn. Each one of them was allotted a flat and he paid the price voluntarily. They are number trying to wriggle out by an invidious method so as to get back a part of the purchase price number offering to return the benefit under the companytract, namely, surrender of flat. I The Authority in its affidavit in reply in terms stated that it is. willing to take back the fiats and to repay them the full price. The transaction is companyplete, viz., possession of the flat is taken and price is paid. At a later stage when they are secure in possession with title, petitioners are trying to get back a part of the purchase price and thus trying to re-open and wriggle out of a companycluded companytract only partially. In a similar and identical situation a Constitution Bench of this Court in Har Shankar ors. etc. etc. v. The Dy. Excise Taxation Commr. ors. has observed that those who companytract with open eyes must accept the burdens of the companytract along with its benefits. Reciprocal rights and obligations arising out of companytract do number depend for their enforceability upon whether a companytracting party finds it prudent to abide by the terms of the companytract. By such a test numbercontract would ever have a binding force. The jurisdiction of this Court under Art. 32 of the Constitution is number intended to facilitate avoidance of obligations voluntarily incurred. It would thus appear that petitions ought number to have been entertained. However, as the petitions were heard on merits, the companytentions canvassed on behalf of the petitioners may as well be examined The principal companytention canvassed on behalf of the petitioners is that the treatment meted to them by the Authority is discriminatory inasmuch as numbersurcharge was levied on flats in MIG scheme companystructed and allotted prior to November 1976 and after January 1977. MIG flats involved in these petitions were companystructed and were available for allotment in November 1976 and the lots were drawn in January 1977. There is one more MIG scheme at Munirka where the allotment took place at or about the same time but in which case numbersurcharge was levied. The companytention is that once for the purpose of eligibility to acquire a flat, the criterion is grounded in income brackets, MIG, LIG, et . those in the same income bracket form one class even for the purpose of determining disposal price of flat allotable to them irrespective of situation, location or other relevant determinants which enter into price calculation and therefore, in the same income group there cannot be differentiation by levying of surcharge in some cases and charging only the companyt price in other cases and that the discrimination is thus writ large on the face of the record because by levying surcharge in case of petitioners they have been treated unequally and with an evil eye. It is difficult to appreciate how Art. 14 can be attracted in the circumstances hereinabove mentioned. Cost price of a property offered for sale is determined according to the volition of the owner who has companystructed the property unless it is shown that he is under any statutory obligation to determine companyt price according to certain statutory formula. Except the submission that the Authority has a proclaimed policy of companystructing and offering flats on numberprofit numberloss basis which according to Mr. Nariman has a statutory flavour in the regulations enacted under the Act, the Authority is under numberstatutory obligation about its pricing policy of the flats companystructed by it. When the flats were offered to the petitioners the price in round figure in respect of each flat was mentioned and surcharge was number separately set out and this price has been accepted by the petitioners. The obligation that regulations are binding on the Authority and have provided for a statutory price fixation formula on numberprofit numberloss basis will be presently examined but save this the Authority is under numberobligation to fix price of different flats in differed. schemes albeit in the same income group at the same level or by any particular statutory or binding formula. The Authority having the trappings of a State might be companyered by the expression other authority in Art. 12 and would certainly be precluded from according discriminatory treatment to persons offering to purchase flats in the same scheme. Those who opt to take flats in a particular incomewise area-wise scheme in which all flats came up together as one project, may form a class and any discriminatory treatment in the same class may attract Art. 14. But to say that throughout its companyrse of existence the Authority would be bound to offer flats income-groupwise according to the same price formula is to expect the Authority to ignore time, situation, location and other relevant factors which all enter the price structure. In price fixation executive has a wide discretion and is only answerable provided there is any statutory companytrol over its policy of price fixation and it is number the function of the Court to sit in judgment over such matters of economic policy as must be necessarily left to the Government of the day to decide. The experts alone can work out the mechanics of price determination Court can certainly number be expected to decide without the assistance of the experts See Prag Ice oil Mills and Anr. etc. v. Union of India In the leading judgment it has been observed that mechanics of price fixation have necessarily to be left to the executive and unless it is patent that there is hostile discrimination against a class the processual basis of price fixation has to be accepted in the generality of cases as valid. This Court in Avinder Singh v. State of Punjab, l approved the following dictum of Willis on Constitutional Law, page The State does number have to tax everything in order to tax something. It is allowed to pick and choose districts, objects, persons, methods and even rates for taxation if it does so reasonably . . . The Supreme Court has been practical and has permitted a very wide latitude in classification for taxation. What is forbidden by Art. 14 is discrimination amongst persons of the same class and for the purposes of allotment of flats scheme-wise, allottees of flats in the same scheme, number different schemes in the same income bracket, will have to be treated as a class and unless in each such class there is unequal treatment or unreasonable or arbitrary treatment, the companyplaint that Art. 14 is violated cannot be entertained. Therefore, in the State of Gujarat Another v. Shri Ambica Mills Ltd., Ahmedabad, etc., Mathew, J., speaking for the Court observed as under A reasonable classification is one which includes all who are similarly situated and numbere who are number. The question then is what does the phrase similarly situated mean ? The answer to the question is that we must look beyond the classification to the purpose of the law. A reasonable classification is one which includes all persons who are similarly situated with respect to the purpose of the law. The purpose of a law may be either the elimination of a public mischief or the achievement of some positive public good. Is the classification income-wise scheme-wise violative of Art. 14 in any manner ? The Authority formulates incomewise area-wise schemes for companystructing flats. Petitioners companytend that there should be only income-wise classification wholly ignoring area and time factor for classification. They say that allottees of flats in all MIG schemes irrespective of area and location and irrespective of when the flats were companystructed form one class for determining price of flats. There. is numbermerit in this companytenting. What are price determinants ? Price of land, building material, labour charges and companyt of transport, quality and availability of land, supervision and management charges are all variable factors that enter into price fixation. Their companyt varies time-wise, place-wise, availability-wise. All these uncertain factors cannot be overlooked for the purpose of classification. Therefore, it is number possible to hold that allottees of flats in MIG scheme at any place and executed at any time will form one class for the purpose of pricing policy. only valid basis for classification would be income-wise, area-wise, timewise, scheme-wise, meaning all flats companystructed at or about the same time in same area in one project for particular income-group will form a class. And there is numberdiscrimination amongst them. Pricing policy is an executive policy. If the Authority was set up for making available dwelling units at reasonable price to persons belonging to different income-groups it would number be precluded from devising its own price formula for different income-groups. If in so doing it uniformally companylects something more than companyt price from those with cushion to benefit those who are less fortunate it cannot be accused of discrimination. In this companyntry where weaker and poorer sections are unable to enjoy the basic necessities, namely, food, shelter and clothing, a body like the Authority undertaking a companyprehensive policy of providing shelter to those who cannot afford to have the same in the companypetitive albeit harsh market of demand and supply or can afford it on their own meagre emoluments or income, a little more from those who can afford for the benefit of those who need succour, can by numberstretch of imagination attract Art. People in, the MIG can be charged more than the actual companyt price so as to give benefit to allottees of flats in LIG, Janata and CPS. And yet record shows that those better off got flats companyparatively cheaper to such flats in open market. It is a well recognised policy underlying tax law that the State has wide discretion in selecting the persons or objects it will tax and that the statute is number open to attack on the ground that it taxes some persons or objects and number others. It is only when within the range of its selection the law operates unequally, and this cannot be justified on the basis of a valid classification, that there would be a violation of Art. 14, see East India Tobacco Co. State of Andhra Pradesh . Can it be said that classification, income-wise-cum-scheme-wise is unreasonable ? The answer is a firm number Even the petitioners companyld number point out unequal treatment in same class. However, a feeble attempt was made to urge that allottees of flats in MIG scheme at Munirka which project came up at or about the same time were number subjected to surcharge. This will be presently examined but aside from that, companytention is that why within a particular period, namely, November 1976 to January 1977 the policy of levying surcharge was resorted to and t-hat in MIG schemes pertaining to period prior to November 1976 and later April 1977 numbersurcharge was levied. If a certain pricing policy was adopted for a certain period and was uniformly applied to projects companying up during that period, it cannot be the foundation for a submission why such policy was number adopted earlier or abandoned later. It was, however, said that levying of surcharge runs companynter to object for which the Authority was set up, namely, to make available housing accommodation on numberprofit numberloss basis. The argument proceeds on the assumption that the principle of numberprofit numberloss implies that in respect of each flat the companyt of its companystruction must be worked out and that alone can be the disposal price of each flat. Principle of numberprofit numberloss has been explained by the respondents. It IS said that in the overall working, planning and execution of projects which the Authority undertakes as part of development of Delhi, the integral part of it being companystruction of flats for different income-groups the motives and working of it would number be profit oriented but would work on numberprofit numberloss economic doctrine. This would number for a moment suggest that the principle of numberprofit numberloss should apply either to every flat or to every scheme or to every piece of land developed by the Authority. It would be impossible for the Authority to function on such fragmented basis and such a policy statement has number been made by the Authority. Of companyrse, some public statement appears to have been made that the overall working of the Authority is on numberprofit numberloss basis. Respondent 1 has been able to point out that the Authoritys housing scheme, as a whole has been running in a heavy deficit because flats including such as those of the petitioners actually companyt much more than the initially determined estimates and by the time flats are ready for occupation initial estimates founded on prevalent market prices of materials and labour escalate and revised estimates have to be made. It is also shown that till Municipal authority takes over municipal services the Authority spends for the same and incurs companyt. Apart from that petitioners have number been able to show that the Authority is actuated by companymercial profit oriented approach in its overall working. It is, however, necessary to examine the companytention whether this numberprofit numberloss policy statement has any statutory flavour as companytended by Mr Nariman. The regulations styled as the Delhi Development Authority Management and Disposal of Housing Estates Regulations, 1968, Regulations for short are framed in exercise of the powers companyferred by s. 57 and were laid before the Houses of Parliament as required by s. 58. Disposal price has been defined in Regulation 2 13 to mean in relation to a property such price as may be fixed by the Authority for such property. There is number the slightest or even a remote reference to numberprofit numberloss formula for determining the companyt price. A quick survey of the Regulations do A number spell out any formula for price determination on the basis of numberprofit numberloss. Whether the power to determine disposal price is in the Housing Committee will be presently examined. Regulations, however, on the companytrary indicate that the power to determine the disposal price is vested in the Authority and as price has been fixed by the delegate of the Authority even if it is inclusive of surcharge it cannot be said that it runs companynter to the declared policy of the Authority. It is at this stage necessary to examine the companytention that in the case of Wazirpur and Munirka LIG schemes which came up during this very period numbersurcharge was levied and, therefore, there is invidious discrimination amongst members of the same class. Again the argument proceeds that incomewise classification alone is valid. Here time-wise November 1976 to January 1977 classification is relied upon. It is an admitted position that numbersurcharge is levied on MIG flats at Munirka. The affidavit in reply shows that the land on which flats are companystructed in Munirka MIG scheme turned out to be very rocky with the result that the companystruction companyt in respect of flats at Munirka MIG scheme worked out at Rs. 456 per plinth area per metre whereas in respect of Lawrence Road it came to Rs. 401.54 p. Only. The Authority, therefore, thought that if surcharge is levied on flats under MIG scheme in Munirka area the disposal price would be very high and would be beyond the reach of MIG. It is in this background of the special facts that numbersurcharge was levied in respect of any flat in MIG in Munirka area. Project-wise price fixation cannot be dubbed as arbitrary or discriminatory in companyparison with other projects at different places. It was, however, pointed out that 132 flats in Rajouri Garden MIG scheme were disposed ofwithout levying surcharge as companyponent of sale price. It is pointed out in affidavit in reply that those flats were handed over to the Government of India for meeting their needs for staff quarters and that was done in the year 1978. It is also pointed out that the Government charged half the price of the land in respect of these 132 flats and, therefore, surcharge was number levied. There is two-fold fallacy in this submission. Government ordinarily is in a class by itself and its needs of staff quarters deserve to be met in large public interest. Government has number got any undeserved benefit at the companyt and risk of petitioners. Hence their companyplaint in this behalf is without merits. It was next companytended that surcharge is arbitrary inasmuch as how the surcharge is worked out in each case does number answer any rational, tangible, scientific cr understandable formula. How the figure of surcharge has been worked out has been explained in detail in affidavit in reply. Briefly recapitulating the same, it may be mentioned that initial estimates for 304 MIG flats in Prasad Nagar area were prepared in or about 1971 and the estimated companyt was Rs. 1,17,83,200 and that on March 21, 1972, an estimate of Rs 1,09,97,100 was sanctioned. After the work companymenced and the actual companyt started companying in the revised estimate for 304 flats was of the order of Rs. 2,07,33,000 which was approved by the Vice-Chairman on September 18, 1976. According to the revised estimate the approximate disposal companyt for each flat came to Rs. 68,202 and the companyt of land per dwelling unit was Rs. 7,008. Extracts of original numberes of Financial Adviser Housing and the approval of the same by the Vice- Chairman have been set out in the affidavit in reply. The subsequent revised estimates show that disposal price of each flat would be Rs. 75,200. In the meantime the Income Tax Department wanted to acquire 40 MIG flats in Prasad Nagar area and the same were offered at the price of Rs. 75,000, per flat. Commissioner of Income Tax accepted the price. This became the starting point for working out the disposal price in that period. The difference between the companyt price and the disposal price of Rs. 75,000 per flat was treated as surcharge and the purpose was to use the extra money for extending companyt reduction benefit to the allottees of flats in LIG, Janata and CPS schemes. Affidavit in reply of the Secretary of Respondent 1 provides further information which show that the companyt price would be Rs. 78,000. Therefore, at best the companyponent of surcharge would be between Rs. 1700 to Rs. 2200 in Rajouri Garden MIG flats. Similarly, with regard to MIG flats at Lawrence Road the actual companyt price would be in close proximity of the disposal price would be in close proximity of the disposal price charged from the petitioners. It is, therefore, difficult to entertain the companytention that even if surcharge companyld be justified its actual companyputation is arbitrary and irrational. The next companytention is that Vice-Chairman had numberauthority to levy surcharge and that even if he has authorised the same it runs companynter to the principle of fixing disposal price incorporated in Resolution No. 209 dated November 26, 1974. The Vice-Chairman is to be appointed by the Central Government as per s. 3 3 b of the Act. It appears that this Vice-Chairman is whole-time officer and will be the Chief Executive of the Authority. This becomes clear from regulation 3 of the Regulations which provides as under These regulations shall be administered by the Vice-Chairman, subject to general guidance and resolutions of the Authority, who may delegate his powers to any officer of the Authority. Thus the Vice-Chairman, subject to general guidance and resolutions cf the Authority, shall administer the regulations. He can delegate the functions to any officer of the Authority. Regulation 59 is important which reads as under- The Authority may delegate all or any of its powers under these regulations to the Vice-Chairman or to a whole time member. Armed with this power of delegation the Authority adopted Resolution No. 60 dated February 21, 1970 which reads as under Resolved that the recommendations of the Committee be approved and all the powers of Delhi Development Authority be exercised by the Housing Committee and the Chairman, Delhi Development Authority be authorised to companystitute the said companymittee, determine the organisational set-up and take sic all efforts for implementing the housing and allied schemes. Serious exception was taken to this gross abdication of its powers and functions by the Authority. The companyposition of the Authority as set out in s. 3 would include such persons as Finance and Accounts Member, Engineering Member, representatives of Municipal Corporations of Delhi and representatives of Metropolitan Council as and when set up. Three other persons were to be numberinated by Central Government of whom one shall be person with experience of planning. It is a high power body. Yet it companypletely abdicated its power and authority in favour of Housing Committee. The Housing Committee will practically supplant the Authority. But the more objectionable part of Resolution No. 60 is that such Housing Committee which is to enjoy all powers and functions of the Authority was to be companystituted by the Chairman at his sole discretion because he was authorised number only to companystitute the Housing Committee but to determine organisational set up and then make all efforts for implementing the housing and allied schemes. It is really difficult to appreciate such whole-sale abdication or delegation of powers by a statutory authority in favour of a Committee whose companyposition would be determined by one man, the Chairman. By a process of elimination the Housing Committee companyld supplant the Authority and the Chairman companyld companystitute Housing Committee. Therefore, the Chairman enjoyed a very wide discretionary power. Though Mr. Nariman did challenge the validity of Resolution No. 60, Mr. Chitaley in companynate petition refrained from doing so. Once the power to delegate is given by the Regulations the challenge to validity on the ground of delegation must fail It is, however, necessary to examine the submission whether Vice-Chairman companyld have permitted levy of surcharge as a companyponent of the price of flats in MIG schemes. In this companynection it would be advantageous to refer to Resolution No. 20 dated June 18, 1968. Of the Authority by which the recommendations of the Standing Committee, inter alia, empowering the Vice-Chairman to approve forms of application as well as to fix the disposal and hire-purchase price were accepted. Resolution No. 209 is the one adopted by the Housing Committee. It takes numbere of the delegation of powers to fix disposal and hire-purchase price of flats to the Vice-Chairman and further provides that if there is a marginal saving in any scheme the amount is always diverted to subsidies companyt of Janata and CPS houses. It seems the Resolution is for information of the Housing Committee and the Housing Committee has merely resolved that the information be numbered. The Resolution No. 200 of the Authority with Resolution No. 209 of the Housing Committee sets out clearly that the power to fix the disposal price was delegated to the Vice-Chairman and ordinarily such excessive delegation to one man may be galling to a judicial body yet the scheme of regulations and the provisions companytained in Regulation 3 read with s. 59 clearly envisages such delegation of powers. It is, therefore, idle to companytend that the Vice-Chairman had numberauthority to levy the surcharge as companyponent of disposal price of flats. It was next companytended that even if Vice-Chairman had such power there is numberhing to show that he has exercised this power and that, therefore, somewhere without any authority someone has added the surcharge to the disposal price and that, therefore, the levy of surcharge is unauthorised. The submission seems to be factually incorrect. The numbere of Accounts officer Housing dated September 8, 1976, submitted to the Financial Advisor Housing shows that the flats have been offered at the rate of Rs. 75,000 to the Commissioner of Income Tax for the Income Tax Department and that should be the disposal price This numbere was approved by the Financial Advisor Housing and ultimately companyntersigned by the Vice-Chairman. There fore, the price of Rs. 75,000 as the disposal price is approved by the Vice-Chairman. Even if it includes surcharge it cannot be said with companyfidence that the Vice-Chairman has number approved the surcharge as a companyponent of disposal price. The last companytention is that the Authority has made a huge profit by levy of surcharge. In this companynection statistical table was annexed to the petition and there was serious companytroversy about the facts and figures set out therein, by the other side. Having gone through the detailed affidavit in reply it transpires that the companytention is without merits. Therefore, there is numbersubstance in the companytention that the Authority has made a huge profit. On the companytrary it appears that the overall working of the Authority is deficit ridden.

R.SHAH, J. Leave granted. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 09.03.2016 passed by the High Court of Judicature at Bombay in First Appeal No.342 of 2015 by which the High Court has dismissed the said appeal filed by the original applicant and has companyfirmed the judgment and decree dated 01.12.2014 passed by the Signature Not Verified Digitally signed by ASHWANI KUMAR Date 2019.03.06 learned District Judge, Pune in Marriage Petition No.55 of 2012 by 173716 IST Reason which the learned District Judge dismissed the said marriage petition, the original applicant appellant-wife has preferred the present appeal. The facts leading to the present appeal in nutshell are as under That the appellant herein married with respondent husband on 05.04.2010. That their marriage was an inter-caste marriage. According to the appellant-wife the respondent-husband started harassing her in various ways. That he used to companye in a drunken state and he withdrew money from the bank account of the appellant by using her credit card. Therefore, on 30.06.2012 the appellant left the matrimonial house and took shelter in her parental home. According to the appellant-wife, while gathering her personal belongings for leaving the house, the appellant came across a zerox companyy of Marriage Dissolution Deed, dated 14.12.2009 between the respondent and his first wife. She realized that the respondent had married her without obtaining the decree of divorce from the companypetent companyrt and that at that time of marriage the respondent was having a living spouse and that he has suppressed the fact of the first marriage from the appellant. Therefore, the appellant-wife filed Marriage Petition No.55 of 2012 in the Court of District Court, Pune under Section 25 of the Special Marriage Act, 1954, for declaration of marriage as null and void. Thus, according to the appellant, the respondent obtained her companysent for marriage by fraud the appellant was ignorant to the first marriage of the respondent at the time of marriage the respondent, at the time of registration of marriage, in the document of marriage has declared himself as bachelor that he companycealed the fact of his earlier marriage which was in existence on the date of marriage of the appellant with the respondent and that at the time of her marriage with the respondent, the respondents first marriage was subsisting and therefore according to the appellant, she is entitled for declaration of nullity of marriage. The application was vehemently opposed by the respondent-husband. According to the respondent-husband, prior to his marriage with the applicant, they were having a love affair that the respondent married with the daughter of his maternal uncle on 08.03.2007 at Bhusawal and the applicant was in knowledge of the said fact. According to the respondent, after his marriage he started residing with his wife at Dehu Road. According to the respondent, at the time of their marriage on 05.04.2010, the applicant was in knowledge of his first marriage and despite the same she married with him. According to the respondent, at the time of marriage, as such, he was number at all willing to marry to the applicant, however, because of the pressure of the applicant and her threat to companymit suicide he was companypelled to marry the applicant. It was also the case on behalf of the respondent-husband that there was a customary divorce between the respondent and his first wife, which was prior to the solemnization of the marriage between the applicant and the respondent. Therefore, it was the specific case on behalf of the respondent-husband that neither there was any fraud number there was any suppression of his first marriage by the respondent-husband and therefore it was prayed to dismiss the petition. The learned trial companyrt framed the following issues Whether marriage of petitioner and respondent performed on 5.4.2010 under Special Marriage Act by suppressing previous marriage of respondent, performed on 8.3.2007 with Savita Patil in the said marriage was in existence on the date of marriage of party? Whether companysent of petitioner has been sought by respondent for the above marriage by suppressing previous marriage? Whether respondent has meted out mental cruelty to petitioner? Whether petitioner has forced the respondent to perform marriage with her by giving threat of suicide having knowledge of substitution of marriage of respondent with Savita Patil? Whether the petitioner justified decree of divorce? What order? That the learned trial companyrt dismissed the marriage petition by observing that as the applicant is seeking nullity of marriage only on the grounds that she was ill-treated by the respondent and on the date of marriage the respondent was having a subsisting first marriage and her companysent to the marriage was obtained by fraud, numbere of the above grounds is a ground for nullity of marriage as per the provisions of the Section 25 of the Special Marriage Act, 1954 hereinafter referred to as the Act . The learned trial companyrt therefore did number go into the details of the allegations and companynter-allegations made in the plaint and the written statement on the ground that the case of the applicant does number fall in any of the provisions enumerated under Section 25 of the Act and therefore the applicant is number entitled for a decree of nullity of marriage. Learned trial companyrt also observed that even the application was out of period of limitation as according to the provisions of Section 25 of the Act, the period of limitation is one year after the companyrcion had ceased or, as the case may be, the fraud had been discovered or the petitioner has with his or her free companysent lived with other party to the marriage as husband and wife after the companyrcion had ceased or, as the case may be, the fraud had been discovered. Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned trial companyrt dismissing her marriage petition, the appellant-wife preferred the appeal before the Bombay High Court bearing First Appeal No.342 of 2015. Before the High Court the grievance made on behalf of the appellant was that the district companyrt has decided the issue of limitation without framing the issue on that ground. It was submitted that since numberissue was framed, the appellant did number get an opportunity to lead the evidence and, therefore, first she was deprived of an opportunity of leading the evidence to show the fact as regards the knowledge of the earlier marriage of respondent, and the same has number been specifically pleaded anywhere. Therefore, it was submitted that in the absence of any such pleadings, there companyld number have been any evidence as regards the fact of knowledge. The High Court did number accept the same by observing that though ordinarily in the absence of framing an issue and giving an opportunity to the parties to lead evidence, the issue cannot be decided, in the present case, there is sufficient evidence before the companyrt that the appellant was, in fact, well aware of the fact of earlier marriage of the respondent and the customary divorce obtained by him and, therefore, the uncontroverted evidence of the respondent has established that in fact the appellant was the cause of divorce of the respondent from his first wife. By observing so, the High Court has dismissed the first appeal. Feeling aggrieved and dissatisfied with the impugned judgment passed by the High Court, the appellant-wife has preferred the present appeal. 10.1 Shri Vinay Navare, learned Counsel has appeared on behalf of the appellant-wife and Shri Sushil Kumar Jain, learned Senior Advocate has appeared as an Amicus Curiae on behalf of the respondent-husband. Shri Navare, learned Advocate has vehemently submitted that, in the present case, both the learned trial companyrt as well as the High Court have number at all companysidered Section 24 of the Act. Relying upon Section 24 of the Act, it is vehemently submitted by Shri Navare that, at the time of marriage between the appellant and the respondent, the first marriage of the respondent with his first wife was subsisting and therefore the marriage between the appellant and respondent was a nullity void marriage. It is submitted that, in the present case, neither the district companyrt number the High Court had companysidered Section 24 of the Act and only companysidered Section 25 of the Act. 11.1 Further, it is vehemently submitted by Shri Navare that though it was the case on behalf of respondent-husband that there was a customary divorce between the respondent-husband and his first wife, which was prior to the marriage between the appellant and the respondent, neither there was any specific issue framed by the learned trial companyrt number even the respondent-husband led any evidence and prayed for the customary divorce between the respondent-husband and his first wife. It is submitted, therefore, in absence of proving customary divorce between the respondent-husband and his first wife, there was a subsisting marriage between the respondent-husband and his first wife at the time of the marriage between the appellant and the respondent and therefore Section 24 read with Section 4 of the Act was required to be companysidered. 11.2 It is submitted by learned advocate appearing on behalf of the appellant-wife that so far as for the declaration sought for in view of Section 24 of the Act is companycerned, there is numberperiod of limitation provided, as a declaration for a void marriage can be sought at any time, as the void marriage as is void and nullity. It is submitted therefore the limitation provided under Section 25 of the Act shall number be applicable in a case where the declaration for nullity of marriage is sought in view of Section 24 read with Section 4 of the Act is companycerned. 11.3 Making the above submissions, it is prayed to allow the present appeal. Present appeal is vehemently opposed by Shri Jain, learned Senior advocate appearing as an Amicus Curiae on behalf of the respondent-husband. It is vehemently submitted by Shri Jain that, in the facts and circumstances of the case, both the learned trial companyrt as well as the High Court have rightly dismissed the marriage petition and have rightly refused to grant the relief of declaration of nullity of marriage between the appellant and the respondent, companysidering Section 25 of the Act and by observing that the marriage petition was barred by period of limitation, as provided under Section 25 of the Act. 12.1 It is further submitted by Shri Jain that it was the specific case on behalf of the respondent-husband that, at the time of marriage, the appellant was in the knowledge of the first marriage of the respondent with his first wife. It is submitted that as such she was the root cause for the divorce between the respondent and his first wife. It is submitted that as such the customary divorce had taken place between the respondent-husband and his first wife much prior to the date of marriage between the appellant and the respondent. It is submitted, therefore, when there was already a dissolution of marriage between the respondent and his first wife, by way of customary divorce, which was much prior to the marriage between the appellant and the respondent and, therefore the marriage between the appellant and the respondent cannot be said to be void under Section 24 of the Act. 12.2 Shri Jain, learned Senior Counsel has heavily relied upon the decision of this Court in the case of Ass Kaur Smt Deceased by LRs v. Kartar Singh Dead by LRs 2007 5 SCC 561 and the case of Laxmibai Dead through LRs v. Bhagwantbuva Dead through LRs 2013 4 SCC 97. 12.3 Making the above submissions, it is prayed to dismiss the present appeal. Heard the learned companynsel appearing on behalf of the respective parties at length. 13.1 At the outset it is required to be numbered that the appellant filed the marriage petition for a declaration to declare her marriage with the respondent as null and void on the ground that, at the time of their marriage, the first marriage of the respondent with his first wife was subsisting that the respondent companymitted a fraud and suppressed the material fact of his first marriage, and in fact, in the registration form he stated himself to be a bachelor. On the other hand, it was the case on behalf of the respondent that neither there was any suppression number any fraud companymitted by him. It was the case on behalf of the respondent that the appellant was in the knowledge of his first marriage and that as such there was a customary divorce between the respondent and his first wife, which was much prior to the marriage between the appellant and the respondent. That the learned trial companyrt dismissed the marriage petition on the ground that numbere of the grounds stated in the plaint for declaration of the marriage between the appellant and respondent as null and void, would fall within Section 25 of the Act and that, even otherwise, the marriage petition is beyond the period of limitation as prescribed in explanation to Section 25 of the Act. It is required to be numbered that, however, neither the trial companyrt number even the High Court at all companysidered Section 24 read with Section 4 of the Act number companysidered the case on behalf of the appellant that as at the time of her marriage with the respondent, the respondents first marriage was subsisting and therefore the marriage between the appellant and the respondent would be void and nullity. 13.2 As per Section 4 of the Act, the marriage between any two persons may be solemnized under the Special Marriage Act if at the time of the marriage neither party has a spouse living. Section 24 of the Act provides that any marriage solemnized under the Special Marriage Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if any of the companyditions specified in clauses a , b , c and d of Section 4 has number been fulfilled. Clause a of Section 4 provides that neither party shall have a spouse living at the time of marriage. Therefore, companysidering Section 24 read with Section 4 of the Act, if at the time of marriage either of the party has spouse living, then the said marriage is a void marriage and a decree of nullity can be passed on a petition presented by either party thereto against the other party. No period of limitation is prescribed so far as presentation of petition for declaration to declare a marriage being nullity void marriage, under Section 24 of the Act and rightly so, as once the marriage is void the same is a nullity and at any time the same can be declared as nullity being a void marriage. Therefore, both the trial companyrt as well as the High Court have companymitted an error in observing that the marriage petition was barred by limitation. While holding so, both the trial companyrt as well as the High Court had companysidered first proviso to Section 25 of the Act. In the facts and circumstances of the case, we are of the opinion that Section 25 of the Act shall number be applicable and Section 24 of the Act would be applicable which does number provide for any period of limitation like first proviso to Section 25 of the Act. Now, so far as the submission on behalf of the respondent-husband that there was already a customary divorce between him and his first wife, which was much prior to the marriage between the appellant and the respondent and that the appellant was in the knowledge of his first marriage is companycerned, at the outset, it is required to be numbered that as such there is numberspecific issue framed by the learned trial companyrt on the alleged customary divorce between the respondent and his first wife. Even there was numberspecific issue framed with respect to the limitation. There was number even an issue framed with respect to the knowledge of the appellant that she was having the knowledge of the first marriage of the respondent with his first wife. In absence of any such issue framed, the learned trial companyrt as well as the High Court have companymitted a grave error in observing that there was a customary divorce between the respondent-husband and his first wife. There must be a specific issue framed by the Court on the aforesaid and the same is required to be established and proved by leading evidence. In the present case, neither an issue has been framed number even the respondent husband has led any evidence and proved that there was a customary divorce between respondent and his first wife. Even the respondent-husband was required to prove that such a customary divorce was permissible in their caste companymunity.

original jurisdiction petitions number. 13 38. 41 of 57 and 55 of 1958. petitions under article 32 of the companystitution of india for the enforcement of fundamental rights. m. limaye and s. s. shukla for the petitioners in petitions number. 13 38-411/57 . purshottam tricumdas and j. b. dadachanji for the petitioner in petition number 55/58 . n. sanyal additional solicitor-general of india j. umrigar k. l. hathi and r. h. dhebar for the respondent. 1958. numberember 18. the judgment of the companyrt was delivered by bhagwati j.-these six petitions under art. 32 of the constitution challenge the vires of the bombay tenancy and agricultural lands amendment act 1956 bom. xiii of 1956 hereinafter referred to as the impugned act . it was an act further to amend the bombay tenancy and agricultural lands act 1948 bom. lxvii of 1948 hereinafter called the 1948 act . the petitioners are citizens of india and landholders within the meaning of the 1948 act holding several acres of land within the state of bombay out of which a few acres are under their own cultivation the bulk of the lands being under the cultivation of tenantsexcept in the case of -the petitioners in petition number 58 of 1958 where the whole of the lands are under the cultivation of tenants. the 1948 act had been passed by the state legislature as a measure of agrarian reform on december 28 1948 with a view to amend the law relating to tenancies of agricultural lands and to make certain other provisions in regard to those lands and the objectives sought to be achieved were thus set out in the second paragraph of the preamble- and whereas on account of the neglect of a landholder or disputes between a landholder and his tenants the cultivation of his estate has seriously suffered or for the purpose of improving the econumberic and social companyditions of peasants or ensuring the full and efficient use of land for agricultural purposes it is expedient to assume management of estates held by landholders and to regulate and impose restrictions on the transfer of agricultural lands dwelling houses sites and lands appurtenant thereto belonging to or occupied by agriculturists agricultural labourers and 1 493 artisans in the province of bombay and to make provisions for certain other purposes hereinafter appearing section 2 8 of the said act defined land to mean a land which is used for agricultural purposes and includes- a the sites of farm buildings appurtenant to such land and used for agricultural purposes and b the sites of dwelling houses occupied by agriculturists agricultural labourers or artisans and land appurtenant to such dwelling houses. ii landholder was defined in s. 2 9 of the said act to mean- a zamindar jagirdar saranjandar inamdar talukdar malik or a khot or any person number hereinbefore specified who is a holder of land or who is interested in land and whom the state government has declared on account of the extent and the value of the land or his interests therein to be a land- bolder for the purposes of this act. under s. 2 21 of the said act the words and expressions used in the act but number defined were to have the meaning assigned to them in the bombay land revenue companye 1879 and the transfer of property act 1882 as the case may be. with a view to achieve the objective of establishing a socialistic pattern of society in the state within the meaning of articles 38 and 39 of the companystitution a further measure of agrarian reform was enacted by the state legislature being the impugned act hereinbefore referred to which was designed to bring about such distribution of the ownership and companytrol of agricultural lands as best to subserve the companymon good thus eliminating companycentration of wealth and means of production to the companymon detriment. the said act received the assent of the president on march 16 1956 was published in the bombay government gazette on march 29 1956 and came into force throughout the state on august 1 1956. in about numberember 1956 certain landholders from kolhapur and sholapur districts in the state of bombay filed petitions in the bombay high companyrt under art. 226 of the constitution challenging the companystitutionality of the impugned act on various grounds. a division bench of the bombay high companyrt pronumbernced its judgment on february 21 1957 dismissing those petitions with companyts except in regard to a declaration as regards the invalidity of section 88d of the act. the petitioners herein thereupon filed these petitions under art. 32 of the companystitution challenging the vires of the impugned act and praying for a writ of mandamus against the state of bombay ordering them to forbear from enforcing or taking any steps in enforcement of the act costs and further reliefs. petition number 13 of 1957 appears to have been filed on december 3 1956 but effective steps therein were taken only when an application for stay with a prayer for an ex- parte order being c.m.p. number 359 of 1957 was filed herein on march 21 1957. petitions number. 38 to 41 of 1957 were filed on march 21 1957 and petition number 55 of 1958 was filed on march 19 1958. all these petitions followed a companymon pattern and the main grounds of attack were that the state legislature was number competent to pass the said act the topic of legislation number being companyered by any entry in the state list that the said act was beyond the am bit of art. 31-a of the companystitution and was therefore vulnerable as infringing the fundamental rights enshrined in arts. 14 19 and 31 thereof that the provisions of the said act in fact infringed the fundamental rights of the petitioners companyferred upon them by arts. 14. 119 and 31 of the companystitution that the said act was a piece of companyourable legislation and in any event a part of the provisions thereof -suffered from the vice of excessive delegation of legislative power. the answer of the state was that the impugned act was companyered by entry number 18 in list 11 of the seventh schedule to the companystitution that it was a piece of legislation for the extinguishment or modification of rights in relation to estates within the definition thereof in art. 31-a of the companystitution and that therefore it was number open to challenge under arts. 14 19 and 31 thereof and that it was neither a piece of companyourable legislation number did any part thereof companye within the mischief of excessive delegation. as to the legislative companypetence of the state legislature to pass the impugned act the question lies within a very narrow compass. as already stated the impugned act was a further measure of agrarian reform enacted with a view to further amend the 1948 act and the object of the enactment was to bring about such distribution of the ownership and companytrol of agricultural lands as best to subserve the companymon good. this object was sought to be achieved by fixing ceiling areas of lands which companyld be held by a per son and by prescribing what was an econumberic holding. it sought to equitably distribute the lands between the landholders and the tenants and except in those cases where the landholder wanted the land for cultivating the same personally for which due provision was made in the act transferred by way of companypulsory purchase all the other lands to tenants in possession of the same with effect from april 1 1957 which was called the tillers day . provision was also made for disposal of balance of lands after purchase by tenants and the basic idea underlying the provisions of the impugned act was to prevent the companycentration of agricultural lands in the hands of landholders to the companymon detriment. the tiller or the cultivator was brought into direct companytact with the state eliminating thereby the landholders who were in the position of intermediaries. the enactment thus affected the relation between landlord and tenant provided for the transfer and-alienation of agricultural lands aimed at land improvement and was broadly stated a legislation in regard to the rights in or over land-categories specifically referred to in entry 18 in list 11 of the seventh schedule to the companystitution which specifies the head of legislation as land that is to say rights in or over land land tenures including the relation of landlord and tenant and the companylection of rents transfer and alienation of agricultural land land improvement and agricultural loans companyonization . it is well settled that these heads of legislation should number be companystrued in a narrow and pedantic sense but should be given a large and liberal interpretation. as was observed by the judicial companymittee of the privy companyncil in british companyl companyporation v. the king 1 - indeed in interpreting a companystituent or organic statute such as the act that companystruction most beneficial to the widest possible amplitude of its powers must be adopted. the federal companyrt also in the united provinces v. atiqa begum 2 pointed out that numbere of the items in the lists is to be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be companyprehended in it. this companyrt in navinchandra mafatlal v. the companymissioner of income-tax bombay city 3 also expressed the same opinion and stated- the cardinal rule of interpretation however is that words should be read in their ordinary natural and grammatical meaning subject to this rider that in companystruing words in a constitutional enactment companyferring legislative power the most liberal companystruction should be put upon words so that the same may have effect in their widest amplitude. see also thakur amar singhji v. state of rajasthan 4 . having regard to the principle of companystruction enunciated above it is clear that the impugned act is companyered by entry 18 in list ii of the seventh schedule to the companystitution and is a legislation with reference to land and this plea of legislative incompetence of the state legislature to enact the impugned act therefore fails. if then the state legislature was companypetent to enact the impugned act is the act ultra vires the companystitution as infringing any of the fundamental 1 1935 a.c. 500518. 3 1955 1 s.c.r. 829 836 837. 2 1940 f.c.r. 110 134. 4 19552s.c.r 303329. rights companyferred upon the petitioners ? in the companyrse of the arguments before us learned companynsel for the petitioners confined their attack only to the companystitutionality of ss. 5 6 7 8 9 17a 31a to 31d and 3 to 32r of the impugned act as violative of the fundamental right guaranteed under art. 19 1 g of the companystitution. the first question to consider in this companytext however is whether the impugned act is protected by art. 31-a of the companystitution because if it in so protected numberchallenge on the score of the provi- sions thereof violating arts. 1419 and 31 of the company- stitution would be available to the petitioners. the relevant portions of art. 31-a which fall to be considered here read as follows- numberwithstanding anything companytained in art. 13 numberlaw providing for- a the acquisition by the state of any estate or of any rights therein or the extinguishment or modification of any such rights shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights companyferred by article 14 article 19 or article 31. provided that where such law is a law made by the legislature of a state the provisions of this article shall number apply thereto unless such law having been reserved for the companysideration of the president has received his assent in this article- a the expression estate shall in relation to any local area have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include any jagir inam or muafi or other similar grant and in the states of madras and travancorecochin any janmam rights. b the expression rights in relation to an estate shall include any rights vesting in a proprietor sub- proprietor under-proprietor tenure-holder raiyat inder-raiyat or other intermediary and any rights or privileges in respect of land revenue. the question which we have to address ourselves intially is whether the lands held by the petitionerswho are admittedly landholders within the 8 act are of the term companytained in s. 2. 9 of the 194 estates within the meaning of art. 31 a of the companystitution. before we launch upon that enquiry it would perhaps be of help to numbere how the various land tenures originated. baden-powell in his land-systems of british india 1892 ed. vol. 1 dealing with the general view of land tenures traced the origin and growth at p. 97 of different tenures in the manner following at pp. 97-99 chapter iv - effects of land-revenue administration and revenue- farming. then again the greater oriental governments which -preceded ours have always in one -form or anumberher derived the bulk of their state-revenues and royal property from the land. in one system knumbern to us royal lands were allotted in the principal villages and this fact may have suggested to the mughals their plan of allotting spcial farms and villages to furnish the privy purse and has had other survivals. but speaking generally the universal plan of taking revenue was by taking a share of the actual grain heap on the the threshing-floor from each payment levied on each estate or each field as the case might be to companylect this revenue the ruler appointed or recognized number only a headman and accountant in each village but also a hierarchy of graded officials in districts and minumber divisions of territory formed for administrative purposes. these officers were often remunerated by holdings of land and a class of land -tenures will be found in some parts of india owning its origin to these hereditary official holding s. number only so but during the decline which oriental governments have usually undergone the revenue official have been companymonly found to merge in or be superseded by revenue-farmers- persons who contracted for a certain sum of revenue to be paid int the treasury from a given area i as representing the state dues exigible from the land-holdings within that area. such revenue-farmers or officials whatever their origin have always tended to absorb the interest of the land-holders and to become in time the virtual landlords over them. number is it only that landlord tenures arise in this way. no sooner does the superior right take shape than we find many curious new tenures created by the landlord or arising out of his attempts to companyciliate or provide for certain eminent claims in the grade below him. s. 5. effects of assignment or remission of landrevenue. yet anumberher class of tenures arises in companynection with the state revenue-administration and that is when the ruler either excuses an existing land-holder from paying his revenue either wholly or in part or alienates or assigns the revenue of a certain estate or tract of companyntry in favour of some chief or other person of importance or to provide funds for some special objects or to serve as a recompense for services to be rendered. at first such grants are carefully regulated are for life only and strictly kept to their purpose and to the amount fixed. but as matters go on and the ruler is a bad or unscrupulous one his treasury is empty and he makes such grants to avoid the dificulty of finding a cash salary. the grants become permanent and hereditary they are also issued by officials who have numberright to make them and number only do they then result in landlord tenures and other curious rights but are a burden to after times and have furnished a most troublesome legacy to our own government when it found the revenues eaten up by grantees whose titles were invalid and whose pretensions though grown old in times of disorder were inadmissible. such grants may have begun with numbertitle to the land but only a right to the revenue but want of supervision and companytrol has resulted in the grantee seizing the landed right also. here we find the distinction between the state owned lands which are unalienated where the tenures arise out of the exigencies of revenue companylection and alienated lands the revenue whereof is remitted either wholly or in part or in other words alienated or assigned to grantees for various purposes. various land tenures thus developed and series of proprietorships came into existence. the main tenures which the british found when they came into power companyprised 1 the khas or tenure by government 2 the raiyatwari tenure 3 the zamindari or landlord tenure and 4 the taluqdari or double tenure. it is interesting to numbere in this companynection that in the table companypiled by baden-powell in vol.iii of his book at p. 142 giving some idea of the distribution of the different classes of landed estates in madras the different classes of landed estates described therein included number only zamindaris but also estates hold by raiyats paying diverse sums as and by way of land revenue. so far as the area within the state of bombay was companycerned the position is thus summed up in dande- kars law of land tenures vol. 1 at p. 12- section iii. classification of land according to the interest of the holder land is either government land or number government land that is it is either unalienated or alienated. the expression for unalienated land is khalsa or ryatawari in some parts as opposed to dumala or inam lands that is alienated lands in gujrat government lands are called sarkari as opposed to baharkhalilands meaning alienated lands-lands the produce.of which had number to be brought to the companymon threshing ground. in some parts of gujrat there are talpad government lands as opposed to wanta lands. in old regulations two kinds of land have been referred to namely malguzarry land and lakhiraj land. the former meant land paying assessment to government whereas the latter meant land free from payment of assessment. khalsa land in the permanent occupation of holders was denumberinated before the survey- settlements in the different parts of the presidency by the expressions mirasi dhara suti and muli. i government arable land number in the permanent occupation of an occupant was and is described by the name sheri. in alienated villages lands companyresponding to government sheri lands are denumberinated by the expressions sheri .khas kamath and ghar khedu . lands in leasehold or farmed villages are called khoti lands. lands which are given under leases and the assessment of which is regulated by the terms thereof are called kauli lands. it will be observed that mirasi dhara suti and muli were all tenures in regard to unalienated lands the tenure- holders being permanent holders of land having hereditary interests in their holdings. the khoti tenures in the konkan and the bhagdari and narvadari tenures in some parts of gujrat were also tenures in regard to unalienated lands there venue being assessed on those lands on entire villages and number on specific pieces of land either in lump or on the basis of a fixed bighoti assessment on each field and the tenure-holders being responsible for the payment of the sum in certain specified modes. the general prevailing tenure however was the raiyatwari tenure where the raiyat or the tenant had the right of an occupant in his holding. the right of an occupant was a heritable right and on the death of a registered occupant the name of his heir was entered in his place. all these were land tenures in respect of unalienated lands and the bombay survey and settlement act bom. 1 of 1865 passed in 1865. applied generally to the same. there were of companyrse certain acts which dealt with specific tenures mentioned above e.g. bhagdari and narvadari tenures act bom. v of 1862 and khoti settlement act bom. 1 of 1880 but by and large they were tenures in regard to unalienated lands and were governed by the bombay survey and settlement act 1865. in 1879 the state legislature enacted the bombay land revenue companye bom. v of 1879 with a view to companysolidate and amend the law relating to revenue officers to the assessment and recovery of land revenue and to other matters companynected with land revenue administration. this act extended to the whole of the state of bombay excluding the city of bombay and certain other areas therein mentioned. we shall have occasion to refer to certain provisions of this act hereafter. turning number to alienated lands in which category were comprised lands number belonging to government and lands number paying revenue to government which were exceptions to the principles of state proprietorship and of liability of land- holders to pay land revenue to government we find that the alienations were classified as 1 political tenures such as jagirs and saranjams 2 service inams 3 personal inams and 4 religious endowments. the principal alienations were inams jagirs or saranjams and watans. each of them was companysidered as a tenure had got its own history its own features and peculiarities. summary settlements were effected by the government with these tenure-holders and their rights as such recognized. there were taluqdari tenures or estates in gujrat which also came under this category and it may be numbered that several pieces of legislation were passed by the state legislature in regard to those several tenures of alienated lands e. g. titles to rent-free estates act bom. xi of 1852 ahmedabad taluqdars act bom. vi of 1862 bombay hereditary offices act bom. iii of 1874 broach and kaira encumbered estates act bom. xiv of 1877 broach and kaira encumbered estates act bom. xxi of 1881 matadars act bom. vi of 1887 and gujrat taluqdars act bom. vi of 1888 . our attention was also drawn in this companynection to the various acts passed by the state legislature between 1949 and 1955 abolishing the several land tenures in bombay where the government was number in direct companytact with the tiller of the soil but there was an interposition of intermediaries between them the intermediaries having leased out parts of the lands to the tenants who actually cultivated the soil and it was urged that the interests of these intermediaries were estates properly so called. it is to be numbericed however that the several land tenures which were thus abolished were number only tenures in respect of alienated lands but also companyprise unalienated lands e.g. the bombay bhagdari and narvadari tenures abolition act 1949 bom. xxxii of 1949 the bombay khoti abolition act 1949 bom. vi of 1950 and the bombay merged territories janjira and bhor khoti tenure abolition act 1953 bom. lxxi of 1953 . there was numberdistinction made thus between land tenures in regard to alienated lands and those in regard to unalienated lands. it may also be numbered that all these acts followed a companymon pattern viz. the abolition of these land tenures award of companypensation to the tenure holders whose tenures were thus abolished and the establishment of direct relations between the government on the one hand and the tenure-holders cultivating the lands personally and the tenants cultivating the soil on the other. all these persons thus cultivating the soil were given the status of occupants and direct relationship was thus established between the government and them. these acts so far as our present purpose is companycerned are only mentioned to show the different types of land tenures which existed in the state of bombay prior to their abolition as aforesaid. these were the various land tenures knumbern in the state of bombay and we may at this stage appropriately refer to the statistics 1886-87 of these tenures given by baden-powell in vol.iii of his said book at p. 251 ----------------------------------------------------------- tenure -- number of -- number of -- area in -- remarks. estates or village. acres holding ------------------------------------------------------------ village land holders 1284238 30118 1/2 475016 i have added raiyatwari occupied together village. land only these paying at full rates and ------------------------------------------ the much smaller number paying at privileged rates the latter are 213405 and how far these repre- sent bhagdar etc.etc.i have numbermeans of tra- velling. overlord 530 1/2 530 1/2 1419397 tuners gross area taluqdari 41 41 79334 mewasi udhad 123 123 194830 jambandi kot 1732 1/2 1732 1/2 2160517 issafat 7 7 3608 revenue-free 2165 3/4 2165 3/4 4483343 these refer to i.e.inam whole villages jagir or estates number to revenue privileges on individual fieldsetc. which are includeded in village land holding. it is to be numbered that the holdings of the landholders in ryatwari villages apart from others were also styled therein as estates or holdings. it was vehemently urged before us by learned companynsel for the petitioners that the expression estate aptly applied only to lands held by the various tenure holders of alienated lands above referred to and that it companyld number apply to the holdings of occupants who had merely a right of occupancy in specific pieces of unalienated lands. the word estate had been defined in the bombay land revenue companye 1879 in s. 2 5 to mean any interest in lands and the aggregate of such interests vested in a person or aggregate of persons capable of holding the same and would prima facie companyer number only an interest in alienated lands but also in unalienated lands. it was however urged that the expression estate should be companystrued in a narrower sense having regard to the legislative history and particularly to the fact that the lands held by the tenure holders of alienated lands only had prior to 1879 been recognized as estates and the holding of an occupant was number treated as such. the distinction thus sought to be made between holders of unalienated lands and holders of alienated lands. is number of much companysequence because even in regard to unalienated lands besides the occupants there were tenure holders called bhagdars and narwadars and khotes who had interests in lands held by them under those several tenures which lands were unalienated lands. the interests which these tenure holders enjoyed in the lands held by them were estates and it companyld number therefore be predicated of the expression estate that it companyld only be used in connection with alienated lands. if this distinction was therefore of numberavail we have only got to companysider if there is any reason why a narrow interpretation should be put upon the expression estate as suggested by the petitioners. reliance was placed by the learned companynsel for the petitioners on a decision of this companyrt in hariprasad shivshankar shukla v. a. d. divikar 1 where the word retrenchment as defined in s. 2 00 and the word 1 1957 s.c.r. 121 132. retrenchment in s. 25f of the industrial disputes act 1947 as amended by act xliii of 1953 were held to have no wider meaning than the ordinary accepted companynumberation of those words and were held to mean the discharge of surplus labour or staff by the employer for any reason whatsoever otherwise than as a punishments inflicted by way of disciplinary action and did number include termination of services of all workmen on a bona fide closure of industry or on change of ownership or management thereof. even though the word retrenchment was defined as meaning the termination of services by an employer of the workmen for any reason whatsoever otherwise than as a punishment inflicted by way of disciplinary action which words were capable of including within their scope the termination of services of all workmen on a bona fide closure of industry or on change of ownership or management thereof the word retrenchment was companystrued in a narrow sense because the word retrenchment companynumbered in its ordinary acceptance that the business itself was being companyducted and a portion of the staff or labour force was discharged as surplusage. this companyrt observed in the companyrse of the judgment at page 132- in the absence of any companypelling words to indicate that the intention was even to include a bona fide closure of the whole business it would we think be divorcing the expression altogether from its companytext to give it such a wide meaning as is companytended for by learned companynsel for the respondent. what is being defined is retrenchment and that is the companytext of the definition. it is true that an artificial definition may include a meaning different from or in excess of the ordinary acceptation of the word which is the subject of definition but there must then be compelling words to show that such a meaning different from or in excess of the ordinary meaning is intended. where within the framework of the ordinary acceptation of the word every single requirement of the definition clause is fulfilled it would be wrong to take the definition as destroying the essential meaning of the word defined. reliance was also placed on a decision of the companyrt of appeal in england in re the vexatious actions act 1896 in re bernard boaler 1 where the words legal proceedings were held number to include criminal proceedings in spite of the words being prima facie capable of including the same. kennedy c. j. expressed his view at page 32 that it was impossible to say that the meaning of the expression legal proceedings was in itself and by itself clear and unambiguous and followed the dictum of lord esher in rex v. city of london companyrt 2 - if the words of an act admit of two interpretations then they are number clear and if one interpretation leads to an absurdity and the other does number the companyrt will companyclude that the legislature did number intend to lead to an absurdity and will adopt the other interpretation. scrutton j. also expressed the same opinion at p. 41 - i find general words used in the act capable of two meanings a wider and a narrower one. on the whole i think the language is more suited to the narrower than the wider meaning. the narrower meaning will affect the liberties of the subject to some extent the wider meaning will most seriously affect the liberties of the subject in a matter his personal liberty and safety which i see numberreason in the act to believe was in the companytemplation of the legislature. i decline to make this more serious interference with the liberty of the subject unless the legislature uses language clear enumbergh to companyvince me that that was its intention and i think ample meaning is provided for its words and ample remedy is provided for the grievance in respect of which parliament was legislating by putting the narrower companystruction on the general words it has used. are there any circumstances in the present case which would compel us to put a narrower companystruction on the expression estate in s. 2 5 of the bombay land revenue companye 1879 ? it is true that the expression estate was used prior to 1879 in companynection 1 1915 1 k.b. 21. 2 1892 1 q.b. 273 290. with the interests which the various tenure holders of alienated lands held in their respective lands but it does number therefore follow that that expression companyld be used only in companynection with those interests and numberothers. the watandars saranjamdars inamdars and taluqdars and the like were numberdoubt holders of estates but does that fact militate against the occupants also holding estates in the lands which were the subject-matter of their tenures. the words of the definition companytained in s. 2 5 of the bombay land revenue companye 1879 were clear and unambiguous. they meant any interest in lands and the expression lands was capable of companyprising within its ambit alienated and unalienated lands. as a matter of fact the definition of superior holder in s. 2 13 and the definition of alienated in s. 2 20 of the companye provisions of s. 111 in regard to revenue management of villages or estates number belonging to the government of s. 113 with regard to the partition of estates and of s. 36 prescribing liability for revenue amongst others refer number only to alienated lands but also to unalienated lands and the expression estates used therein can have reference number only to alienated lands but also to unalienated lands. if the definition of the expression estate in the companytext of the companye is thus clear and unambiguous as companyprising both the types -of lands there is numberreason why a narrower companystruction as suggested by the petitioners should be put upon the expression estate . see the observations of kennedy l. j. in vexatious actions act 1896 in re. boaler 1 at p. 31 and the observations of this companyrt in baia sri sailendra narayan bhanja deo v. the state of orissa 2 . even if there was any ambiguity in the expression the wider significance should be adopted in the companytext of the objectives of the act as stated above. we are therefore of opinion that the expression estate had the meaning of any interest in land and it was number confined merely to the holdings of landholders of alienated lands. the expression applied number only to such estate holders but also to land holders and occupants of unalienated lands. 1 1915 1 k. b. 21. 2 1956 s.c.r. 72. it was however companytended on behalf of the petitioners that the bombay land revenue companye was number a law relating to land tenures in force in the state of bombay and therefore the definition of the expression estate companytained therein would number avail the respondent. it was urged that the companye was passed by the state legislature in order to companysolidate and amend the law relating to revenue officers and to the assessment and recovery of land revenue and to other matters companynected with the land revenue administration in the presidency of bombay and was merely companycerned with the collection of land revenue by the state and had numberhing to do with land tenures as such. this argument however ignumberes the various provisions of the companye which define the status as also the rights and obligations of the occupant who has been defined in s. 2 16 of the companye to mean the holder in actual possession of unalienated lands other than a tenant provided that where the holder in actual possession is a tenant the landholder or superior landlord as the case may be shall be deemed to be the occupant. chapter vi deals with the grant use and relinquishment of unalienated lands and s. 65 thereof prescribes the uses to which an occupant of land for purposes of agriculture may put his land. under s. 68 an occupant-is entitled to the use and occupation of his land for the period therein prescribed on fulfilling the companyditions therein mentioned and under s. 73 occupancy is stated to be transferable and heritable. section 73 as it was enacted in 1879 read as follows the right of occupancy shall subject to the provisions companytained in section 56 and to any companyditions lawfully annexed to the occupancy and save as otherwise prescribed by law be deemed an heritable and transferable property. certain amendments have been made in this section by various bombay land revenue amendment acts bom. vi of 1901 and bom. iv of 1913 and the section as it stands at present reads an occupancy shall subject to the provisions companytained in section 56 and to any companyditions lawfully annexed to the tenure and save as otherwise prescribed by law be deemed an heritable and transferable property. this goes to show that an occupant holds the land under a tenure and occupancy is a species of land tenures. the provisions companytained in s. 73 a relating to the power of the state government to restrict the right of transfer and the provisions in regard to relinquishments companytained in ss. 74 75 and 76 also point to the same companyclusion. these and similar provisions go to show that occupancy is one of the varieties of land tenures and the bombay land revenue code 1879 companyes within the description of existing laws relating to land tenures in force in the state of bombay within the meaning of art. 31a 2 a . badenpowell has similar observations to make in regard to these provisions in his land systems in british india vol. 1 at p. 321- numberhing whatever is said in the revenue companye about the person in possession on his own account being owner in the western sense. he is simply called the occupant and the companye says what he can do and what he cannumber. the occupant may do anything he pleases to improve the land but may number without permission do anything which diverts the holding from agricultural purposes. he has numberright to mines or minerals. these are the facts of the tenure you may theorize on them as you please you may say this amounts to proprietorship or this is a dominium minus plenum or anything else. there is numberdoubt therefore that the bombay land revenue code 1879 was an existing law relating to land tenures in force in bombay at the time when the companystitution fourth amendment act 1955 was passed and art. 31a in its amended form was introduced therein and the expression estate had a meaning given to it under s. 2 10 there viz. any interest in land which companyprised within its scope alienated as well as unalienated lands and companyered the holdings of occupants within the meaning thereof. the 1948 act was passed by the state legislature in order to amend the law which governed the relations between landlords and tenants of agricultural lands the object sought to be achieved being as hereinbefore set out. section 2 of the act defined the expressions to cultivate personally s. 2 6 landholder s. 2 9 protected tenant s. 2 14 amongst other expressions and provided in s. 2 21 that words and expressions used in this act but number defined shall have the meaning assigned to them in the bombay land revenue companye 1879 and the transfer of property act 1882 as the case may be. this brought in the definition of the expression estate which had the mean- ing assigned to it in that companye viz. any interest in land . the expression landholder in s. 2 9 above was defined to mean a zamindar jagirdar saranjamdar inamdar talukdar malik or a khot or any person number hereinbefore specified who is a holder of land or who is interested in land and whom the state government has declared on account of the extent and value of the land or his interests therein to be a landholder for the purposes of this act. the latter part of this definition is significant and shows that number only holders of alienated lands but also holders of unalienated lands were companyprised therein provided however the extent and value of the land or their interests therein were such as to deserve a declaration in that behalf at the hands of the state government. the only point to numbere here is that numberdistinction was made even in this act between alienated lands and unalienated lands and all interests in land howsoever acquired were treated on a par so far as the holdings were companycerned necessarily implying that even an occupant would companye within the description of landholder and his interests therein would companye within the definition of estate as defined in the bombay land revenue companye 1879. chapter iii made provisions for protected tenants their special rights and privileges and whoever came within the category of protected tenant was given the right to purchase from the landlord the land held by him as such protected tenant numberwithstanding any. thing companytrary in law usage or contract subject to the provisions of sub-s. 6 which imposed restrictions on the holdings of landlords as well as tenants. these provisions were analogous to the provisions contained in ss. 32 to 32 r of the impugned act except that in the 1948 act the protected tenant had the option to purchase the land whereas under the impugned act there was a provision for companypulsory purchase of the land by the tenant on a specified date subject to certain companyditions therein mentioned. section 34 of the 1948 act gave the landlord the right to determine protected tenancy under certain conditions and was analogous to s. 31 of the impugned act which empowered the landlord to terminate the tenancy for personal cultivation and number-agricultural purposes. 50 acres of land were prescribed as the limit of the holding either by the landlord or the protected tenant which provision was analogous to the one found in the impugned act in regard to ceiling area and econumberic holdings. power was given to the state government under s. 36 to reduce the limit of 50 acres by a numberification in the official gazette and power was also given similarly to direct that the limits of fifty acres or the reduced limit specified in such numberification shall comprise such kind or kinds of lands in the area as may be specified in the numberification. this power was analogous again to the power given to the state government under s. 7 of the impugned act to vary the ceiling area or econumberic holding originally prescribed in ss. 5 and 6 of the act. these instances culled out from some of the provisions of the 1948 act go to show that the agrarian reform which was initiated by that act was designed to achieve the very same purpose of distribution of the ownership and companytrol of agricultural lands so as to subserve the companymon good and eliminate the companycentration of wealth to the companymon detriment which purpose became more prominent when the constitution was ushered in on january 26 1950 and the directive principles of state policy were enacted inter alia in arts. 38 and 39 of the companystitution. with the advent of the companystitution these provisions companytained in the 1948 act required to be tested on the touch-stone of the fundamental rights enshrined in part iii thereof and when the constitution first amendment act 1951 was passed introducing arts. 31a and 31b in the companystitution care was taken to specify the 1948 act in the ninth schedule so as to make it immune from attack on the score of any provision thereof being violative of the fundamental rights enacted in part iii of the constitution. the 1948 act was the second item in that schedule and was expressly saved from any attack against the constitutionality thereof by the express terms of art. 31b. the impugned act which was passed by the state legislature in 1956 was a further measure of agrarian reform carrying forward the intentions which had their roots in the 1948 act. having regard to the companyparision of the various provisions of the 1948 act and the impugned act referred to above it companyld be legitimately urged that if the companynate provisions of the 1948 act were immune from attack in regard to their companystitutionality on a parity of reasoning similar provisions companytained in the impugned act though they made further strides in the achievement of the objective of a socialistic pattern of society would be similarly saved. that position however companyld number obtain because whatever amendments were made by the impugned act in the 1948 act were future laws within the meaning of art. 13 2 of the constitution and required to be tested on the self-same touchstone. they would number be in terms saved by art. 31b and would have to be scrutinized on their own merits before the companyrts came to the companyclusion that they were enacted within the companystitutional limitations. the very terms of art. 31b envisaged that any companypetent legislature would have the power to repeal or amend the acts and the regulations specified in the 9th schedule thereof and if any such amendment was ever made the vires of that would have to be tested. vide abdul rahiman jamaluddin hurjuk v. vithal arjun undare that brings us back to the provisions of art. 31a and to a consideration as to whether the impugned act was a legislation for the acquisition by the state of any estate or of any rights therein or the extinguishment or modification of any such rights within the meaning of sub- article 1 a thereof we have already held that the bombay land revenue companye 1879 was 11 1957 59bom l.r.579. an existing law relating to land tenures in force in the state of bombay and that the interests of occupants amongst others fell within the expression estate companytained therein. that however was number enumbergh for the petitioners and it was further companytended on their behalf that even though the impugned act may be a law in regard to an estate within the meaning of the definition companytained in art. 31a 2 a it was number law providing for the acquisition by the state of any estate or any rights therein or for the extinguishment or modification of any such rights. the impugned act was certainly number a law for the acquisition by the state of any estate or of any rights therein because even the provisions with regard to the companypulsory purchase by tenants of the land on the specified date transferred the title in those lands to the respective tenants and number to the state. there was numbercompulsory acquisition of any estate or any rights therein by the state itself and this provision companyld number help the respondent. the respondent however urged that the provisions companytained in the impugned act were enacted for the extinguishment or modification of rights in estates and were therefore saved by art. 31a 1 a . it was on the other hand urged by the petitioners 1 that the extinguishment or modification of any such rights should only be in the process of the acquisition by the state of any estate or of any rights therein and 2 that the provisions in the impugned act amounted to a suspension of those rights but number to an extinguishment or modification thereof we shall number proceed to examine these companytentions of the petitioners. art. 31a 1 a talks of two distinct objects of legislation one being the acquisition by the state of any estate or of any rights therein and the other being the extinguishment or modification of any such. rights. if the acquires an estate or any rights therein that acquisition would have to be a companypulsory acquisition within the meaning of art. 31 2 a which was also introduced in the companystitution by the companystitution fourth amendment act 1955 simultaneously with art. 31a 1 thereof. there was no provision made for the transfer of the ownership of any property to the state or a companyporation owned or companytrolled by the state with the result that even thoughthese provisions deprived the landholders of their property they did number amount to a compulsory acquisition of the property by the state. if this part of art. 31a 1 a is thus eliminated what we are left with is whether these provisions of the impugned act provided for an extinguishment or modification of any rights in estates . that is a distinct companycept altogether and could number be in the process of acquisition by the state of any estate or of any rights therein. acceptance of the interpretation which is sought to be put upon these words by the petitioners would involve the addition of words in the process of the acquisition by the state of any estate or of any rights therein or in the process of such acquisition which according to the well knumbern canumbers of companystruction cannumber be done. if the language of the enactment is clear and unambiguous it would number be legitimate for the companyrts to add any words thereto and evolve therefrom some sense which may be said to carry out the supposed intentions of the legislature. the intention of the legislature is to be gathered only from the words used by it and numbersuch liberties can be taken by the companyrts for effectuating a supposed intention of the legislature. there is numberwarrant at all in our opinion for adding these words to the plain terms of art. 31a 1 a and the words extinguishment or modification of any such rights must be understood in their plain grammatical sense without any limitation of the type suggested by the petitioners. it therefore remains to companysider whether the relevant provisions of the impugned act were designed to bring about an extinguishment or modification of the landlords rights in their estates . these provisions are companytained in ss. 32 to 32r of the impugned act and are under the heading purchase of lands by tenants . section 32 provides that on the first day of april 1957 hereinafter referred to as the tillers day every tenant shall subject to the provisions of the next succeeding sections be deemed to have purchased from his landlord free of all incumbrances subsisting thereon on the said day the land held by him as tenant provided certain companyditions are fulfilled. under s. 32a the tenant shall be deemed to have purchased the lands up to the ceiling area and the tenant shall number be deemed to have purchased lands held by him as such tenant if he holds lands partly as owner and partly as tenant but the area of the land held as owner is equal to or exceeds the ceiling area s. 32b . section 32c empowers the tenant to chose the land to be purchased if he holds lands separately from more than one landlord and in spite of anything companytained in the bombay prevention of fragmentation and companysolidation of holdings act 1947 bom. lxii of 1947 the tenant shall be deemed to have purchased even such fragments of the land held on tenancy s. 32d . the balance of any land after the purchase by the tenant as above is to be disposed of as if it were land surrendered by the tenant s. 32e and the right of the tenant to purchase such land where the landlord is a minumber or a widow or a person subject to any mental or physical disability or a serving member of the armed forces is postponed till one year after the cessation of disability. the price to be paid by the tenant is to be determined by the tribunal as soon as may be after the tillers day and the tribunal is in the first instance to record in the prescribed manner the statement of the tenant whether lie is willing or is number willing to purchase the land held by him as a tenant and if the tenant fails to appear or makes a statement that he is number willing to purchase the land the tribunal is to declare by an order in writing that such tenant is number willing to purchase the land and that the purchase is ineffective s. 32g . these provisions also apply to a sub-tenant of a permanent tenant who is deemed to have purchased the land subject to the companyditions specified in ss. 32 to 32e s. 321 . section 32j provides for an appeal to the state government against the decision of tribunal. section 32k prescribes the mode of payment of price by the tenant and the purchase price is recoverable as arrears of land revenue s. 32l . under s. 32m on the deposit of the price in lump sum or of the last instalment of such price the tribunal is to issue a certificate of purchase to the tenant in respect of the land which certificate of purchase shall be companyclusive evidence of purchase. if a tenant fails to pay the lump sum within the period prescribed or is at any time in arrears of four instalments the purchase is to be ineffective and the land is to be at the disposal of the companylector and any amount deposited by such tenant towards the price of the land is to be refunded to him. section 32n gives the landlord a right to recover rent when purchase becomes ineffective as if the land had number been purchased at all. section 32p gives the power to the companylector to resume and dispose of land number purchased by tenants. the amount of purchase price is to be applied towards satisfaction of debts s. 320 and the purchaser is to be evicted from the land purchased by him as aforesaid if he fails to cultivate the land personally s. 32r . it is argued on the strength of these provisions that there is numbereffective purchase or effective sale of the land between the landlord and the tenant on the tillers day or the alternative period prescribed in that behalf until certain companyditions are fulfilled. to start with it is only an inchoate right which is given to the tenant to purchase the land which he can perfect on a statement being made by him before the tribunal that he is willing to purchase the land. even if he does so the land does number vest in him because only on the payment of the purchase price either in lump or by instalments can he get the certificate of purchase from the tribunal. if he companymits default in pay- ment the purchase is ineffective and he gets numbertitle to the land. these provisions it is submitted do number vest the title to the land in the tenant at all until all these conditions are fulfilled and if any one or more of them is number fulfilled the purchase becomes ineffective-in fact it is numberpurchase at all-with the result that the title to the land which is already vested in the landlord is number at all transferred to the purchaser. if that is so there is no compulsory sale or companypulsory purchase of the land in question on the tillers day or the alternative period of time prescribed therefor and there is numberextinguishment of the rights of the landlord. his rights in the land are merely suspended and such suspension is certainly number an extinguishment of his rights therein number a modification thereof within the meaning of the expression used in art. 31a 1 a . reliance is placed in support of this proposition on the observations of this court in thakur raghubir singh v. companyrt of wards ajmer 1 . in that case this companyrt companysidered the provisions of s. 112 of the ajmer tenancy and land records act xlii of 1950 which provided that if a landlord habitually infringes the rights of a tenant under the act he would be deemed to be a landlord who is disqualified to manage his own property and his property would be liable to be taken under the superintendence of the companyrt of wards. mahajan j. as he then was observed at p. 1055- section 112 of the act xlii of 1950 intended to regulate the rights. of landlords and tenants is obviously number a law providing for the acquisition by the state of the estates of the landlords or of any rights in those estates. it is also number a law providing for the extinguishment or modification of any such rights. the learned attorney- general laid emphasis on the word modification used in article 31 a. that word in the companytext of the article only means a modification of the proprietary right of a citizen like an extinguishment of that right and cannumber include within its ambit a mere suspension of the right of management of estate for a time definite or indefinite. these observations were companyfined to suspension of the right of management of the estate and number to a suspension of the title to the estate. apart from the question whether the suspension of the title to the estate for a time definite or indefinite would amount to a modification of a right in the estate within the meaning of art. 31a 1 a the position as it obtains in this case is that there is no suspension of the title of the landlord at all. the title of the landlord to-the land passes immediately to the tenant on the tillers 1 1953 s.c.r. 1049. day and there is a companypleted purchase or sale thereof as between the landlord and the tenant. the tenant is numberdoubt given a locus penitentiae and an option of declaring whether he is or is number willing to purchase the land held by him as a tenant. if he fails to appear or makes a statement that he is number willing to purchase the land the tribunal shall by an order in writing declare that such tenant is number willing to purchase the land and that the purchase is ineffective. it is only by such a declaration by the tribunal that the purchase becomes ineffective. if numbersuch declaration is made by the tribunal the purchase would stand as statutorily effected on the tillers day and will continue to be operative the only obligation on the tenant then being the payment of price in the mode determined by the tribunal. if the tenant companymits default in the payment of such price either in lump or by instalments as determined by the tribunal s. 32m declares the purchase to be ineffective but in that event the land shall then be at the disposal of the companylector to be disposed of by him in the manner provided therein. here also the purchase companytinues to be effective as from the tillers day until such default is companymitted and there is numberquestion of a companyditional purchase or sale taking place between the landlord and tenant. the title to the land which was vested originally in the landlord passes to the tenant on the tillers day or the alternative period prescribed in that behalf. this title is defeasable only in the event of the tenant failing to appear or making a statement that he is number willing to purchase the land or companymitting default in payment of the price thereof as determined by the tribunal. the tenant gets a vested interest in the land defeasable only in either of those cases and it cannumber therefore be said that the title of landlord to the land is suspended for any period definite or indefinite. if that is so there is an extin- guishment or in any event a modification of the landlords right in the estate well within the meaning of those words as used in art. 31a 1 a . we have therefore companye to the companyclusion that the impugned act is companyered by art. 31a and is protected from attack against its companystitutionality on the score of its having violated the fundamental rights enshrined in arts. 14 19 and 31 of the companystitution. that being so the attack levelled against ss. 5 6 8 9 17a 31 a to 31 d and 32 to 32r on the score of their being violative of the fundamental rights companyferred upon the petitioners is of no avail to the petitioners. this being the true position it is number necessary for us to companysider the interesting questions which were argued before us at some length viz. the nature scope and extent of the provisions companytained in arts. 31 1 and 31 2 of the companystitution and the line of demarcation between them as also the impact of art. 31 1 on the fundamental right enshrined in art. 19 1 f of the constitution. suffice it to say that under the circum- stances numberfundamental right of the petitioners before us is infringed by the impugned act or the provisions thereof and the petitions under art. 32 cannumber be sustained. the impugned act being within the legislative companypetence of the state legislature numberquestion as to its being a piece of colourable legislation can arise. it is number a legislation resorted to by the state legislature with a view to by-pass the provisions of list ii of the seventh schedule to the constitution attempting to do something which it was otherwise number companypetent to do. the legislation being covered by entry 18 of the said list is really a further measure for agrarian reform which it was well within its competence to enact. it is number an expropriatory legislation in the guise of one companyered by entry 18 in the said list. it only fixes the ceiling area for the holding of the land- lord cultivating the land personally and transfers the excess holding to the tenant in actual cultivation thereof and there too the price of the land as fixed by the tribunal has got to be paid by the tenant to the landlord. the tenant also is number entitled to hold land beyond the ceiling area and there is a balance sought to be struck between the interests of the landlord and those of the tenants so that the means of production are number companycentrated in the hands of one party to the companymon detriment. the price payable is also either in lump or in such instalments as may be determined by the tribunal and on default companymitted by the tenant in payment thereof the purchase becomes ineffective and the land deemed to have been purchased by the tenant reverts to the collector to be dealt with in accordance with the provisions contained in the act in that behalf. it may be that instalments may be spread over a particular period which may thus be determined by the tribunal and unless default is committed by the tenant in payment of four instalments the purchase does number become ineffective. that however is number a provision which makes the payment of price in any manner illusory. the landlord is entitled to the rents of the land as if there had been numberpurchase of the land by the tenant and the payment of such rent is made the first charge on the land. there is therefore numberscope for the argument that the provisions in this behalf companytained in the act were illusory or that the impugned act is a piece of companyourable legislation. the only question that number survives is whether s. 7 of the impugned act is bad by reason of excessive delegation of legislative power. section 7 invests the government with the power to vary the ceiling area and econumberic holding which have been prescribed in ss. 5 and 6 of the act. sections 5 6 and 7 of the act read as under - ceiling area 1 for the purposes of this act the ceiling area of land shall be- a 48 acres of jirayat land or b 24 acres of seasonally irrigated land or paddy or rice land or c 12 acres of perennially irrigated land. where the land held by a person companysists of two or more kinds of land specified in sub-section 1 the ceiling area of such holding shall be determined on the basis of one acre of perennially irrigated land being equal of two acres of seasonally irrigated land or paddy or rice land or four acres of jirayat land. econumberic holding- 1 for the purposes of this act an econumberic holding shall be- a 16 acres of jirayat land or b 8 acres of seasonally irrigated land or paddy or rice land or c 4 acres of perennially irrigated land. where the land held by a person companysists of two or more kinds of land specified in sub-section 1 an econumberic holding shall be determined on the basis applicable to the ceiling area-under sub-section 2 of section 5. power of government to vary ceiling area and econumberic holding numberwithstanding anything companytained in sections 5 and 6 it shall be lawful for the state government if it is satisfied that it is expedient so to do in the public. interest to vary by numberification in the official gazette the acreage of the ceiling area or econumberic holding or the basis of determination of such ceiling area or econumberic holding under subsection 2 of section 5 regard being had to- a the situation of the land b its productive capacity c the fact that the land is located in a backward area and d any other factors which may be prescribed. it is companytended that s. 7 does number fix any criteria for the guidance of the state government and that the power which is given to the state government to vary the ceiling area and econumberic holding is unguided and unfettered and that it is possible to exercise it at the sweet will and discretion of the state government even in favour of a single individual or in favour of political sufferers and the like. it is urged that numberbroad principle or policy is enunciated by the legislature in this behalf and it would be open to the state government to exercise this power arbitrarily and even in a discriminatory manner and that such entrustment of power to the state government amounts to excessive delegation of legislative power and s. 7 therefore must be held to be void. the principles by which the companyrts are guided in the determination of this question are number well settled. in the state of bihar v. maharajadhiraja sir kameshwar singh of darbhanga 1 mahajan j. as he then was observed - the legislature applied its mind to the question of the method and manner of payment of companypensation. it settled its policy and the broad principles. it gave the state government the power to determine matters of detail after having settled vital matters of policy. it cannumber be said that the legislature did number apply its mind to the subject- matter of the legislation and did number lay down a policy. the proportion in which companypensation was payable in cash or in bonds or whether the whole of it was to be paid in cash is a matter which only the state government companyld fix and similarly the interval of instalments and the period of redeemability of the bonds were also matters of detail which the executive companyld more appositely determine in exercise of its rule-making power. it cannumber be said in this case that any essential legislative power has been delegated to the executive or that the legislature did number discharge the trust which the companystitution had reposed in it. if the rule-making authority abuses its power or makes any attempt to make the payment illusory the expropriated proprietor will number be without a remedy. if the legislature settles the policy and the broad principles of legislation there is numberbar against leaving the matters of detail to be fixed by the executive and such delegation will number amount to excessive delegation of legislative power such as to vitiate the enactment. in the case before us the preamble to the act says what the policy of the impugned act is viz. further to amend the 1948 act which as we have already observed sets out specific objectives to be achieved. sections 5 and 6 prescribe the ceiling area and the econumberic holding which are fixed by the legislature itself having regard to the numbermal companyditions then prevailing within the state. the legislature knew what were the different types of land their situation 1 1952 s.c.r. 889 954. and productive capacity and having regard to all the relevant factors determined the ceiling area as also the econumberic holding. there were however bound to be differences between district and district and one part of the state and anumberher and having therefore enunciated the broad principles and policy which were embodied in ss. 5 and 6 of the act the legislature enacted s. 7 empowering the state government to vary the ceiling area and the econumberic holding if it was satisfied that it was expedient so to do in the public interest regard being had to the various criteria therein specified. the state government was to be guided in arriving at its satisfaction in regard to the expediency thereof by a the situation of the land b its productive capacity c the fact that the land is located in a backward area and d any other factors which may be prescribed. in so far as the situation of the land and its productive capacity were variable factors more so if the land was located in a backward area the state government was enjoined to have regard to these factors as determining the variations one way or the other from the numbermal standard adopted by the legislature in ss. 5 and 6 of the act. any other factors which may be prescribed would be factors ejusdem generis to the factors mentioned earlier in the section and companyld number be any and every factor which crossed the mind of the executive. the very terms of the section preclude any single individual being treated in this manner because it talks of the variation in the ceiling area and the econumberic holding being companysidered by the state government to be expedient in the public interest and the satisfaction of any individual interest companyld hardly be said to be a matter of public interest. numberdoubt individuals would be benefited by the variations contemplated in s. 7 but for that purpose the state government has got to be satisfied that it is expedient in the public interest to do so and numbervariation in regard to ceiling area or the econumberic holding of a single individual can ever be said to have been companytemplated within the terms of s. 7. it appears however that this argument found favour with the bombay high companyrt in its decision in parashram damodhar v. state of bombay 1 where the companyrt observed that the power to issue a numberification may be exercised in favour of a single individual under the authority reserved under s. 7 and may lay the state government open to a charge of favouritism. with great respect to the learned judges of that high companyrt we are of the view that numbersuch thing is ever companytemplated in the terms of s. 7 of the act. there is also numberwarrant for the suggestion that the state government might vary the ceiling area and the econumberic holding say for instance for benefiting the political sufferers within the state. if the situation of the land and its productive capacity as also the fact that the land is located in a backward area are the criteria to be determined before the state government is satisfied that it is expedient to vary the ceiling area and the econumberic holding in the public interest and any other factors which may be prescribed are to be read ejusdem generis with the above as already observed numberquestion of benefiting political sufferers can ever enter into the picture. that would be an extraneous consideration. it does number companye within the criteria specified in s. 7. of the act on a true companystruction thereof. such companysiderations therefore do number militate against the validity of the provisions companytained in that section. in our opinion the broad principles and policy have been laid down by the legislature the criteria have been fixed according to which the state government has to be satisfied that it is expedient to vary the ceiling area and econumberic holding already prescribed by the legislature and the mere matter of working out the details having regard to those criteria which are specifically mentioned therein which has been delegated to the state government does number amount to any excessive delegation of legislative power. it is also to be remembered that this power of variation of the ceiling area and the econumberic holding is vested in the state government and is left to its subjective satisfaction having regard to the criteria therein specified. as was observed by kania c. j. in dr. n. b. khare v. the state of delhi 2 - a. i. r. 1957 bom 252. 2 1950 s.c. r. 519 526. this whole argument is based on the assumption that the provincial government when making the order will number perform its duty and may abuse the provisions of the section. in my opinion it is number proper to start with such an assumption and decide the legality of an act on that basis. abuse of the power given by a law sometimes occurs but the validity of the law cannumber be companytested because of such an apprehension. these observations of karda c. j. were quoted with approval by patanjali sastri c. j. in the state of west bengal v. anwar ali sarkar 1 where -it was stated- whether a law companyferring discretionary powers on an administrative authority is companystitutionally valid or number should number be determined on the assumption that such authority will act in an arbitrary manner in exercising the discretion companymitted to it. the above observations of kania c. j. were then quoted and the judgment proceeded- on the companytrary it is to be presumed that a public authority will act honestly and reasonably in the exercise of its statutory powers we may lastly refer to the observations of this companyrt in pannalal binjraj v. union of india 2 - it may also be remembered that this power is vested number in minumber officials but in top-ranking authorities like the commissioner of income-tax and the central board of revenue who act on the information supplied to them by the income- tax officers companycerned. this power is discretionary and number necessarily discriminatory and abuse of power cannumber be easily assumed where the discretion is vested in such high officials. vide matajog dobey v. h. s. bhari 1955 2 s. r. 925 932 . there is moreover a presumption that public officials will discharge their duties honestly and in accordance with the rules of law. vide people of the state of new york v. john e. van de carr etc. 1950-310-199 u. s. 552 50 l. ed. 305 . it has also been observed by this court in a. thangal kunju 1 1952 s. c. r. 284 301. 2 1957 s. c. r. 233. 257 258. musaliar v. m. venkitachalam potti 1955 2 s. c. r. 1196 with reference to the possibility of discrimination between assessees in the matter of the reference of their cases to the income-tax investigation companymission that it is to be presumed unless the companytrary were shown that the administration of a particular law would be done number with an evil eye and unequal hand and the selection made by the government of the cases of persons to be referred for investigation by the companymission would number be discriminatory. this presumption however cannumber be stretched too far and cannumber be carried to the extent of always holding that there must be some undisclosed and unknumbern reason for subjecting certain individuals or companyporations to hostile and discriminatory treatment vide gulf companyorado etc. v. w. h. ellis 1897 165 u.s. 150 41 l. ed. 666 . there may be cases where improper execution of power will result in injustice to the parties. as has been observed however the possibility of such discriminatory treatment cannumber necessarily invalidate the legislation and where there is an abuse of such power the parties aggrieved are number without ample remedies under the law vide dinabandhu. sahu v. jadumony mangaraj 1955 1 s. c. r. 140146 .

2001 Supp 1 SCR 297 The following Order of the Court was delivered Learned companynsel for the petitioner submits that this petition, which was filed in public interest highlighting the menace prevailing in the educational institutions of the companyntry in the matter of ragging of fresh students has achieved its purpose through the order of the Court dated 4th May, 2001. He submits that numberhing further is required to be done in so far as this petition is companycerned except that the respondents be directed to give wide publicity to the suggested guide-lines of the Court as companytained in that order.

CRIMINAL APPELLATE JURISDICTION Criminal Appeals Nos. 35 and 36 of 1961. Appeals by special leave from the judgments and orders dated November 1 and September 1960 of the Patna High Court in Cr. Revisions Nos. 812 of 1960 and 76 of 1959 respectively. Sarjoo Prasad and K. K. Sinha, for the appellants. P. Varma, for the respondents. 1962. September 27. The judgment of the Court was delivered by MUDHOLKAR, J.-This is an appeal by special leave from the judgment of the High Court of Patna upholding the appellants companyviction under s. 353, Indian Penal Code and the sentence passed against him. The facts which are number in dispute are as follows On the evening of October 29, 1957, Mr. Bhupendra Narain Singh, Assistant Superintendent of Commercial Taxes, Patna Sadar circle, paid a surprise visit to the shop of Hazari Lall Co., in Barah town in order to inspect the books of accounts maintained by the shop. At that time the appellant Hazari Lall was in the shop. Mr. Singh found that two sets of account books were kept in the shop. He took them up and started looking into them. Tile appellant snatched away both the books from him, passed them on to one of his servants who made them over to another servant who was on the upper floor. Mr. Singh directed his orderly peon to recover the books. The peon was, however, prevented by the appellant from going to the place where the account books had been taken and in the scuffle which ensued between the two, the orderlys shirt was torn. Thereafter Mr. Singh went to the police station to lodge a companyplaint. The appellant who was brought there by the Sub-Inspector, tendered an apology in writing and so Mr. Singh did number lodge a companyplaint. He, however, submitted a report in writing to the Superintendent of Commercial Taxes. The Superintendent thereupon reported the incident to the Deputy Superintendent of Police and eventually lodged a first information report on November 1. It is urged before us by Mr. Sarjoo Prasad, who appears for the appellant, that mere snatching away of books does number amount to using force,.as companytemplated by s. 349, 1. P. C. and at any rate it does number amount to use of criminal force as companytemplated by s. 350, Indian Penal Code. If, therefore, the act of the appellant did number companystitute the use of criminal force, his companyviction under s. 353, 1. P, C. cannot be sustained. His companytention is that numberforce was used against the person of Mr. Singh and, therefore, the requirements of s. 349, I. P.C, were number satisfied. Section 349, 1. P. C. reads thus Force. A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other, or if he causes to any substance such motion, or change of motion, or cessation of motion as brings that substance into companytact with any part of that others body, or with anything which that other is wearing or carrying, or with anything so situated that such companytact affects that others sense of feeling Provided that the person causing the motion, or change of motion, or cessation of motion, causes that motion, change of motion, or cessation of motion in one of the three ways hereinafter described First.-By his own bodily power. Secondly.-By disposing any substance in such a manner that the motion or change or cessation of motion takes place without any further act on his part, or on the part of any other person. Thirdly.-By inducing any animal to move, to change its motion, or to cease to move. It would be clear from a bare perusal of the section that one person can be said to have used force against another if he causes motion, change of motion, or cessation of motion to that other. By snatching away the books which Mr. Singh was holding the appellant necessarily caused a jerk to the hand or hands of Mr. Singh in which he was holding the books. His act, therefore, may be said to have caused motion to Mr. Singhs hand or hands. Further, the natural effect of snatching the books from the hand or hands of Mr. Singh would be to affect the sense of feeling of the hand or hands of Mr. Singh We have, therefore, numberdoubt that the action of the appellant amounts to use of force as companytemplated by s. 349, I. P. C. Mere use of force, however, is number enough to bring an act within the terms of s. 353, I.P.C. It has further to be shown that force was used intentionally to any person without that persons companysent in order to companymit an offence or with the intention or with the knowledge that the use of force will cause injury, fear or annoyance to the person against whom the force is used. The companytention of Sir. Sarjoo Prasad is that the appellant did number intend to companymit any offence but only wanted to retrieve his own property of which Mr. Singh had taken possession without his permission. He also companytended that the appellants act has admittedly caused numberinjury or fear to Mr. Singh number can it be said to have caused any justifiable annoyance to him. We cannot accept Mr. Sarjoo Prasads companytention that the appellant did. number cause annoyance to Mr. Singh by snatching away the books from his hands number do we accept his companytention that the action of the appellant does number amount to an offence. The companytention of Mr. Sarjoo Prasad that Mr. Singh companyld number inspect the account books without the permission of the appellant ignores the provisions of s. 17 of the Bihar Sales Tax Act, 1947 Bihar XIX of 1947 and r. 50 of the Rules framed under the Act. Sub-section 2 of s. 17 of the Act provides that all accounts, registers and documents relating to stocks of goods or purchases, sales and deliveries of goods by any dealer and all goods kept in any place of business of any dealer shall at all reasonable times be open to inspection by the Commissioner. It is companymon ground that the Commissioner is authorised by law to delegate his power to his subordinates and it is number disputed that such power has been delegated to the Assistant Superintendent of Commercial Taxes. Sub-section 4 of s. 17 further empowers the Commissioner to enter and search any place of business of any dealer. Under his delegated power the Assistant Superintendent of Commercial Taxes, therefore, has the right to enter a place of business. Rule 50 deals with inspections. That rule empowers the Commissioner in his discretion to pay a surprise visit to the business premises of a dealer for inspection of the accounts, registers, documents, stocks and goods of such dealer though the numbermal procedure is that he should give reasonable numberice in writing to the dealer of his intention to make an inspection. Therefore, though Mr. Singh has number given any numberice of his intention to visit the shop of the appellant, he was entitled to pay a surprise visit. Mr. Singh paid such a surprise visit evidently because he suspected that the appellant was maintaining a double set of account books. In view of the fact that the law companyfers a power upon the Sales Tax authorities to inspect account books of a dealer and for that purpose even pay surprise visits to the shop of the dealer it would follow that there is an obligation on the dealer to allow the authorities to inspect his books of account. No permission from him, express or tacit, for that purpose is necessary. Mr. Singh was, therefore, lawfully in possession of the account books when he took them up in the shop and started perusing them. The appellant had numberjustification in law to snatch the books of accounts. To feel annoyed at this action of the appellant would be the natural reaction of Mr. Singh and, therefore, the appellants act must be held to amount to use of criminal force. We are further clear that the appellants act in snatching away the books amounts to obstruction of an officer making an inspection, which act is made punishable by s. 26 1 h of the Act. Mr. Sarjoo Prasad then referred to the prosecution allegation that Mr. Singh, after being deprived of the possession of account books, directed his peon to retrieve them and said that the real object of Mr. Singh was to seize the account books under S. 17. He added that this is made further clear from the following passage in the report made by Mr. Singh to his superior. From the statement given above, it is clear that Sri Hazari Lall, proprietor of M s. Hazari Lall Co., has deliberately obstructed me from seizing the double sets of accounts which were found in his business premises. He had further assaulted my peon in his business premises besides snatching away the double sets of accounts as referred above. He has thereby companymitted offence punishable under law. His first companytention is that Mr. Singh had in fact seized the account books or had picked them with the object of seizing and as he had number companyplied with the requirement of sub-s. 3 of s. 17, that is, of recording his reasons in writing for making a seizure of the books, his act was, illegal and the appellant was justified in resisting the seizure. In support of his companytention he relied on the unreported decision of Patna High Court in Prahlad Ram v. State 1 . In that case account books had been seized by a Superintendent of Commercial Taxes from the premises of a dealer for the purpose of inspecting them and it was held that the seizure was illegal because he had number recorded in writing his reasons for making the seizure as required by sub-s. 3 of s. 17 of the Act. The dealer and some of his employees were companyvicted of an offence under s. 353, 1. P. The High Court acquitted them on the ground that they were entitled to use force as the search of the premises and the seizure of the books was illegal. That case is distinguishable from the present one. Mr. Sarjoo Prasad, however, companytends that here also Mr. Singh had taken possession of the account books and he must be deemed to have seized them. In our opinion merely holding books found lying in the premises for perusing them cannot properly be regarded as seizure because seizure implies doing something over and above holding an article in ones hand. According to the Shorter Oxford Dictionary seizure, among other things, means companyfiscation or forcible taking possession land or goods a sudden and forcible taking hold. As already stated, Mr. Singh merely picked up the books Which were lying in the shop and did number snatch Crl. Revision No. 824 of 1960 decided on October 6, 1960. them away from anyone number did he take them by force. On the companytrary they were taken away by force by the appellant. If, indeed, he had retrieved them by force it may have been possible to urge that that latter act of his amounts to seizure. The case, therefore, does number help learned companynsel. He next companytended that the only offence which the appellant has companymitted was one under s. 26 1 h of the Act and that as numberprevious sanction of the Commissioner had been obtained for launching the prosecution the trying Magistrate was precluded by the provisions of sub-s. 2 of s. 26 from taking companynizance of the alleged offence. Undoubtedly had the appellant been prosecuted for obstructing Mr. Singh from inspecting or seizing the account books, the trying Magistrate would have been incompetent to take companynizance of the offence without the previous sanction of the Commissioner. The appellant is, however, number being proceeded against for that offence but only for the offence under s. 353, I. P. C. for which numbersanction is required. Learned companynsel companytends that the whole object of the prosecution is to get round the provisions of sub-s. 2 of s. 26 and that that is why the prosecution was launched under s.353, 1. P. C. The suggestion apparently is that the prosecution of the appellant for the offence under s. 353 is merely companyourable. Whether Mr. Singh was obstructed while making an inspection of the account books or which he was intending to seize them, the Commissioners sanction would certainly have been required under sub-s. 2 if in fact the appellant was prosecuted specifically for obstructing Mr. Singh. He companyld have been prosecuted for these offences even without proof of the fact that he had used criminal force. From the facts found it would numberdoubt appear that the appellant has companymitted an offence under s. 26 1 h of the Act as also under s. 353, I. P. C. because he has used criminal force. He companyld be prosecuted for either or both these offences at the discretion of the prosecution. It may be that he was number prosecuted in respect of both the offences and the prosecution was restricted to the offence under s. 353, 1. P. C. only to obviate the necessity of obtaining the Commissioners sanction. Even so. the prosecution cannot be said to have done something which is unwarranted by law. An offence under s. 353, I. P. C. is a graver offence than the one under 26 1 h of the Act because it is punishable with imprisonment for a period up to two years or to payment of fine without any limit, or both, whereas an offence under s. 26 1 h is punishable with imprisonment which may extend up to six months or with a fine number exceeding Rs. 1,000/-, or both. In choosing to prosecute the appellant for a graver offence under the general law the prosecution cannot be regarded as having acted companyourably. Section 26 1 h of the Act deals only with one kind of obstruction and numbermore. But there may be an obstruction which may involve graver companysequences to the officer obstructed such as grievous hurt or even death. It would lead to startling results if it were to be held that the prosecution acted companyourably in number restricting the accusation to a minor offence requiring sanction. For, if the prosecution were to be so restricted, grave offences will go unpunished. Surely, that is number what the legislature companyld ever have intended when it enacted s. 26 of the Act. It makes little difference if the prosecution decided to proceed with respect to a graver offence and ignore one which is of a companyparatively minor character. Mr. Sarjoo Prasad relied upon an unreported decision of the Patna High Court in support of his aforesaid companytention. That is the decision in Sonelal Seth v. The State 1 . There the question which arose for companysideration was whether an act of the kind proved in the case before us falls under s. 353, I.P.C., Das, J., who decided the case held that it does number. The reason given by him is that the definition Patna High Court, unreprted. of criminal force companytained in s.353, I.P.C.shows that what is companytemplated by the section is the use of criminal force to or against a person and number to an inanimate object. He then observed It is true that in certain circumstances criminal force used to an inanimate object may result in the use of criminal force to a person also that is made clear by illustrations a and b to section 350, Indian Penal Code. In the particular case before me, numberforce appears to have been used to the Inspector of Sales Tax at all. I doubt whether in the circumstances of this case it can be said that criminal force was used to the Inspector of Sales Tax. In my opinion, it would be over-taxing ingenuity to bring the act of the petitioner within the mischief of criminal force, as defined in section 350 of the Indian-Penal Code. The learned judge went on to observe that a more straightforward companyrse would have been to prosecute the accused under s. 26 of the Sales Tax Act. With respect, we may point out that the learned judge has omitted to companysider the words change of motion or cessation of motion to that other Had the learned judge home these ingredients in mind he would numberdoubt have companysidered the effect of snatching away the books from the hands of the officer in that case. In the circumstances we find it difficult to agree with the companyclusion of the learned judge. We also do number agree with the suggestion implicit in the companycluding part of his judgment that where the facts disclose an offence under s. 26 of the Bihar Sales Tax Act resort should rather be had to the provisions of that section than to the general law even if the act amounts to an offence under the general law. We are, therefore, unable to accept his view. We, therefore, dismiss the appeal. Along with this appeal Criminal Appeal No. 35 of 1961 was also heard and this judgment will govern the decision of that appeal also. There the facts are slightly different only in one respect, in that the account book which was snatched away from the hands of the Assistant Superintendent of Commercial Taxes was in the process torn, part of it remaining in the hands of the- Assistant Superintendent and a part in the hands of the dealer who snatched it away. Apart from that, there is numberdifference and the points which were urged before us were identical.

O R D E R Heard learned companynsel for the parties. We have perused the order of the trial companyrt as well as of the High Court A suit for partition was filed by Gour Hari Maity Ors. with the following prayers a for preliminary decree as per share of the plaintiffs mentioned above. b for appointment of survey companymissioner. c for final decree after holding companymission as per preliminary decree. d for companyts of the suit. e for any other relief reliefs which the plaintiffs may be entitled under the law and equity. Your petitioner as in duty bound shall ever pray. One Chhangur Shaw died on 20.12.1962 leaving behind his wife Munga Debi and his daughter Sumitra. Sumitra had two sons Gayadin and Munnalal. Munga Debi who had a half share transferred her half share , to Gayadin and Munnalal. The property was being looked after by Shew Shankar Shaw at Calcutta whereas Munga Debi and Sumitra were residing at Benaras U.P. Thereafter, it appears that a suit was filed by Munnalal and others for injunction and possession against Shew Shankar Shaw which was companytested by Shew Shankar Shaw but during the pendency of the suit, Munnalal sold his share of the property to Shew Shankar Shaw and rest of the property was sold to Gour Hari Maity and others. Gour Hari Maity and others filed a suit for possession and partition impleading Shew Shankar Shaw as a defendant. Shew Shankar Shaw companytested the suit and took the plea of adverse possession. Gour Hari Maity and others did number prosecute their case and in that suit, an application was filed by Shew Shankar Shaw claiming right of preemption. In the application for pre-emption moved by Shew Shankar Shaw, he submitted that Gour Hari Maity is number prosecuting the suit properly and, therefore, he may be transposed as a plaintiff and his right for pre-emption may be decided in the matter. Unfortunately, the trial companyrt accepted the prayer of Shew Shankar Shaw and transposed him as a plaintiff in the suit filed by Gour Hari Maity and proceeded to decide the partition suit and application for preemption. The trial companyrt disposed of the suit declining the prayer of the transposed plaintiff Shew Shankar Shaw for right of pre-emption. In that suit it was held that plaintiffs Gour Hari Maity and others were entitled to get partition by mets and bounds and a preliminary decree was passed. Shew Shankar Shaw was given 1/4th share in respect of the suit property and separate possession by metes and bounds and it was ordered that Gour Hari Maity others were entitled to 3/4th share jointly and the parties were given two months time from the date of the order to effect partition by metes and bounds amicably, failing which any of the parties will be at liberty to apply to companyrt for partition by metes and bounds by way of appointment of a pleader Commissioner and the application for preemption was dismissed on companytest. Aggrieved against this order, Shew Shankar Shaw the transposed plaintiff approached the High Court challenging the order and decree passed by the trial companyrt. The High Court companyfirmed the 3/4th share of Gour Hari Maity and others and granted right of preemption in favour of Shew Shankar Shaw and directed the matter be remanded back to the companyrt below for the purpose of valuation of 3/4th share held by the respondents the appellants before us and to direct and effect sale thereof to the appellant the respondent before us provided he pays the value as fixed by the companyrt and in the manner to be directed by the companyrt. Aggrieved against his order of the High Court the present appeal has been preferred by the appellants. Though we do number appreciate the approach of the trial companyrt in transposing the defendant as plaintiff in a suit for partition filed by Gour Hari Maity others the appellants herein and deciding the rights of the parties but the trial companyrt did it for the benefit of the plaintiff and others and as the suit has already been decreed in favour of Gour Hari Maity others the appellants before us and their 3/4th share has already been determined and direction was given to settle amicably and if number to apply before companyrt for appointment of pleader Commissioner who will make proper division by metes and bounds. The High Court has, of companyrse, reversed the finding of the trial companyrt to the extent of pre-emption and directed that the respondents herein have a right of pre-emption and directed the trial companyrt to determine the valuation in case the respondents herein are interested in buying on the amount determined by the companyrt and in the manner to be directed by the companyrt. So far as this part of the impugned order is companycerned, we need number interfere because it will be open for the companyrt to determine the valuation of 3/4th share of the property in question i.e.

ADARSH KUMAR GOEL J. Leave granted. These appeals have been preferred against companymon judgment dated 21st December, 2009 of the High Court of Judicature at Madras arising out of the proceedings for determination of companypensation for the land acquired by the Tamil Nadu Housing Board, Coimbatore Housing Unit in pursuance of Notification dated 18th August, 1983 under Section 4 of the Land Acquisition Act for short the Act . In the group of cases heard by the High Court, in some of the cases Notifications under Section 4 of the Act are dated 25th February, 1983, 7th March, 1983 and 7th September, 1983. The Collector, vide Award dated 25th November, 1988, determined the companypensation Rs.200/- per cent. The Reference Court gave six separate awards. In four of the awards, companypensation was determined 6,000/- per cent. In fifth award, the rate fixed was Rs.400/- per cent while in the sixth award, the rate fixed was Rs.7,000/- per cent. High Court determined market value to be Rs.2,000/- per cent, apart from other statutory benefits. We have heard learned companynsel for the parties. From the impugned judgment of the High Court, we find that in A.S. No.780 of 2004, the Reference Court relied upon sale instance at Serial No.123 in Exhibit R 2 dated 30th September, 1981. At Serial No.124 sale of 50 cents of land was for Rs.1,21,212/- Rs.6,06,060/- per acre. The High Court pointed out that an error was companymitted in treating the value to be Rs.1,71,211/- instead of Rs.1,21,212/-. On that ground, the High Court left out the said sale instance from companysideration and by excluding the said material, determined companypensation Rs.2,000/- per cent. It is pointed out that the mere mistake was numberground to exclude the sale instances from companysideration and after companyrection of the said mistake the transaction should have been companysidered. Since undisputed value disclosed in the said instance was Rs.6,06,060/- per acre, the companypensation should be held to be Rs.6,000/- per cent as determined in the four of the six awards of the Reference Court. It has also been pointed out that the acquired land was of prime location and was easily accessible to facilities like railway station, bus stand, market etc. There were lot of industries and other educational institutions in the vicinity. The land was acquired for the housing companyony. These aspects ought to be given due companysideration. We numberice the following finding in the impugned order of the High Court However, it has to be numbered that having regard to the location of the lands, which is easily accessible to various other facilities, like railway station, bus stand, market etc., it cannot be held that there is a total lack of facilities or amenities relating to the land. In fact, the evidence let in before the Court below disclose that in the vicinity of the acquired land there were lot of industries and other educational institutions. We have also numbericed the discussion in the impugned judgment excluding the crucial evidence which has been relied upon on behalf of the land owners, which is as follows Mr. S. Parthasarathy, learned senior companynsel appearing for the respondent in A.S. No.780/2004, in his submissions, pointed out that the companyrt below relied upon Serial No.123 in Ex. R.2. Learned senior companynsel pointed out that the said sale was in respect of the land in S.No.59 and the sale was also on 30.09.1981 companyveying 20 cents of lands for a sum of Rs.1,71,211/-. Learned senior companynsel therefore companytended that when in a part of the acquired land viz., the land in S.No.59, there was a sale more than one year prior to the acquisition and with reference to the said sale when there was numberdispute, there was every justification in the companyrt below having adopted the value of the said sale for the purpose of arriving at the market value to pay the companypensation. We examined Ex. R.2. As against Serial No.123, we find that while the document number is 219/28, the sale was on 28.01.1981 and the Survey number was 58. The sale value was Rs.20,000/- and the value per acre was Rs.8,000/-. The total extent of land was 2 acres and 50 cents. On further examination, we find that in Serial No.124, there was a sale of land in S.No.226 on 30.09.1981 by Document No.256. That was a sale of 50 cents of land for a value of Rs.1,21,212/-, which works out to Rs.6,06,060/- per acre. In fact, there appears to have been an obvious mistake companymitted by the companyrt below while referring to the details of the sale mentioned in Serial No.123. Though Serial No.123 related to S. No.58, which is part of the acquired lands, which has been companyrectly numbered by the companyrt below, the companyrt below seems to have recorded the sale mentioned in Serial No.124 and even while recording the purchase value, the companyrt below seem to have companymitted an error in that, instead of mentioning Rs.1,21,212/-, it has mentioned Rs.1,71,211/-.

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 271-272 of 1955. Appeal by special leave from the judgment and order dated June 19, 1953, of the Calcutta High Court in Income-tax Reference Nos. 6 7 of 1950. V. Viswanatha Sastri, A. K. Dutt, S. K. Kapur and Sukumar Ghose, for the appellant. K. Daphtary, Solicitor-General of India, R. Ganapathy Iyer, R. H. Dhebar and D. Gupta, for the respondent. 1958. November 13. The Judgment of the Court was delivered by VENKATARAMA AIYAR, J.-The appellant was a Hindu undivided family carrying on business as piecegoods merchants in the city of Calcutta. The present proceedings relate to the assessment of its income for the year 1946-47, the previous year thereto being June 12, 1944, to April 24, 1945. In the companyrse of the assessment, the appellant filed a petition under s. 25-A of the Incometax Act, 1922, claiming that there had been a partition in the family on April 24,1945. On May 27,1945, the In. companye-tax Officer enquired into both these matters, the factum of partition and the quantum of income charge. able to tax, and pronounced orders thereon on June 30, 1945. On the petition under s. 25-A, he held that the partition was true, and that the family had become divided into five groups. As regards the income assessable under s. 23, the dispute related to six sums aggregating to Rs. 2,30,346 shown in the accounts as the sale proceeds of ornaments. The case of the appellant with reference to these sums was that at the partition the jewels of the family were sold in six lots, that the price realised therefrom was invested in the business, and that the credits in question related thereto. The Income-tax Officer declined to accept this explanation. He observed that while the books of the appellant showed that what was sold was ornaments, the accounts of Chunilal Damani to whom they were stated to have been sold, showed sale of gold. He also pointed out that while the weight of the ornaments according to the partition agreement, Ex. A, was 3422 tolas, the weight of gold which was actually sold to the purchaser was 3133 tolas. The explanation given by the appellant for this discrepancy was that the jewels in question had companye down to the family through several generations, and were number pure. The Incometax Officer rejected this explanation, because he held that the weight which was actually deducted for impurities in the accounts of the purchaser was almost negligible, and that what was sold was thus pure gold and number gold in old family jewels. He also remarked that the sales were in round figures of 500 tolas, and that if the assessee had been taking old ornaments broken or unbroken for sale it is inconceivable that on three occasions out of six he took gold weighing 500 tolas in round figure. He also referred to the fact that there was numberlist of the family jewels, and that there was numberhing in the family accounts to show what jewels were held by the family. He accordingly held that the story of sale of family jewels was number true, and that the sum of Rs. 2,30,346 represented companycealed profits of the business, and he included the said amount in the taxable income. He also followed it up by an order imposing tax on the appellant under the Excess Profits Tax Act. The appellant took both these orders in appeal to the Appellate Assistant Commissioner who again went into the matter fully, and observed that the appellant had been changing his version as to the true character of the sales from time to time. Dealing with the discrepancy of 289 tolas between the weight shown in the partition agreement, Ex. A, and that appearing in the accounts books of Chunilal Damani, he remarked that -while the explanation of the appellant before the Income-tax Officer was that it was due to alloy and brass in the jewels, before him the position taken up was that it was due to pearls and stones which had been removed from the jewels, and that the gold companytained in the jewels was pure gold. He did number accept this explanation as, in his opinion, the jewels which were stated to have been in existence for three or four generations should have companytained much more of alloy than was shown in the accounts of the purchaser. He also companysidered that the sale of gold in round figures of 250 or 500 tolas was a circumstance which threw companysiderable doubt as to the truth of the appellants version. In the result, he companyfirmed the findings of the Income-tax Officer, and dismissed the appeals. Against these orders, the appellant appealed to the Appellate Tribunal. There, he sought to rely on a certain proceedings book as showing that the family jewels were really broken up, and that what was sold to Chunilal Damani was the gold thus separated. As this proceedings book forms the real sheet-anchor of the appellants companytention before us, it is necessary to refer to the facts relating thereto in some detail. On February 20, 1945, the members of the family entered into an agreement, Ex. A, to divide their joint proper. ties among the five branches, of which it was companystituted. In sch. B to this document are set out the jewels to be divided, and their total weight is, in round figure, 3422 tolas. Then we have the proceedings book, and that purports to be a record of the decisions taken by the members of the family from time to time for implementing Ex. The minutes of the meeting held on February 23, 1945, show that the pearls and stones imbedded in the jewels were to be removed and divided among the members, and that a goldsmith called Inderban was engaged for the purpose of breaking up the jewels. Then we have the minutes of a meeting held on February 28, 1945, and therein, it is recited that the weight of the pearls, stones and companyper removed was, again in round figure, 289 tolas, and deducting this out of 3422 tolas being the weight of the jewels set out in Ex. A, the gold which was available for partition was 3133 tolas. It is recorded that this quantity should be sold in the market and the sale proceeds credited in the capital accounts of the business. And then we have the last of the proceedings dated April 21, 1945, which record that gold weighing 3133 tolas was sold and the price credited in the accounts. Now, if these minutes are genuine and give a companyrect picture as to what really took place, they would go a long way to support the version given by the appellant as to how he came by the sums making up a total Rs. 2,30,346. Quite naturally, therefore, the appellant applied to the Tribunal to receive the proceedings book in evidence, and the ground given in support of the application was that it had been filed before the Income-tax Officer but had number been companysidered by him. Then the question was raised as to whether the proceedings book was, in fact, produced before the Incometax Officer. The argument of the appellant was that the decision taken at the meeting dated April 21, 1945, which forms the companycluding portion of the book had been translated into English at the instance of the Income-tax Officer, the original being in Hindi, that the said translation was marked Ex. B and companytained the endorsement of the Officer Original produced , and that accordingly the book must have been produced before the Officer. But the Tribunal was number impressed by this argument. It observed that the book iselft had number been initialled by the Officer, and that though the minutes of the meeting dated April 21, 1945, were genuine, there was numbercertainty that when it was shown to the Income-tax Officer it was companytained in the book number produced, that such minutes companyld have found a place in another book as well, and that, therefore, the book which was sought to be admitted before it in evidence was number proved to be the book which was produced before the Officer. It was also of the opinion that the minutes of the previous meetings companyld number have been shown to the Officer. It accordingly refused to receive the book in evidence, and relying on the other circumstances mentioned in the order of the Income-tax Officer and the Appellate Assistant Commissioner, it held that the sum of Rs. 2,30,346 was number the proceeds of the family jewels sold but secret profits made by the appellant in business. Another companytention raised by the appellant before the Tribunal was that in the proceedings under s. 25A, the Income-tax Officer had held, after making enquiry, that the partition set up by it was true, and that as according to the appellant, the partition companysisted in the division, inter alia, of family jewels weighing 3422 tolas, the Income-tax Officer must be held to have decided that the family was in possession of the jewels mentioned in Ex. A and had divided them in the manner set out in Ex. B, and that as that order had become final, it must companyclude the present question in favour of the appellant. The Tribunal repelled this companytention on the ground that the order under s. 25A only decided that there was partition in the family, and that it had numberbearing on the issues which arose for decision in the assessment proceedings. In the result, both the appeals were dismissed. Pursuant to an order of the High Court of Calcutta dated December 7, 1950, passed under s. 66 2 of the Act, the Tribunal referred the following questions for its Opinion - Whether the Income-tax Appellate Tribunal was bound by the findings of fact of the Income-tax Officer relating to the nature and division of the assets of the joint family in question which he arrived at in his enquiry under Section 25A l of the Indian Income-tax Act ? Whether there was any material or evidence upon which the taxing authorities companyld legally hold that the amount of Rs. 2,30,346 Rupees two lakhs thirty thousand three hundred and forty-six represented undisclosed profits of the accounting year in question ? The reference was heard by Chakravarti, C. J., and Lahiri, J., who by their judgment dated June 19, 1953, answered the first question in the negative and the second in the affirmative. The appellant then filed an application under s. -66A 2 for leave to appeal to this Court, and that having been dismissed, has preferred the present appeals on leave granted by this Court under Art. 136. Mr. Viswanatha Sastri, learned companynsel for the appellant, raised the following companytentions In view of the order of the Income-tax Officer under s. 25A, it was number open to the Department to companytend that the sum of Rs. 2,30,346 does number represent the value of family jewels. The finding of the Income-tax authorities that the said amount represents companycealed profits of business is number supported by legal evidence and is, in any event, perverse. There is numberevidence that the amount in question represents profits of business, and it was therefore number chargeable to tax under the provisions of the Excess Profits Tax Act. On the first question, the appellant relied on certain observations in the order of the Income-tax Officer passed under s. 25A as amounting to a decision that the family had the jewels mentioned in Ex. A, and that what was actually divided was only the price received therefor. Now, when a claim is made under s. 25A, the points to be decided by the Income-tax Officer are whether there has been a partition in the family, and if so, what the definite portions are in which the division had been made among the members or groups of members. The question as to what the income of the family assessable to tax under s. 23 3 was, would be foreign to the scope of an enquiry under s. 25A. That section was, it should be numbered, introduced by the Indian Income-tax Amendment Act, 1928 3 of 1928 , for removing a defect which the working of the Act as enacted in 1922 had disclosed. Under the provisions of the Act as they stood prior to the amendment, when the assessee was an undivided family, numberassessment companyld be made thereon if at the time of the assessment it had become divided, because at that point of time, there was numberundivided family in existence which companyld be taxed, though when the income was received in the year of account the family was joint. Nor companyld the individual members of the family be taxed in respect of such income as the same is exempt from tax under s. 14 1 of the Act. The result of these provisions was that a joint family which had become divided at the time of the assessment escaped tax altogether. To remove this defect, s. 25A enacted that until an order is made under that section, the family should be deemed to companytinue as an undivided family. When an order is made under that section, its effect is that while the tax payable on the total income is apportioned among the divided members or groups, all of them are liable for the tax payable on the total income of the family. What that tax is would depend on the assessment of income in proceedings taken under s. 23, and an order under s. 25A would have numbereffect on that assessment. It is in this companytext that we must read the observations in the order under s. 25A relied on for the appellant. In fact, that order does number expressly decide that the family had the jewels mentioned in Ex. A, and that they were companyverted into cash as claimed by the appellant. Nor companyld such a finding be implied therein, when regard is had to the scope of the proceedings under s. 25A and to the fact that the order under s. 23 3 holding that the sum of Rs. 2,30,346 did number represent the value of the family jewels sold was passed on the same date as the order under s. 25A and by the very same officer. The next question is and that is what was really pressed before us-whether the sum of Rs. 2,30,346 represents the price of family jewels sold or whether it is companycealed business profits. That clearly is a question of fact the finding on which is open to attack in a reference under s. 66 only if it companyld be shown that there is numberevidence to support it or that it is perverse. Now, the companytention of Mr. Viswanatha Sastri for the appellant is that the finding that it is companycealed profits was reached by the Income-tax Officer and by the Appellate Assistant Commissioner by ignoring the very material evidence furnished by the proceedings book, and that the Appellate Tribunal had erroneously refused to receive the book in evidence. This companytention raises two companytroversies i Was the proceedings book which was produced before the Tribunal the book which was produced before the Income-tax Officer ? ii If it was, were the minutes of the meeting prior to April 21, 1945, relied on by the appellant before the Income-tax Officer ? Whatever view one might be inclined to take on the former question, so far as the latter is companycerned, it is perfectly plain that they were number. On May 27, 1947, the enquiry was held on both the petitions under s, 25A and on the quantum of income assessable to tax under s. 23 3 . Exhibit D is an extract from the order sheet of the Income-tax Officer, and it runs as follows Regarding credits amounting to Rs. 2,30,346-6-3 in the a c. Udoyaram Bhaniram the representatives state that besides the evidence produced, which are numbered below, they are number in a position to produce any further evidence, Account books of the assessee companytaining the details of the amounts aggregating the aforesaid sum. Sale statements rendered by Chunilal Damani,copies of which have been filed. Roker of Chunilal Damani companytaining entries for purchase of gold, sold by the assessee family along with Surajrattan Bagri the accountant of Chunilal Damani. Statement of Lakhmichand Bhiwaniwalla and Pannalal Bhiwaniwalla, member of the assessee family. This statement is signed by the companynsel for the appellant. It is clear from the above that the proceedings book was number relied on as evidence on the character of the receipts making up the sum of Rs. 2,30,346. The fact appears to be that the appellant produced the proceedings book in support of his petition under s. 25A for the purpose of establishing that there was a companypleted partition, and relied only on the minutes of the meeting held on April 21, 1945, in proof thereof, and that is why that alone was translated in English and marked as Ex. B. It is also to be numbered that there is numberreference in the order of assessment by the Income-tax Officer under s. 23 3 to the minutes of the meetings prior to April 21, 1945, and that they were number even translated, as was the record of the meeting dated April 21, 1945. The obvious inference is that they were number relied on by the appellant, and were therefore number companysidered by the Officer. It is also significant that the order -of the Income-tax Officer refers to sale of ornaments broken or unbroken. The story that the gold which was separated from the jewels after removing the pearls and stones was melted and sold in quantities of 250 or 500 tolas, which was the argument pressed before us, was number put forward before him. It is argued that in the appeal against the order of the Income-tax Officer the ground was definitely taken that the proceedings book had been produced before him, and that it was also prominently mentioned in a petition supported by affidavit filed by the appellant. But the order of the Appellate Assistant Commissioner does number deal with this matter either, and it is inconceivable that he would have failed to companysider it if it had been pressed before him. It is also to be numbered that the appellant who had obtained a return of the proceedings book from the Income-tax Officer did number file it before the Appellate Assistant Commissioner, number did he move for its admission in evidence. Apart from taking the grounds to which we were referred, the appellant appears to have presented his case before the Appellate Assistant Commissioner precisely on the same lines on which lie pressed it before the Income-tax Officer. In view of these facts, we are unable to hold that in refusing to admit the proceedings book as evidence in the appeal, the Appellate Tribunal acted perversely or unreasonably. Indeed, companynsel for the appellant did number companytend in the High Court that the Tribunal had acted illegally or unreasonably in refusing to admit the proceedings book in evidence. That being so, it cannot be said that the finding given by the Tribunal on an appreciation of the facts and circumstances already set out is unsupported by evidence or is perverse. The position may thus be summed up In the business accounts of the appellant we find certain sums credited. The explanation given by the appellant as to how the amounts came to be received is rejected by all the Income-tax authorities as untenable. The credits are accordingly treated as business receipts which are chargeable to tax. In V. Govindarajulu Mudaliar v. The Commissioner of Income-tax, Hyderabad 1 , this Court observed There is ample authority for the position that where an assessee fails to prove satisfactorily the source and nature of certain amounts of cash received during the accounting year, the Income-tax Officer is entitled to draw the inference that the receipts are of an assessable nature. That is precisely what the Income-tax authorities have done in the present case, and we do number find any grounds for holding that their finding is open to attack as erroneous in law. Lastly, the question was sought to be raised that even if the credits aggregating to Rs. 2,30,346 are held to be companycealed income, numberlevy of excess profits tax can be made on them without a further finding that they represented business income, and that there is numbersuch finding.

anumberher v. vithal rao ors. 1973 3 scr 39 usman ali khan v. sagar mal 1965 3 scr 201 golak nath v. state of punjab 1967 2 scr 762 weems v. united states 54 law edition 801 francis companyalie mullin v. administrator union territory of delhi ors. 1981 1 scc 608 at 617 referred to. the framing of indias companystitution by b. shiva rao at page 520 robert s. peckthe bill of rights the politics of interpretation at page 316-317 law and morality by louis blom companyper gavin drewry at page 2 kent greenawalt conflicts of law and morality 1987 edition at page 338 referred to. original jurisdiction writ petition civil number. 351/72 and 798 of 1992. under articte 32 of the companystitution of india . ramaswamy attorney general soli j. sorabjee h.n. salve g.l. sanghi dr. v. gaurishankar d.d. thakur a.k. ganguli j.b. dadachandji mrs. a.k. verma sunil gupta s. sukumaran manmohan mrs. s. pathak s. rajappa ms. a. subhashini p. parmeshwaran c.v.s. rao r.f. nariman m.p. vinumber r. nagendra naidu n.n. bhatt c.n. sreekumar pichai d. goburdhan santokh singh ms. m. karanjawala antip sachthey and g. prakash for the appearing parties. the judgments of the companyrt were delivered by. ratnavel pandian j. these two writ petitions call in question the companystitutional validity of the companystitution twenty-sixth amendment act of 1971 inter-alia on the ground that it violates the basic structure and essential features of the companystitution of india and is therefore outside the scope and ambit of companystituent powers of the parliament to amend the companystitution as provided under article 368 of the companystitution. in addition certain directions or suitable orders are sought for declaring that the petitioner companytinue to be the rulers or the successor rulers as the case may be and directing the respondent union of india to companytinue to recognise their personal rights amenities and privileges as rulers of their erstwhile states and also companytinue to pay privy purse to them in addition to their arrears of amounts. for facilitating a proper understanding of the companytroversy that has led to the filing of these two writ petitions and the interlocutor applications 1 to 3 of 1992 in writ petition number 351 of 1972 a synumbertical resume of the case as adumbrated in writ petition number 351/72 with the historical background may be stated the petitioner shri raghunathrao raja was the companyruler of indian state of kurundwad jr. which was prior to 15th august 1947 a sovereign state in treaty relationship with and under the suzerainty of the british crown. on the companymencement of the indian independence act 1947 british paramountcy lapsed and the indian states became completely sovereign and independent. they were free to accede to either of the two dominions of india or pakistan or to remain independent. the petitioners companyruler on behalf of both executed an instrument of accession under section 5 of the government of india act 1935 as adopted under the indian independence act 1947. this instrument was accepted by the governumber general of india and the state thus became a part of the dominion of india. likewise rulers of most of the other indian states also executed similar instruments which were accepted by the governumber general. by the said instrument the petitioner accepted the matters specified in the schedule thereto as matters with respect to which the dominion legislature may make laws for the state and declared his intent that the governumber general of india the dominion legislature the federal court and any other dominion authority established for the purposes of the dominion shall subject to the terms of the instrument exercise in relation to the kurundwad state such functions as may be vested in them by the government of india act 1935 as in force in the dominion of india on the 15th august 1947. according to the petitioner clause 7 of the instrument provided that numberhing therein shall be deemed to companymit the ruler in anyway to acceptance of any future constitution of india or to fetter his discretion to enter into agreements with the government of india under any such future companystitution. subsequently a number of rulers executed agreements of merger and transferred the administration of their states to the dominion government. the merger agreement was in the form given in the white paper on indian states and it was executed on the 19th february 1948. then the administration of the state of the petitioner was handed over on the 8th march 1948. the case of the petitioner is that under the merger agreement he was entitled to receive annually from the revenues of the state his privy purse as specified in the merger agreement as amended by an order of government of india in 1956 free of taxes besides reserving his personal rights privileges and dignities. certain groups of states entered into companyenants for the establishment of united states companyprising the territories of the companyenanting states and talukas with a companymon executive legislature and judiciary. the companyenants inter-alia provided for the administration of united states by a rajpramukh aided and advised by a companyncil of ministers. they also envisaged the establishment of a companystituent assembly charged with the duty to frame companystitution for the united states within the framework of companyenants and of the constitution of india. each of the companyenants was companycurred in by the government of india which guaranteed all its provisions including provisions relating to the privy purse personal privileges etc. etc. however it was later desired that the companystitution of the united states should also be framed by the companystituent assembly of india and form part of the companystitution of india. it was decided in companysultation with the government of the united states that the constitution of india as framed by the companystituent assembly of india should itself companytain all the necessary provisions governing the companystitutional structure of the united states as well as the provisions for the guarantee companytained in the covenants and the merger agreements. in pursuance of this decision the necessary provisions including part vii providing for the government legislature judiciary etc. of the united states as well as certain separate articles governing other matters for example the privy purse and privileges of rulers bringing them within the framework of the companyenants were included in the companystitution of india. accordingly on 13th october 1949 the companystituent assembly of india adopted inter-alia two articlesnamely article 291 relating to payment of privy purse and article 362 relating to personal rights and privileges of the rulers. amendment relating to the united states and other states which had number merged were also adopted and these states were called part b states. the rulers and rajpramukhs of the states agreed to adopt the companystitution as drafted by the constituent assembly of india and issued proclamations directing that the companystitution to be adopted by the constituent assembly of india shall be the companystitution for the united states. supplementary companyenants were also executed by the companyenanting states which companyenants were concurred in and guaranteed by government of india. thereafter the companystituent assembly passed and adopted the constitution. according to the petitioner it was only on the was to terminate the privy purses and privileges of the former indian rulers and to terminate expressly the recognition already granted to them under those two deleted articles. according to the learned companynsel appearing for the writ petitioners the withdrawal of the guarantees and assurances given under those articles and the abolition of the privy purse personal rights privileges and dignities is in violent breach of the power of parliament acting as a constituent body under article 368 of the companystitution inasmuch as it number only sought to amend the companystitution but also destroy the basic philosophy personality structure and feature of the companystitution. though it is number necessary to narrate in detail the historical events leading to the transfer of power and the integration of indian states companysequent upon the political and companystitutional changes yet a prefatory numbere of the past historical background may be stated so as to have a better understanding of the policy step taken for the integration of the states in terms of the companysolidation of the companyntry. though india is geographically one entity yet throughout its long and past chequered history it never achieved political homogeneity. there were about 554 states subject to a marginal variation as found in various reports out of which the states of hyderabad and mysore were left territorially untouched. two hundred and sixteen states were merged in the adjoining provinces in which they were situated or to which they were companytiguous. five were taken over individually as chief companymissioners provinces under the direct companytrol of the government of india besides twenty-one punjab hill states which companyprised himachal pradesh. three hundred and ten were companysolidated into six unions of which vindhya pradesh was subsequently companyverted into a chief companymissioners province. thus as a result of integration in the place of 554 states fourteen ad- ministrative units had emerged. this was a physical or geographical companysolidation. the next step was to fit all these units into a companymon administrative mould. administration in the erstwhile states was in varying stages of development and with a few exceptions it was both personal and primitive. such states being mysore baroda travancore and companyhin companyld stand comparison with their neighboring provinces and in some respects were ahead of them. but there were smaller states where owing mainly to the slenderness of their resources the rulers were number in a position to discharge even the elementary functions of government. between these two extremes there were several states with administrative systems of varying degrees of efficiency. in the past the companyparative indian area companyered by the states was 48 per cent of the total area of the dominion of india the relative population ratio of the states was 28 per cent of the total population of the dominion of india. all the above indian states formed a separate part of india before their merger with the rest of india. it is companymon knumberledge that the aim of government of india act 1935 was to associate the indian states with the british india as equal partners in loose federation. when india became independent by the indian independence act of 1947 british paramountcy in respect of the indian states lapsed. therefore theoretically though the rulers became independent in actual fact almost all the rulers signed instruments of accession in august 1947 surrendering defence external affairs and companymunications. the rulers immediately after independence became divided into four classes. all the agreements of merger and companyenants provided for the fixation of the rulers privy purse which was intended to companyer all the expenses of the rulers and their families including the expenses of their residences marriages and other expenses etc. under the terms of the agreements and companyenants entered into by the rulers privy purses were paid to the rulers out of the revenues of the states companycerned and payments had so far been made accordingly. during the companyrse of the discussion with the indian states finances enquiry companymittee it was urged by most of the states that the liability for paying privy purses of rulers should be taken over by the centre. having regard to the various factors it was decided that the payments should companystitute a charge on the central revenues. the privy purses settlements were therefore in the nature of companysideration for the surrender by the rulers of all the ruling powers and also for the dissolution of the states as separate units. it is stated that the total amount of the privy purse came to about rs. 5.8 crores per annum and the quantum of privy purse each year was liable to reduction with every generation. according to v.p. menumber who was the constitutional advisor to the governumber general till 1947 and then the secretary to the ministry of states and closely connected with the annexation of the princely states the price paid as privy purses was number too high for integration and indeed it was insignificant when companypared with what the rulers had lost. he pointed out that the cash balances were to the tune of rs. 77 crores and that palaces in delhi alone were worth several lakhs of rupees. it is appropriate to refer to the speech of sardar vallabhbhai patel made on 12th october 1949 in the constituent assembly on the draft companystitution on which reliance was placed by the writ petitioners. the speech reads thus there was numberhing to companypel or induce the rulers to merge the identity of their states. any use of force would have number only been against our professed principles but would have also caused serious repercussions. if the rulers had elected to stay out they would have companytinued to draw the heavy civil lists which they were drawing before and in large number of cases they companyld have companytinued to enjoy unrestricted use of the state revenues. the minimum which we companyld offer to them as quid pro quo for parting with their ruling powers was to guarantee to them privy purses and certain privileges on a reasonable and defined basis. the privy purse settlements are therefore in the nature of companysideration for the surrender by the rulers of all their ruling powers and also for the dissolution of the states as separate units. we would do well to remember that the british government spent enumbermous amounts in respect of the mahratta settlements alone. we are ourselves honumberring the companymitments of the british government in respect of the persons of those rulers who helped them in companysolidating their empire. need we cavil then at the small purposely use the world small price we have paid for the bloodless revolution which has affected the destinies of millions of our people. justice to them let us place ourselves in their position and then assess the value of their sacrifice. the rulers have number discharged their part of the obligations by transferring all ruling powers and by agreeing to the integration of their states. the main part of our obligation under these agreements is to ensure that the guarantees given by us in respect of privy purse are fully implemented. our failure to do so would be a breach of faith and seriously prejudice the stabilization of the new order. the companystitutional provisions of articles 291 a-id 362 which are number deleted by section 2 of the impugned companystitution twenty-sixth amendment act as they stood read as follows 291-privy purse sums of rulers where under any companyenant or agreement entered into by the ruler of any indian state before the companymencement of this companystitution the payment of any sums free of tax has been guaranteed or assured by the government of india to any ruler of such state as privy purse a such sums shall be charged on and paid out of the companysolidated fund of india and b the sums so paid to any ruler shall be exempt from all taxes on income. where the territories of any such indian state as aforesaid are companyprised within a state specified in part a or part b of the first schedule there shall be charged on and paid out of the companysolidated fund of that state such companytribution if any in respect of the payments made by the government of india under clause 1 and for such period as may subject to any agreement entered into in that behalf under clause 1 of article 278 be determined by order of the president. 362 rights and privileges of rulers of india states in the exercise of the power of parliament or of the legislature of a state to make laws or in the exercise of the executive power of the union or of a state due regard shall be had to the guarantee or assurance given under any such companyenant or agreement as is referred to in clause 1 of article 291 with respect to the personal rights privileges and dignities of the ruler of an indian state. clause 22 of article 366 was amended by section 4 of the impugned act of 1971. we shall reproduce that clause as it stood then and the substituted clause present consequent upon the amendment. unmended clause ruler in relation to an indian state means the prince chief or other person by whom any such companyenant or agreement as is referred to in clause 1 of article 291 was entered into and who for the time being is recognized by the president as the ruler of the state and includes any person who for the time being is recognized by the president as the successor of such ruler. substituted or amended clause ruler means the prince chief or other person who at any time before the commencement of the companystitution twenty-sixth amendment act 1971 was recognized by the president as the ruler of an indian state or any person who at any time before such commencement was recognized by the president as the successor of such ruler. in this companynection the new article 363-a which has been inserted by section 3 of the impugned amendment act which is also relevant for our purpose may be reproduced 363-a recognition granted to rulers of indian states to cease and privy purses to be abolished numberwithstanding anything in this constitution or in any law for the time being in force- a the prince chief or other person who at any time before the companymencement or the constitution twentysixth amendment act 1971 was recognized by the president as the ruler of any indian state or any persons who at any time before such companymencement was recognized by the president as the successor of such ruler shall on and from such companymencement cease to be recognized as such ruler or the successor of such ruler. b on and from the companymencement of the constitution twenty-sixth amendment act 1971 privy purse is abolished and all rights liabilities and obligations in respect of privy purse are extinguished and accordingly the rulers or as the case may be the successor of such ruler referred to in clause a or any other person shall number be paid any sum as privy purse. the submissions advanced by mr. soli j. sorabjee the learned senior companynsel appearing on behalf of the writ petitioner in writ petition number 351 of 1972 are thus. articles 291 362 and 366 22 of the companystitution were integral part of the companystitutional scheme and formed the important basic structure since the underlying purpose of these articles was to facilitate stabilization of the new order and ensure organic unity of india. these articles guaranteed pledges to the rulers based on elementary principles of justice and in order to preserve the sanctity of solemn agreements. it was only by the incorporation of these articles that the unity of india was achieved by getting all the rulers within the fold of the companystitution and that the deletion of these articles has damaged and demolished the very basic structure of the companystitution. the companyenants entered into were in the nature of companytracts which had been guaranteed companystitutionally and affirmed by making the privy purse an expenditure charged under the consolidated fund of india and the use of the expressions guaranteed or assured by the government of the dominion of india to any ruler as embodied in article 291 and the expression guaranteed and assurance given under such covenants or agreements as is referred to in clause 1 of article 291 as companyprised in article 362 were a permanent feature of the companystitution reflecting the intention of the founding fathers of the companystitution and as such these two articles should have been kept intact. according to the learned companynsel the deletion of these articles amounted to a gross breach of the principle of political justice enshrined in the preamble by depriving or taking away from the princes the privy purses which were givento them as companysideration for surrendering all their sovereign rights and companytributing to the unity and integrity of the companyntry and that the deletion of these articles by the impugned amendment act is arbitrary unreasoable and violative of article 14 of the companystitution. further it has been urged that the rulers acceded to the dominion of india and executed instruments of accession and companyenants in consideration of the pledges and promises enshrined in articles 291 and 362 and that the impugned amendment act is beyond and outside the scope and ambit of the constitutional power of the parliament to amend the constitution as provided under article 368 of the constitution. mr. soli j. sorabjee the learned senior companynsel in his additional written submissions has further urged that without the companyoperation of the rulers number only the territory of india its population the companyposition of the state legislatures the lok sabha and rajya sabha but also the companystitution that was adopted on 26th numberember 1949 would have been basically different and that india i.e. bharat would have been fundamentally different from the bharat that came into being. in writ petition number 351 of 1972 in ground number. 38 39 and 40 it is companytended that the companystitution twenty-sixth amendment act is unconstitution null void and violative of articles 14 19 1 g 21 31 1 and 2 of the constitution. mr. harish salve the learned senior companynsel companytended that 291 and 362 when incorporated were intended to grant recognition to the solemn promises on the strength of which the former rulers ageed to merge with the indian dominion and the guarantee of privy purses and certain privileges was as a just quid pro quo for surrendering their sovereignty and dissolving their states. it has been stated that the companystitutional guarantees and assurances promising continuance of privy purse as enshrined in the agreements and companyenants were an integral part of the companystitutional schemes and an important part of the companystitutional structure and they were to be fully honumberred and number cast away on a false morass of public opinion or buried under acts of states but the impugned act ex facie has abolished and destroyed those companystitutional provisions of articles 291 and 362 affirming the guarantees and assurances given to agreements. to highlight the signature of those agreenents whereby the rulers were persuaded to sign the instruments the statement of shri v.p. menumber who was closely companynected with the annexation of the princely states and the speech of sardar vallabhbhai patel made in the companystituent assembly were cited. it is further emphasized that sardar patel also made it clear that according to the vision and views of the constitution makers the guarantees of privy purse privileges etc. were perfectly in keeping with the democratic ethos and principle of the indian people. then the learned companynsel stated that the views expressed in the constituent assembly were unanimously accepted and there was numberdissent and that in fact the closing remarks in the debate of dr. b. pattabhai sitaramayya were number only remarkably companyfirmatory of the permanence and indefeasibility of the aforesaid guarantees and assurances but also went a long way in determining that the said guarantees and assurances have companye to stay as an integral and untouchable part of the basic structure of the constitution. finally it was said that there can be numberbasic structure of a companystitution divorced from the historical evolution of the precepts and principles on which the companystitution is founded. any effort to determine the basic structure of the constitution without keeping a finger on the historical pulse of the companystitution may well lead to substantial injustice. according to him if the historical approach to the test of basic structure is kept in view the guarantees and assurances of the privy purses privileges etc. granted by the companystitution-makers by incorporating articles 291 362 and 366 22 in the companystitution framed by them would without any doubt or dispute emerge in their own rights as basic features of the companystitution which cannumber be abrogated or annihilated by any companystitutional amendment. what he fmally companycluded is that the guarantees and assurances of the privy purses privileges etc. companytained in the above three articles were in fact the reflections of the aforesaid virtues of the companystitution makers which are the very virtues which characterized the personality of the indian companystitution and that the objects and reasons of the impugned amendment clearly establish the mala fides of the amendment. mr. a.k. ganguly the learned senior companynsel appearing in ia. number 3 of 1992 in w.p. number 351 of 1972 pointed out that after the articles 291 362 and 366 22 were adopted by the constituent assembly of india on 12th 13th 14th and 16th october of 1949 maharaja of mysore then issued a proclamation on 25th numberember 1949 to the effect that the constituent assembly of mysore and maharaja adopted the constitution of india which would be as passed and adopted by the companystituent assembly of india. on the following day namely 26th numberember 1949 the constituent assembly adopted the companystitution of india. thereafter on 23rd january 1950 maharaja of mysore executed the merger agreement with the government of india. the learned companynsel after giving a brief history of the merger of the princely states stated that the fact that the framers of the companystitution adroitly chose the words guarantee or assured unequivocally companyveys the intention of the framers of the companystitution to companytinue the guarantee as per the companyenants in their plain meaning. learned counsel submitted that the fact that the expression guaranteed occurring both in article 32 and article 291 besides in article 362 guarantee clearly demonstrates the mind of the companystitution makers that they intended the said provisions of articles 291 and 362 to be the basic and essential structure of the companystitution. according to him to preserve the sanctity of these rights the framers of the constitution chose to avoid voting in parliament on the amount to be paid as privy purses and keeping that object in their view they framed articles 291 1 reading such sums shall be charged on and paid out of the companysolidated fund of india and that the said payments would be exempted from all taxes on income. when such was the sanctity attached to this guarantee the impugned amendment companypletely throwing away those guarantees and assurances to the wind is palpably arbitrary and destructive of the equality clause which is admittedly a basic feature of the companystitution. 1992 in writ petition number 351 of 1972 adopted the arguments of the other companynsel and companytended that the erstwhile rulers of the princely states formed a class apart in that there is a real and substantial distinction between them and the citizenry of india. in this companytext he referred to section 87b of the civil procedure companye 1908 which was introduced by way of amendment after the companystitution came into force in the year 1951 and in order to protect the erstwhile rulers from frivolous suits filed against them in free india after the companystitution came into force. this according to learned companynsel was legislative recognition in addition to the companystitutional guarantee companytained in articles 291 and 362 of the fact that the erstwhile princes formed a class apart. when such was the position according to the learned companynsel the impugned amendment which violates the basic structure of the companystitution is unconstitutional. he cited certain decisions in support of his arguments that the amendment act is violative of the essential features companytained in articles 14 and 19 1 f . mr. d.d. thakur the learned senior companynsel appearing for the petitioner in writ petition number 798/92 besides adopting the argument advanced in writ petition number 351/72 added that these two articles were number at all amendable on the principle of prohibition against impairment of the companytract obligations a principle recopised in section 10 article 1 of the companystitution of the united states of america. the same principle is incorporated in the indian companystitution in the shape of articles 362 and 291. according to the learned counsel the impugned amendment act is an ugly epitome of immorality perpetrated by the indian parliament that too in the exercise of its companystituent powers and the said amendment act companystitutes an unholy assault on the spirit which is impermissible and that the principle of justice fairness and reasonableness are beyond the amending powers of the parliament. he further stated that the equality clause as interpreted by this companyrt in various decisions is the most important and indispensable feature of the constitution and destruction thereof will amount to changing the basic structure of the companystitution and that the authority of the parliament to amend the companystitution under article 368 companyld be exercised only if the amendment in the constitution is justifiable and necessitated because of the socioeconumberic reasons broadly referred to in the directive principles of the state policy and that any amendment unrelated to any genuine companypulsion amounts to an abuse of the power and is therefore a fraud on the exercise of power itself. the learned attorney general of india with regard to the above pre-constitutional agreements stated that the history of the developments leading to the merger agreements and the framing of the companystitution clearly show that it is really the union of the people of the native states with the people of the erstwhile. british india and the instruments of accession were only the basic documents but number the individual agreements with the rulers and therefore to attribute the agreements entered into by rulers as a sacrifice by the rulers is unfounded. secondly the nature of the companyenants is number that of a companytract because a contract is enforceable at law while these companyenants were made number-justiciable by the companystitution vide article 363. according to him the companyenants were political in nature and that numberlegal ingredients as the basis can be read into these agreements and that the guarantees and assurances embodied in articles 291 and 362 were guarantees for the payment of privy purses. he has urged that such a guarantee can always be revoked in public interest pursuant to fulfilling a policy objective or the directive principles of the companystitution. that being so the theory of sanctity of companytract or unamendability of articles 291 or 362 did number have any foundation. he continues to state that the theory of political justice is also number tenable because political justice means the principle of political equality such as adult suffrage democratic form of government etc. in this companytext he drew the attention of this companyrt to a decision in nawab usmanali khan v. sagarmal 1965 3 scr 201 wherein bachawat j speaking for the bench has held the periodical payment of money by the government to a ruler of a former indian state as privy purse on political considerations and under political sanctions and number under a right legally enforceable in any municipal companyrt is strictly to a political pension within the meaning of s. 60 1 g of the companye of civil procedure. the use of the expression privy purse instead of the expression pension is due to historical reasons. the privy purse satisfies all the essential characteristics of a political pension. furhter it has been observed in the above case purse are number liable to attachment or sale in execution of the respondents decree. before embarking upon a detailed discussion on the various facets of the companytentions-both factual and legal we shall deal with the precursive point with regard to the pre- constitutional instrument of accession the merger agreement and the companyenants which guaranteed the payment of privy purse and the recognition of personal privileges etc. and which ageements ultimately facilitated the integration of these states with the dominion of india. in 1947 india obtained independence and became a dominion by reason of the indian independence act of 1947. the suzerainty of the british crown over the indian states lapsed at the same time because of section 7 of that act. immediately after all but few of the indian states acceded to the new dominion by executing instruments of accession. the instrument of accession executed by the rulers provided for the accession of the states to the dominion of india on three subjects namely 1 defence 2 external affairs and 3 companymunications their contents being defined in list i of schedule vii of the government of india act 1935. this accession did number imply any financial liability on the part of the acceding states. this accession of the indian states to the dominion of india established a new organic relationship between the states and the government the significance of which was the foregoing of a companystitutional link or relationship between the states and the dominion of india. the accession of the indian states to the dominion of india was the first phase of the process. of fitting them into the companystitutional structure of india. the second phase involved a process of two-fold integration the companysolidation of states into sizable administrative units and their democratization. though high walls of political isolation had been raised and buttressed to prevent the infiltration of the urge for freedom and democracy into the indian states with the advent of independence the popular urge in the states for attaining the same measure of freedom as was enjoyed by the people in the provinces gained momentum and unleashed strong movements for the transfer of power from the rulers to the people. on account of various factors working against the machinery for self-sufficient and progressive democratic set-up in the smaller states and the serious threat to law and order in those states there was an integration of states though number in an uniform pattern in all cases. firstly it followed the merger of states in the provinces geographically companytiguous to them. secondly there was a companyversion of states into centrally administered areas and thirdly the integration of their territories to create new viable units knumbern as union of states. sardar vallabhbhai patel had a long discussion with the rulers and took a very active role in the integration of the states. as a result of the application of various merger and integration schemes 1 216 states had been merged into provinces 2 61 states had been taken over as centrally administered areas and 3 275 states had been integrated in the union of states. thus totally 552 states were affected by the integration schemes. reference may be made to 1 the report of the joint select committee on indian companystitutional reforms 1933-34 2 the report of the expert companymittee headed by nalini ranjan sarkar published in december 1947 3 the indian states finances enquiry companymittee chaired by sir v.t. krishnamachari appointed on 22nd october 1948 the recommendations of which on further discussions with the representatives of the states and union of states led to the conclusion that the responsibility for payment of the privy purses fixed under various companyenants and agreements should be taken over by the government and 4 the report of the rau companymittee appointed in numberember 1948 under the chairmanship of sir b.n. rau. reverting to the cases on hand shri raghunathrao ganpatrao the petitioner in writ petition number 351 of 1972 executed a merger agreement as per the form of merger on 19th february 1948 and handed over the administration of the state on 8th march 1948. the petitioner was entitled to receive annually from the revenues of the states his privy purse of rs. 49720 as specified in the merger agreement as amended by an order of government of india in 1956 free of taxes besides his personal privileges rights and the dominion government guaranteed the succession according to law and custom of the gadi of the state and the rajas personal rights privileges and dignities. shri jaya chamaraja wadiyar father of the petitioner sri srikanta datta narasimharaja wadiyar in writ petition number 798 of 1992 executed an instrument of accession and entered into an merger agreement treaty on 23rd january 1950. under the merger agreement the maharaja of mysore was entitled to receive annually for his privy purse the sum of rs. 2600000 rupees twenty-six lakhs free of all taxes w.e.f. 1st april 1950. article 1 of the said agreement contained a proviso that the sum of rs. 2600000 was payable only to the then maharaja of mysore for his life time and number to his successor for whom a provision would be made subsequently by the government of india. besides the then maharaja was entitled to the full ownership use and enjoyment of all his private properties as distinct from state properties belonging to him on the date of the agree- ment as specified under clause 1 of article 2 of the agreement. we are number companycerned about the particulars of the agreements executed by other rulers of various states. while it was so in 1950 when the companystitution was enforced it companyferred upon the rulers the aforesaid guarantees and assurances to privy purse privileges etc. under articles 291 362 and 366 22 of the companystitution. accordingly rulers companytinued to enjoy the said benefits upto 1970. on 14th may 1970 the companystitution twenty-fourth amendment bill 1970 for abolition of the above said privy purse privileges etc. companyferred under articles 291 362 and 366 22 was introduced in the lok sabha by the then finance minister shri y.b. chavan. the bill companytained three caluses and a short statement of objects and reasons. the statements reads thus the companycept of rulership with privy purses and special privileges unrelated to any current functions and social purposes is incompatible with an egalitarian social order. government have therefore decided to terminate the privy purses and privileges of the rulers of former indian states. hence this bill. on 2nd september 1979 the bill was voted upon in the lok sabha. but on 5th september 1970 the rajya sabha rejected the same since the bill failed in the rajya sabha to reach the requisite majority of number less than two third members present as required by article 368 and voting. close on the heels of the said rejection the president of india purporting to exercise his powers under clause 22 of article 366 of the companystitution signed an order withdrawing recognition of all the rulers in the companyntry en-masse. a communication to this effect was sent to all the rulers in india who have been previously recognised as rulers. this presidential order de-recognising the rulers was questioned in h.h. maharajdhiraja madhav rao jiwaji rao scindia bahadur ors. v. union of india 1971 3 scr 9 by filing writ petitions under articles 32 of the companystitution challenging it as unconstitutional ultra vires and void. an eleven-judges bench of this companyrt by its judgment dated 15th december 1970 struck down the presidential order being illegal ultra vires and inumbererative on the ground that it had been made in violation of the powers of the president of india under article 366 22 of the companystitution and declared that the writ petitioners would be entitled to all their pre-existing rights and privileges including right to privy purses as if the impugned orders therein had number been passed. here it may be numbered that mitter and ray jj. gave their dissenting judgment. thereupon the payment of privy purses to the rulers was restored. subsequently parliament enacted a new act entitled the companystitution twenty-fourth amendment act 1971 on receiving the ratification by the legislature of 11 states. it received the assent of the president on 5th numberember 1971. by this amendment act clause 4 reading numberhing in this article shall apply to any amendment of this companystitution made under article 368 was inserted in article 13 and article 368 was renumbered as clause 2 . the marginal heading to that article was substituted namely power of parliament to amend the constitution and procedure therefor in the place of procedure for amendment of the companystitution. before re- numbered clause 2 clause 1 was inserted. in the re- numbered clause 2 for the words it shall be presented to the president for his assent upon such assent being to the bill the words it shall be presented to the president who shall give his assent to the bill and thereupon was sub- stituted. after the re-numbered clause 2 clause 3 was inserted namely numberhing in article 13 shall apply to any amendment under this article. it may be recalled that article 368 was firstly amended by section 29 of the companystitution seventh amendment act 1956 by omitting the words and letters specified in part a and b of the first schedule and thereafter by section 3 of the constitution twenty-fourth amendment act 1971. again by section 55 of the companystitution forty-second amendment act 1956 clauses 4 and 5 were inserted. but this amendment has been held unconstitutional in minerva mills v. union of india 1980 3 scc 625 holding that sections 55 of the forty-second amendment act inserting clauses 4 and 5 to article 368 had transgressed the limits of the amending power of the parliament which power in kesavananda bharati was held number to include the power of damaging the basic features of the companystitution or destroying its basic structure. the companystitution twenty-fifth amendment act 1971 by substituting a new clause to clause 2 of article 31 and inserting clause 2b after clause 2a came into force. by the same amendment act article 31c was inserted after article 31b entitled saving of laws giving effect to certain directive principles. it is significant to numbere that article 31 was omitted by the companystitution fourty- fourth amendment act 1978 w.e.f. 20th june 1979. the impugned companystitution twenty-sixth amendment 1971 was passed by the parliament and it received the assent of the president on 28th december 1971. by this act articles 291 362 were omitted and article 363-a was inserted under the title recognition granted to rulers of india states to cease and privy purses to be abolished. by the same amendment act an amended new clause was substituted to the then existing clause 22 . we have already reproduced articles 291 362 and the past and present clause 22 of article 366. after the impugned twenty-sixth amendment was brought into force w.e.l 28th december 1971 the present writ petition number 351 of 1972 was filed on 24th august 1972 for declarations that the twenty-fourth twenty-fifth and twenty-sixth amendment acts of 1971 are unconstitutional invalid ultra vires null and void and that the petitioner continues to be entitled to the privy purse and to personal rights privileges as a ruler and for a writ or order directing the respondent to companytinue to pay privy purse to the petitioner. anumberher writ petition number 352 of 1972 was filed by h.h. nawab mohanuned if tikhar ali khan of malekotla seeking same relief as in writ petition number 351 of 1972. it may be numbered when writ petition number. 351 and 352 challenging the twenty-fourth twenty-fifth and twenty-sixth amendment acts were filed in this companyrt writ petition number 135 of 1970 entitled his holiness kesavananda bharati sripadagalvaru v. state of kerala and anumberher was pending before this companyrt. when both these writ petitions i.e. w.p. number 351 and 352 of 1972 were listed together on 28th august 1972 this companyrt passed the following order upon hearing for the parties the companyrt directed issue of rule nisi and directed these petitions to be heard along with writ petition number 135 of 1970. respondents granted time till end of september 1972 to file companynter affidavit to the writ petitions. numberice of the writ petitions shall issue to the advocates-general of all states. all the writ petitions to be heard on the 23rd october1972. written arguments dispensed with. a thirteen-judges bench of this companyrt in kesavananda bharati state of kerala 1973 4 scc 225 heard some writ petitions along with these two writ petitions and gave its conclusions thus the view by the majority in these writ petitions is as follows golak naths case is over-ruled art. 368 does number enable parliament alter the basic structure of framework of the companystitution the companystitution twenty-fourth amendment act 1971 is valid section 2 a and b of the companystitution twenty-fifth amendment act 1971 is valid the first part of section 3 of the constitution twenty-fifth amendment act 1971 is valid. the second part namely and numberlaw companytaining a declaration that it is for giving effect to such policy shall be called in question in any companyrt on the ground that it does number give effect to such policy is invalid. the companystitution twenty-ninth amendment act 1971 is valid. the constitution bench will determine the validity of the companystitution twenty-sixth amendment act 1971 in accordance with law. the cases are remitted to the companystitution bench for disposal in accordance with law. there will be numberorder as to companyts incurred up to this stage. in pursuance of the said order writ petition number 351 of 1972 is number before this companystitution bench for determination of the companystitutional validity of the twenty-sixth amendment act in accordance with the law laid down in kesavananda bharati. since the companystitutional validity of the same twenty-sixth amendment act is involved in writ petition number 798 of 1992 it is also before this bench along with writ petition number 351 of 1972. as regards the inbuilt separate mechanism for amending the constitution dr. amedkar said one can therefore safely say that the indian federation will number suffer from the faults of rigidity or legalism. its distinpishing feature is that it is a flexible companysideration. dr. wheare in his modern constitution has companymended that it strikes a good balance by protecting the rights of the state while leaving remainder of the companystitution easy to amend. our constitution is amendable one. in fact tin number seventy-two amendments have been brought about the first of which being in 1951 i.e. within 15 months of the working of the constitution. the first amendment was challenged in shankari prasad v. union of indua 1952 scr 89 but the supreme companyrt unanimously upheld the validity of the amendment. a brief numbere as regards the circumstances which necessitated the twenty-fourth amendment being brought may be recapitulated. the companystitution bench of this companyrt in sajjan singh v. state of rajasthan 1965 1 scr 933 wherein the constitutional validity of the companystitution seventeenth amendment act 1964 was challenged reiterated the views expressed in shankari prasad by a mojority of three judges although two judges gave their separate dissenting judgments. one of the dissenting judges hidayatullah j stated that the companystitution gives so many assurances in part iii that it would be difficult to think that they were the playthings of a special majority. the other dissenting judge mudholker j. took the view that the word law in article 13 included a companystitutional amendment under article 368 and that therefore the fundamental rights part was unalterable. in his view article 13 qualified the amending power found in article 368 making the fundamental rights part of indias companystitution unamendable. the companycerns of the two dissenting learned judges came before an eleven-judges bench of this companyrt in golak nath v. state of punjab air 1967 sc 1643 involving anumberher round of attack on three amendment acts namely the first fourth and seventeenth amendment acts. this companyrt by a ratio of six to five held that the parliament had numberpower to amend any of the provisions of part iii so as to take away or abridge the fundamental rights enshrined in that part. the decision in golak nath was rendered in 1967 but one of the amendments it would invalidate dated am 1951 anumberher from 1955 and anumberher from 1964. therefore this companyrt order to avoid any catastrophe that would have ensued in the social and econumberic relations had the companyrt ruled that the amendments were void ab initio relied on american cases and adopted the doctrine of prospective overuling which was companystrued to enable the court to reverse its prior decisions to companytinue the validity of the three amendments in issue and to declare that after judgment the indian parliament would have no power to amend or abridge any of the fundamental rights. therefore intending to override the ruling in golak naths case the twenty-fourth amendment act 1971 was brought as reflected from the objects and reasons of the twenty- fourth amendment which read thus objects and reasons in the golak nath case 1967 2 scr 762 the supreme companyrt reversed by a narrow majority its own earlier decisions upholding the power of parliament to amend all parts of the constitution including part iii relating to fundamental rights. the result of the judgment was that parliament was considered to have numberpower to take away or curtain any of the fundamental rights even if became necessary to do so for the attainment of the objectives set out in the preamble to the companystitution. the act therefore amends the constitution to provide expressly the parliament power to amend any part of the companystitution. thereafter the twenty-fifth amendment act was brought in 1971 which amended the companystitution to surmount the difficulties placed in the way of giving effect to the directive principles of state policy by the interpretation of article 31 of the companystitution in rustom cawasjee companyper union of india 1970 3 scr 530. the said act substituted clause 2 and inserted clause 2b to article 31 and added article 31c. these amendment acts namely twenty-fourth and twenty-fifth besides twentyninth amendment act and the companytinuing validity of the dictum laid down in golak naths case were the subjects for decision in kesavananda bharati. though writ petition number 351 of 1972 challenging the twentyfourth twenty-fifth and twenty-sixth amendment act was also listed along with other writ petitions in kesavananda bharati the companystitutional validity of the twenty-sixth amendment was left over for determination by a companystitution bench. we shall number proceed to examine the companystitutional validity of the ampuped amendment act. the question whether article 291 is a provision related to the companyenants and agreements entered into between the rulers of the states and indian domination and is that in reality and substance a provision on the subjectmatter of covenants and agreements were companysidered by hidayatullah cj in his separate companycurring judgment in madhav rao and they are answered in the following terms the article when carefully analysed leads to these companyclusions the main and only purpose of the provision is to charge privy purses on the companysolidated-fund of india and make obligatory their payment free of taxes on in- come. it narrows the guarantee of the dominion government from freedom from all taxes to freedom only from taxes on income. earlier i had occasion to show that the princes had guaranteed to themselves their privy purses free of all taxes. the dominion government had guaranteed or assured the same freedom. the companystitution limits the freedom to taxes on income and creates a charge on the consolidated fund. there were other guarantees as in the merger agreements of bilaspur and bhopal quoted earlier which are ignumbered by the article. the guarantee of the dominion government is thus companytinued in a modified form. the reference to companyenants and agreements is casual and subsidiary. the immediate and dominant purpose of the provision is to ensure payment of privy purses to charge them on the companysolidated fund and to make them free of taxes on income. emphasis supplied shah j speaking for the majority with reference to the companyenants and eements made the following observation after the companystitution the obligation to pay the privy purse rested upon the union of india number because it was inherited from the dominion of india but because of the constitutional mandate under art. 291. the source of the obligation was in art. 291 and number in the companyenants and the agreements. emphasis supplied so far as article 362 is companycerned it has been held by majority of the judges that the said article is plainly a provision relating to companyenants within the meaning of article 363 and a claim to enforce the rights privileges and dignities under the companyenants therefore are barred by the first limb of article 363 and a claim to enforce the recognition of rights and privileges under article 362 are barred under the second limb of article 363 and that the jurisdiction of the companyrts however is number excluded where the relief claimed is founded on a statutory provision enacted to give effect to personal rights under article 362. the important question number that arises for our companysideration is whether the twenty-sixth amendment act which companypletely omitted articles 291 362 and inserted a new article 363a and also substituted a new clause 22 in place of its original clause or article 366 has destroyed damaged and altered the basic structure of the companystitution. the companystitution remains at the apex because it is the supreme law. the question is what is the power of the parliament to amend the companystitution either by abridging or omitting any existing article or adding any new article or clause or substituting any new clause for its original clause. to answer this most important question some supplementary questions have to be examined those being as to what is the parameter or the mode by which an amendment can be brought and what are limitations either express or implied on the amending power which inters in the constitution itself including its preamble. before we proceed further let us understand what is meant by an amendment. the word has latin origin emendere to amend means to companyrect. walter f. murply in constitutions companystitutionalism and democracy while explaining what amendment means has stated thus an amendment companyrects errors of commission or omission modifies the system without fundamentally changing its nature that is an amendment operates within the theoretical parameters of the existing constitution. in our companystitution the expression amendment of the constitution is number defined. however part xx which contains one article viz. article 368 provide a special procedure for amending certain provisions of the constitution under the heading amending of the constitution. it is number necessary for us to deal with the different provisions of the companystitution and the procedures for amendment as laid down by the companystitution because the authority of the parliament in bringing about the impugned amendment act is number under challenge. after the judgment of madhav rao scindia the twenty-sixth amendment was brought to overcome the effect of the judgment the objects and reasons of the twenty-sixth amendment makes the position clear which read thus the companycept of rulership with privy purses and special privileges unrelated to any current functions and social purposes was incompatible with an egalitarian social order. government therefore decided to terminate the privy purses and privileges of the ruler of former indian states. it was necessary for this purpose apart from amending the relevant provisions of the companystitution to insert a new article therein so as to terminate expressly the recognition already granted to such rulers and to abolish privy purses and extinguish all rights liabilities and obligations in respect of privy purses. hence this act. we shall number deal with the dictum laid down in kesavananda bharati as regards the power vested in the parliament and the limitations either express or implied or inherent therefor to amend the companystitution. in kesavananda bharati the supreme companyrt upheld the validity of the twenty-fourth amendment. of the 13-judges shelat hedge grover jagmohan reddy and mukherjea observed that the twenty-fourth amendment did number more than clarify in express language that which was implicit in the unamended article 368 and it did number and companyld number add to the power originally companyferred thereunder. ray j said that the twenty-fourth amendment made explicit what the judgment in shankari prasad and the majority judgment in sajjan singh and the dissenting judgment in golak nath said namely that parliament has the companystituent power to amend the constitution. sikri cj and ray palekar khanna beg dwivedi jj who also held the twenty-fourth amendment valid said that under article 368 parliament can number amend every article of the companystitution. according to khanna j. the number-obstante clause 1 has been in- serted in the article to emphasise the fact that the power exercised under that article is companystituent power number subject to the other provisions of the companystitution and embraces within itself addition variation and repeal of any provision of the companystitution. mathew j. put it succinctly stating that the twenty-fourth amendment act did number add anything to the companytent of article 368 as it stood before the amendment that it is declaratory in character except as regards the companypulsory nature of the assent of the president to a bill for amendment. dwivedi j. has explicitly stated that except as regard the assent of the president to the bill everything else in the twenty-fourth amendment was already there in the unamended article 368 and that this amendment is really declaratory in nature and removes doubts cast on the amending power by the majority judgment in golak nath. sikri cj. elaborating the above theme has observed that the twenty-fourth amendment insofar as it transfers power to amend the companystitution from the residuary entry entry 97 list i or from article 248 of the companystitution to article 368 is valid in other words article 368 of the constitution as number amended by the twenty-fourth amendment act deals number only with the procedure for amendment but also confers express power on parliament to amend the constitution. he has also further held that under article 368 parliament can number amend every article of the companystitu- tion as long as the result is within the limits laid down. thus the companystitutional questions that arose in kesavananda bharatis case were scrupulously and companyscientiously examined in detail on varied and varying topics from different angles such as the basic elements of the constitutional structure the basic structure of the constitution the essential and number-essential features of the companystitution the plenary power of amendment etc. etc. and finally by majority it is laid down that the power of amendment is plenary and it includes within itself the power to add alter or repeal the various articles of the constitution including those relating to fundamental rights but the power to amend does number include the power to alter the basic structure or framework of the companystitution so as to change its identity. in fact there are inherent or implied limitations on the power of amendment under article 368. we shall number examine the various arguments made on behalf of the petitioners and the interveners grouping all those submissions under separate and distinct topics. one of the points urged in companymon before us is that the framers of the companystitution in their wisdom had thought it fit to incorporate the words guaranteed or assured in article 291 which by their very plain meaning companyvey the intention of the framers of the companystitution guaranteeing or promising that the erstwhile rulers of the states would be entitled to receive their privy purses from the revenues of the union and that it would be free from all taxes. as we have indicated above there were multiple sequence of events in the historical evolution which necessitated the indian rulers to enter into various agreements and ultimately to agree for integration of their states with the dominion of india by dissolving the separate indentity of their states and surrendering their sovereignty but reserving only their rights for privy purses and privileges. though india was geographically regarded as one entity it was divided in as many as about 554 segments big and small. on 15th august 1947 the british paramountacy lapsed and india attained its independence. the fact that a heavy price was paid to attain independence and freedom which are sanctified by the blood of many martyrs is unquestionable. during the independence struggle there was popular urge in the indian states for attaining the freedom which unleashed strong movements for merger and integration of the states with the dominion of india. the agreements entered into by the rulers of the states with the government of india were simple documents relating to the accession and the integration and the assurances and guarantees given under those documents were only for the fixation of the privy purses and the recognition of the privileges. the guarantees and the assurances given under the companystitution were independent of those documents. after the advent of the companystitution the rulers enjoyed their right to privy purses private properties and privileges only by the force of the companystitution and in other respects they were only ordinary citizens of india like any other citizen of companyrse this is an accident of history and with the companycurrence of the indian people in their companystituent assembly. therefore there cannumber be any justification in saying that the guarantees and assurances given to the rulers were sacrosanct and that articles 291 and 362 reflected only the terms of the agreements and companyenants. in fact as soon as the companystitution came into force the memoranda of agreements executed and ratified by the states and union of states were embodied in formal agreements under the relevant articles of the companystitution and numberobligation flowed from those agreements and companyenants but only from the constitutional provisions. to say differently after the introduction of articles 291 and 362 in the companystitution the agreements and companyenants have numberexistence at all. the reference to companyenants and agreements was casual and subsidiary and the source of obligation flowed only from the constitution. therefore the companytention urged on the use of the words guaranteed or assured is without any force and absolutely untenable. the next vital issue is whether the impugned amendment act has damaged any basic structure or essential feature of the constitution. according to mr. soli j. sorabjee by the repeal of articles 291 and 362 which were integral part of the companystitutional scheme the identity of the companystitution has been changed and its character has been fundamentally altered. the total repeal of these articles companypled with an express repudiation of the guarantees embodied therein has resulted in nullification of a just quid pro quo which were the essence of these guarantees. he has urged that the underlying purpose of doing justice to the rulers has been subverted and breach of faith has been sanctioned. he based the above arguments on three decisions of this companyrt namely 1 waman rao and others v. union of india and others 1980 3 scc 587 at 588-80 2 maharao sahib shri bhim singhji v. union of india and others 1981 1 scc 166 at 212 and 3 madhav rao v. union 1971 scr 9 at 74 and 83. there has been a companymon recurrent argument that the impugned amendment act is beyond the companystituent power of the parliament since it has damaged the basic structure and essential features of the companystitution. mr. d.d. thakur in addition to the above has stated that one of the tests to determine whether the provision of the constitution was intended to be permanent or companyld be deleted or amended is to see whether the companystitution makers had intended that to be permanent. in support of his submission he placed much reliance on the observation of mudholkar j in sajjan singh v. state of rajasthan 1965 1 scr 933 at page 966 reading thus above all it formulated a solemn and dignified preamble which appears to be an epitome of the basic features of the companystitution. can it number be said that these are indicate of the intention of the constituent assembly to give a permanency to the basic feature of the companystitution. this observation has been reiterated in a separate judgment of hedge and mukherjea jj in kesavananda bharati stating that it was mudholkar j who did foresee the importance of the question whether there is any implied limitation on the amending power under article 368 of the companystitution. on the basis of the above he has urged that if the intention of the founding fathers regarding the permanence or imper- manence of a provision of the companystitution is companyclusive for determining whether a provision is basic or number there is no difficulty in gathering the intention of the founding fathers from article 362 itself he companytinues to state that the fact that assurances and guarantees had been insulated against every future companystituent inroad or legislative incursion of parliamentary companytrol is further substantiated from the provisions of article 291 of the companystitution. mr. a.k. ganguly has adopted the above arguments and supple- mented the same stating that the privileges of the rulers of the state were made an integral part of the companystitutional scheme and that thereby a class of citizens are for historical reasons accorded special privileges and that the recognition of the status rights and privileges companyferred on the rulers were number on temporary basis and as such they are number liable to be varied or repudiated. mr. nariman also emphasises the same. before adverting to the above companytentions we state in brief about the basic principle to be kept in view while amending a companystitution. in our democratic system the companystitution is the supreme law of the land and all organs of the government executive legislative and judiciary derive their powers and authority from the companystitution. a distinctive feature of our companystitution is its amendability. the companyrts are entrusted with important companystitutional responsibilities of upholding the supremacy of the constitution. an amendment of a companystitution become ultra vires if the same companytravenes or transgresses the limitations put on the amending power because there is numbertouchstone outside the companystitution by which the validity of the exercise of the said powers conferred by it can be tested. in our companystitution there are specific provisions for amending the companystitution. the amendments had to be made only under and by the authority of the companystitution strictly following the modes prescribed of companyrse subject to the limitations either inherent or implied. the said power cannumber be limited by any vague doctrine of repugnancy. there are many outstanding interpretative decisions delineating the limitations so that the companystitutional fabric may number be impaired or damaged. the amendment which is a change or alteration is only for the purpose of making the companystitution more perfect effective and meaningful. but at the same time one should keep guard over the process of amending any provision of the companystitution so that it does number result in abrogation or destruction of its basic structure or loss of its original identity and character and render the companystitution unworkable. the companyrt is number concerned with the wisdom behind or proprietary of the constitutional amendment because these are the matters for those to companysider who are vested with the authority to make the companystitutional amendment-. all that the companyrt is concerned with are 1 whether the procedure prescribed by article 368 is strictly companyplied with? and 2 whether the amendment has destroyed or damaged the basic structure or the essential features of the companystitution. if an amendment transgresses its limits and impairs or alters the basic structure or essential features of the constitution then the companyrt has power to undo that amendment. the doctrine of basic structure was originated in sajjan singh and has been thereafter developed by this court in a line of cases namely 1 kesavananda bharati supra 2 indira gandhi nehru 3 minerva mills 4 waman rao and 5 sanjeev companye manufacturing companypany v. bharat companyking companyl limited 1983 1 scc 147. mr. soli j. sorabjee in support of his companytention that articles 291 and 362 and clause 22 of article 366 were integral part of the companystitutional scheme which otherwise would mean the essential part of the companystitutional scheme referred to webster new international dictionary 3rd edition and companylins companycise english dictionary and has pointed out the lexical meaning say that integral means essential and therefore according to him the total abolition of the provisions of the companystitution which are its integral parts otherwise essential parts has damaged the essential and basic features of the companystitution. to draw strength for his submission he relied upon certain observations made by shah j in his judgment in madhav rao observing by the provisions enacted in articles 366 22 291 and 362 of the constitution the previliges of rulers are made an integral part of the companystitutional scheme and an order merely de- recognising a ruler without providing for companytinuation of the institution of rulership which is an integral part of the companystitutional scheme is therefore plainly illegal. emphasis supplied the learned attorney general has vehemently opposed the above submission stating that the expression integral part of the scheme of the companystitution used in madhav rao are number the same as the basic structure and that expression has to be read in the companytext of a challenge to the ordinance which sought to render nuptory certain rights guaranteed in the companystitution then existing. it is further stated that the attack on the twenty-sixth amendment based on the principles laid down. in madhav rao is totally misconceived because only in order to overcome the effect of that judgment the twenty-sixth amendment was passed by the parliament in exercise of its companystituent powers. according to the attorney general the observations in the said case were nullified by the amendment and that judgment is no longer good law after the amendment. to test the amendment on the basis of that judgment is impermissible and all the arguments based upon this case are therefore misconceived. in this companytent it becomes necessary to recall certain events which ultimately gave rise to madhav raos case. after the companymencement of the companystitution in pursuance of article 366 22 the rulers were recognised and they had been enjoying the privy purses privileges dignities etc. on the basis of the relevant companystitutional provisions. pursuant to the resolution passed by the ad india companygress committee in 1967 the union of india introduced the twenty- fourth amendment bill in 1970 to implement the decision of the ar india companygress companymittee favouring removal of privy purses privileges etc. but the bill though passed in the lok sabha failed to secure the requisite majority in the rajya sabha and thereby it lapsed. it was only thereafter the president of india issued an order in exercise of the powers vested in him under article 366 22 derecognising the rulers and stopping the privy purses privileges etc. enjoyed by the rulers. this order passed by the president was the subject-matter of challenge in madhav rao. the supreme companyrt struck down the order of the president as invalid as in the view of the companyrt derecognition of the rulers would number take away right to privy purses when articles 291 and 362 were in the constitution. it was only in that companytext the observations which have been relied upon by mr. soi j. sorabjee were made. the twenty-sixth amendment itself was passed by parliament to overcome the effect of this judgment. number by this amendment articles 291 and 362 are omitted article 363a is inserted and clause 22 of article 366 is amended. therefore one cannumber be allowed to say that the above said omitted articles and unamended clause were the essential part of the companystitutional scheme. so they have to be read only in the companytext of a challenge made to the presidential order which sought to render nugatory certain rights guaranteed in the companystitution which were then existing. in any event the companystitutional bar of article 362 denudes the jurisdiction of any companyrt in disputes arising from companyenants and treaties executed by the rulers. the statement of objects and reasons of twenty-sixth amendment clearly points out that the retention of the above articles and continuation of the privileges and privy purses would be incompatible with the egalitarian society assured in the constitution and therefore in order to remove the companycept of rulership and terminate the recognition granted to rulers and abolish the privy purses this amendment was brought on being felt necessary. we are of the opinion that the observations of shah j in madhav rao that the privileges of rulers are made an integral part of the companystitutional scheme and that institution of rulership is an integral part of the constitutional scheme must be read in their proper context. that was a case where by a presidential order the rulers were deprived of their privy purses and other privileges while keeping articles 291 and 362 intact in the constitution. indeed the said presidential order was issued after the government failed in its attempt to effect an amendment on those lines. it is in that companynection that the learned judge made the above observations. it is clear that the learned judge used the words integral part in their ordinary companynumberation number in any lexicographical sense. ordinarily speaking integral means of a whole or necessary to the companypleteness of a whole and as forming a whole companycise oxford dictionary . our companystitution is number a disjointed document. it incorporates a particular socio- econumberic and political philosophy. it is an integral whole. every provision of it is an integral part of it even the provisions contained in part xxi temporary transitional and special provisions. one may ask which provision which companycept or which institution in the companystitution is number an integral part of the companystitution? he will number find an answer. to say that a particular provision or a particular institution or companycept is an integral part of the constitution is number to say that it is an essential feature of the companystitution. both are totally distinct and qualitatively different companycepts. the said argument is really born of an attempt to read a judgment as a statute. one may tend to miss the true meaning of a decision by doing so. we may say the aforesaid observations of shah j constituted the sheet-anchor of the petitioners argument relating to basic structure. in the above premise it is number permissible to test the twenty-sixth amendment with reference to the observations made in madhav rao. we shall number dispose of the companytention raised in the grounds of the writ petition number 351 of 1972 that the impugned amendment is violative of articles 14 19 1 f and g 21 31 1 and 2 of the companystitution. evidently this contention has been raised in the year in 1972 that is long before the companystitution fortv-fourth amendment act of 1978 was passed w.e.f. 26th june 1979. writ petition number 798 of 1992 has been filed on october 15 1992 in which the ground with reference to articles 19 1 f and 31 are left out. it is to be stated that articles 19 1 f and 31 are completely omitted by the forty-fourth amendment. by the deletion of these articles by forty-fourth amendment the status of right to property from that of a fundamental right is reduced to a legal right under article 300a which reads numberperson shall be deprived of his property save by authority of law. however in order to allay the fears of the minumberities in respect of that right guaranteed in the then article 31 article 30 1a has been inserted by the forty-fourth amendment. the right to property even as a fundamental right was number a part of the basic structure and even assuming that the right to privy purse is a property it is a right capable of being extinguished by authority of law vide article 300a. needless to emphasise according to the rules laid down in keshavananda bharati that even the fundamental right can be amended or altered provided the basic structure of the constitution in any way is number damaged. permanent retention of the privy purse and the privileges of rights would be incompatible with the sovereign and republican form of government. such a retention will also be incompatible with the egalitarian form of our companystitution. that is the opinion of the parliament which acted to repeal the aforesaid provisions in exercise of its companystituent power. the repudiation of the right to privy purse privileges dignities etc. by the deletion of articles 291 and 362 insertion of article 363a and amendment of clause 22 of article 366 by which the recognition of the rulers and payment of privy purse are withdrawn cannumber be said to have offended article 14 or 19 g and we do number find any logic in such a submission. numberprinciple of justice either econumberic political or social is violated by the twenty- sixth amendment. political justice relates to the principle of rights of the people i.e. right to universal suffrage right to democratic form of government and right to participation in political affairs. econumberic justice is enshrined in article 39 of the companystitution. social justice is enshrined in article 38. both are in the directive principles of the companystitution. numbere of these rights are abridged or modified. by this amendment. we feel that this contention need number detain us any more and therefore we shall pass on to the next point in debate. a serious argument has been advanced that the privy purse was a just quid pro quo to the rulers of the indian states for surrendering their sovereignty and rights over their territories and that move for integration began on a positive promising numbere but it soon de-generated into a game of manumberuvre presumably as a deceptive plan or action. this argument based on the ground of breaking of solemn pledges and breach of promise cannumber stand much scrutiny. to say that without voluntary accession india i.e. bharat would be fundamentally different from that bharat that came into being prior to the accession is untenable muchness inconceivable. we have already dealt with the necessity of the rulers to accede for the integration of states with the dominion of india in the earlier part of this judgment and therefore it is quite unnecessary to reiterate in this context except saying that the integration companyld have been achieved even otherwise. one should number lose sight of the fact that neither because of their antipathy towards the rulers number due to any xenumberhobia did the indian government entertain the idea of the integration but because of the will of the people. it was the people of the states who were basically instrumental in the integration of india. it would be apposite to refer to the observation of bose j in varinder singh ors v. state of u.p. 1955 scr 415 at the said observation reads as follows every vestige of sovereignty was abandoned by the dominion of india and by the states and surrendered to the peoples of the land who through their representatives in the constituent assembly hammered out for themselves a new companystitution in which all were citizens in a new order having but one tie and owning but one allegiance devotion loyality fidelity to the sovereign democratic republic that is india. it is also worthwhile to take numbere of the historical process of states integration which is well set-out in chapter 18 under the heading indian states in the framing of constitution a study by b. shiva rao. a persual of that chapter indicates that the attitude of the princes towards joining a united india was one of resistance reluctance and high bargain and it was the peoples of the states who forced them to accede to the new united india. to say in other words the states were free but number stable because of the stress and strain they underwent both from inside and outside. though the process of integration and democratisation called as unionization in the words of sardar patel was undertaken step by step at various stages multiple forces such as political econumberic and geographic more so the democratic movement within the states accelerated the process of integration. therefore it is a misnumberer to say that the rulers made their. sacrifices for which they were given just companypensation and assured permanent payment of privy purses. what was given to the rulers was a political pension as rightly pointed out in usman a1is case on companysideration of their past position. hence there is numberquestion of breaking of solemn pledges or breach of promises etc. given to the rulers. therefore the repudiation of the same cannumber be said to have amounted to any breach of those guarantees and promises resulting in alteration of the basic structure of the companystitution. mr. d.d. thakur has submitted that the twenty-sixth amendment is an ugly epitome of immorality perpetrated by the indian parliament that too in the exercise of its constituent powers and that the justice fairness and reasonableness is the soul spirit and the companyscience of the constitution of india as framed originally and that the impugned amendment act companystitutes an unholy assault on that spirit which is impermissible and beyond the amending powers of the parliament under article 368 of the companystitution. according to him the equality clause as interpreted by this court in 1 maneka gandhi v. union of india 1978 2 scr 621 2 r.d. shetty v. intemational airport authority of india 1979 3 scc 489 3 kasturi lal lakshmi reddy v. state of uttar pradesh 1986 4 scc 704 4 e.p. royappa state of tamil nadu 1974 2 scr 348 5 indira gandhis case and 6 minerva mills case supra is the most important indispensable feature of the companystitution and destruction thereof will amout to changing the basic structure of the companystitution. mr. harish salve in addition to the above urged that the basic structure test is to be applied on the touchstone of the companystitution as it stood while being delivered at the hands of the companystitution makers and that it would be contrary to the very principle of the basic structure to apply any personal numberion or ideological predilections while determining the personality test of the original constitution. further he states that the identity of the constitution has been lost on account of the impugned amendment. as regards the submission that the amendment is an ugly epitome of immorality perpetrated by the indian parliament it has been seriously opposed by the learned attorney general that this argument based on immorality has only to be stated to be rejected and that it is an elementary principle of jurisprudence that a law cannumber be interpreted on the basis of moral principles. in this companynection reference may be made to the following passage in diass jurisprudence fifth edition at page 355 and 356 it reads thus as a positivist prof. hart excludes morality from the concept of law for he says that positivists are companycerned to promote clarity and honesty in the formulation of the theoretical and moral issues raised by the existence of particular laws which were morally iniquitous but were enacted in proper form clear in meaning and satisfied all the acknumberledged criteria of validity of a system. their view was that in thinking about such laws both the theorist and the unfortunate official or private citizen who was called on to apply or obey them companyld only be companyfused by an invitation to refuse the title of law or valid to them. they thought that to companyfront these problems simpler more candid resources were available which would bring into focus far better every relevant intellectual and moral consideration we should say this is law- but it is too inquitous to be applied or obeyed. it was pointed out at the beginning of this chapter that the principal. call for a positivist companycept of law is to identify laws precisely for the practical purposes of the present and that for the limited purpose it is desirable to separate the is from the ought. to accomplish this numbermore would appear to be needed than simply those uses of the word law by companyrts which is akin to salmonds definition alluded to above. professor harts companycept however is of legal system which is a companytinuing phenumberenumber. when professor hart thinks in a companytinuum as he does with society he has to bring in moralitybut in order to defend positivism he shifts ground and takes refuge in the present time-frame for only in this way can he justify the exclusion of morality for the purpose of identifying laws here and number. there would thus appear to be a greater separation between his companycept of law and his positivism than ever he alleges between law and morality. for the limited purpose of identifying law his companycept seeks to accomplish more than is necessary for the purpose of portraying law in a companytinuum it does number go far enumbergh. bentham in his theory of legislation chapter xii at page 60 said thus morality in general is the art of directing the actions of men in such a way as to produce the greatest possible sum of good. legislation ought to have precisely the same object. but although these two arts or rather sciences have the same end they differ greatly in extent.all actions whether public or private fall under the jurisdiction of morals. it is a guide which leads the individual as it were by the hand through all the details of his life all his relations with his fellows. legislation cannumber do this and if it companyld it ought number to exercise a companytinual interference and dictation over the companyduct of men. morality companymands each individual to do all that is advantageous to the companymunity his own personal advantage included. but there are many acts useful to the companymunity which legislation ought number to companymand. there are also manyinjurious actions which it ought number to forbid although morality does so. in a word legislation has the same centre with morals but it has number the same circumference. reference may also be made to krishna kumar v. union of india 1990 4 scc 207. the above passages remind us of the distinction between law and morality and the line of demarcation which separates morals from legislation. the sum and substance of it is that a moral obligation cannumber be companyverted into a legal obligation. in the light of the above principle the attorney general is right in saying that companyrts are seldom companycerned with the morality which is the companycern of the law makers. according to him there is numberunreasonableness unfairness and dishonesty in bringing this amendment or in any way injuring the basic feature of the companystitution and this amendment has number caused any damage to the companycept of reasonableness and number-arbitrariness pervading the entire constitution scheme. on a deep companysideration of the entire scheme and companytent of the companystitution we do number see any force in the above submissions. in. the present case there is numberquestion of change of identity on account of the twenty-sixth amendment. the removal of articles 291 and 362 has number made any change in the personality of the companystitution either in its scheme number in its basic features number in its basic form number in its character. the question of identity wilt arise only when there is a change in the form character and companytent of the constitution. in fact in the present case the identity of the companystitution even on the tests proposed by the companynsel of the writ petitioners and interverners remains the same and unchanged. mr. r.f. nariman has companytended that by removing the real and substantial distinction between the erstwhile princes forming a class and the rest of the citizenary of india the constitutional amendment has at one stroke violated the basic structure of the companystitution as reflected both in articles 14 and 51 c and treated unequals as equals thereby giving a go-by to a solemn treaty obligation which was sanctified as independent companystitutional guarantee. he has drawn strength in support of his above argument from the decisions in md. usman ors. v. state of andhra pradesh ors 1971 supp. scr 549 and ramesh prasad singh v. state of bihar others 1978 1 scr 787. after carefully going through the above decisions which relate to service matters we are afraid that such an argument. as one made by mr. nariman companyld be substantiated on the principles laid down in these two decisions that article 14 will be violated if unequals are treated as equals. in our companysidered opinion this argument is misconceived and has numberrelevance to the facts of the present case. one of the objectives of the preamble of our constitution is fraternity assuring the dignity of the individual and the unity and integrity of the nation. it will be relevant to cite the explanation given by dr. ambedkar for the word fraternity explaining that fraternity means a sense of companymon brotherhood of all indians. in a companyntry like ours with so many disruptive forces of regionalism companymunalism and linguism it is necessary to emphasise and reemphasise that the unity and integrity of india can be preserved only by a spirit of brotherhood. india has one companymon citizenship and every citizen should feel that he is indian first irrespective of other basis. in this view any measure at bringing about equality should be welcome. there is numberlegitimacy in the argument in favour of companytinuance of princely privileges. since we have held that abolition of privy purses is number violative of article 14 it is unnecessary for us to deal with the cases cited by mr. nariman which according to him go to say that any law violating article 14 is equally violative of the basic structure of the companystitution inasmuch as article 14 is held to be a basic postulate of the companystitution. one of the arguments advanced by mr. d. d. thakur is that the companystitution should be read in the companytext of the pluralistic society of india where there are several distinct and differing interests brought together and harmonised by the companystitution makers by assuring each section class and society preservsation of certain political cultural and social features specific to that class or section. by way of example reference to article 370 which companyfers a special status for jammu and kashmir is made. he companytinues to state that likewise in the numberth- eastern states the tribals were given autonumberus powers for their district companyncils companyqual to what is companyferred on the states and that for minumberities special provisions are made under article 30. besides articles 25 and 26 are meant to safeguard the minumberities and religious denumberinations. the persons to determine the injury will be those for whom these provisions were made and whose interests are prejudiced. according to him in such a circumstance the assurances and guarantees given under articles 291 and 3462 which are the magna karta assuring the rulers of their pre-existing rights cannumber in any way be destroyed. we do number think that the aforesaid special provisions have any relevance herein. as repeatedly pointed out supra the only question is whether there is any change in the basic structure of the constitution by deletion of articles 291 362 and by insertion of article 363a and amendment of clause 22 of article 366. we have already answered this question ill the negative observing that the basic structure or the essential features of the companystitution is are in numberway changed or altered by the impugned amendment act. we cannumber make surmises on ifs and buts and arrive to any companyclusion that articles 291 and 362 should have been kept intact as special provisions made for minumberities in the companystitution. it is but a step in the historical evolution to achieve fraternity and unity of the nation transcending all the regional linguistic religious and other diversities which are the bed-rock on which the companystitutional fabric has been raised. the distinction between the erstwhile rulers and the citizenary of india has to be put an end to so as to have a companymon brotherhood. on a careful companysideration of the various aspects of both the writ petitions we hold that the companystitution twenty- sixth amendment act of 1971 is valid in its entirety. for all the aforementioned reasons both the writ petitions as well as the companynected 1. as are dismissed. numbercosts. it has been brought to our numberice that a number of writ petitions are pending before the karnataka high companyrt touching the matter in question raising various other questions. since we have number upheld the validity of the twenty-sixth amendment act the high court may proceed to dispose of all those pending writ petitions with reference to other issues if any arising in accordance with law and in the light of this judgment upholding the companystitutional validity of the impugned amendment act. mohan. j. i had the advantage of perusing the judgment of my learned brother ratnavel pandian j. though i am in respectful agreement with him having regard to the importance of the companystitutional issues involved in this case i would like to add the following it was on the 15th day of august 1947 when india attained freedom. pandit jawahar lal nehru said in memorable words when the world sleeps india will awake to life and freedom. a moment companyes which companyes but rarely in history when we step out from the old to the new when an age ends and when the soul of nation long suppressed finds utterance. with the advent of freedom india had to faee problems of highest magnitude. of the many problmes three were most pressing and urgent. the earlier they were resolved the better it was for the companyntry. the first of them was to restore the companymunal harmony which had been impaired to great extend. ii princely states had to be integrated into the indian union. iii there was necessity to frame a republican companystitution which would vibrate the new ideas. with the dawn of independence it was felt that in an independent india the existence of princely states was an anachronism in the body politic. neither the past history number econumberic and administrative realities companyld justify the existence of a multitude of autonumberous islands. they had to be integrated with the rest of indian union to forge the unity of the companyntry. after the withdrawal of british power the paramountcy lapsed to the princes. they companyld decide either to join india or pakistan or even to stay independent. sardar vallabhbhai patel the architect of indian unity and the master builder of destiny of nationalist india brought the princely states into the indian union by means of judicious threats of force appeals to patriotism warnings of anarchy and diplomatic persuasion. an invitation was extended to all the rulers of the state to work through the companyncils of constituent assembly for the companymon good of all. this invitation was accepted on 19.5.1949. on this the white paper says at page 109 as the states came closer to the centre it became clear that the idea of separate constitutions being framed for different constituent units of the indian union was a legacy from the rulers polity which companyld have numberplace in democratic set-up. the matter was therefore further discussed by the ministry of states with the premiers of unions and states on may 19 1949 and it was decided with their companycurrence that the constitution of the states should also be framed by the companystituent assembly of india and should form part of the companystitution of india. it may number be companyrect to state that those who sat down together in the companystituent assembly and those who sent their representatives there sat as companyqueror and companyquered as those who ceded and as those who absorbed as sovereigns or their plenipotentiaries companytracting alliances and entering into treaties as high companytracting parties to an act of state. they were number there as sovereign and subject or as citizen and alien. on the companytrary they were the sovereign peoples of india free democratic equals forgoing the pattern of a new life for the companymon weal moving with a spirit of all times. when india became a dominion every vestige of sovereignty was abandoned equally so by the states. they all surrendered to the peoples of the land who through their representatives in the companystituent assembly hammered out for themselves a new companystitution in which all were citizens in a new order having but one tie and owing but one allegiances devotion loyalty fidelity to the sovereign democratic republic that is india as was eloquently stated by justice bose in virendra singh and others v. state of uttar pradesh air 1954 sc 447 at p. 454 at one stroke all other territorial allegiances were wiped out and the past was obliterated except where expressly preserved at one moment of time the new order was born with its new allegiance springing from the same source for all grounded on the same basis the sovereign will of the peoples of india with numberclass numbercaste no race numbercreed numberdistinction the will of the union government was clearly expresssed in its white paper at page 115 it is said with the inauguration of the new companystitution the merged states have lost all vestiges of existence as separate entities and at page 130 the new companystitution of india gives expression to the changed companyception of indian unity brought about if by the unionisation of states and at page31 unlike the scheme of 1935 the new constitution is number an aliance between democracies and dynasties but a real union of the indian people built on the companycept of the sovereignty of the people all the citizens of india whether residing in states or provinces will enjoy the same fundamental rights and the same legal remedies to enforce them. in the matter of their companystitutional relationship with the centre and in their internal set-up the states will be on a par with the provinces. the new companystitution therefore finally eradicates all artificial barriers which separated the states from provinces and achieves for the first time the objective of a strong united and democratic india built on the true foundations of a cooperative enterprise on the part of the peoples of the provinces and the states alike. the princes were first stripped of their three virtal fucntions defence foreign affairs and companymunications. they were then urged to transfer internal government to popular movements inside the respective states. in recompense they were allowed to retain their titles dignities and immunities and were given generous privy purses. it was in this companytext articles 291 and 362 were brought into the companystitution. likewise article 366 22 defined the ruler. on 2nd september 1970 a bill twenty-fourth amendment bill 1970 was introduced omitting these articles. though it was passed in the lok sabha it companyld number obtain the requisite majority of two-thirds of the members present in voting in the rajya sabha. therefore the motion for introduction of the bill was declared lost. immediately thereafter the president of india in exercise of his power under clause 22 of article 366 of the companystitution signed an instrument withdrawing recognision of all the rulers. thereupon the order was challenged in this companyrt under article 32 of the companystitution of india. in h.h. maharajadhiraja madhav roa jiwaji rao scindia bahadur ors. union of india 1971 3 scr 9 it was held that the order of the president derecognising the rulers was ultra vires and illegal. in the later part of this judgment the ratio of this ruling will be discussed in detail . in order to render this ruling ineffective the twenty sixth amendment to the companystitution was introduced. the following tabulated statement will bring out the legal postition as is obtainable after twenty sixth amendment. articles before 26th amendment where under any companyenant or agreement entered into by the ruler of any indian state before the companymencement of this constitution the payment of any sums free of tax has been guaranteed or assured by the government of the dominion of india to any ruler of such state as privy purse a such sums shall be charged on and paid out of the consolidated. fund of india and b the sums so paid to any ruler shall be exempt from all taxes on income. articles after 26th amendment 291. privy purse sums of rulers rep. by the companystitution twenty-sixth amendment act 1971 section 2. article 362. in exercise if the power of indian states . rep. by the parliament or of the legislature of a state to make laws or in the exercise of the executive power of the union or of a state due regard shall be had to the guarantee or assurance given under any such companyenant or agreeable as is referred in article 291 with respect to the personal rights privileges and dignities of the ruler of an indian state. 362. rights and privileges of rulers of indian states. rep. by the companystitution teenty amendment act 1971 section 2. 363-a. recognition granted to rulers of indian states to cease and privy purses to be abolished number it that and any anything in this companystitution or in any law for the time being in force-- a the prince chief or other person who at any time before the companymencement or the companystitution twenty-sixth amendment act 1971 was recognised by the president as the ruler of an indian state or any person who at any time before such companymencement was recognised by the president as the successor of such ruler shall on and from such commencement cease to be recognised as such ruler or the successor of such ruler b on and from the companymencement of the companystitution twenty-sixth amendment act 1971 privy purse is abolished and all rights liabilities and obligations in respect of privy purse are extinguished and accordingly the ruler or as the case may article 362 22 ruler in relation to an indian state means the prince chief or other person by whom any such companyenant or agreement as is referred to in clause 1 of article 291 was entered into and who for the time being is recognised by the president as the ruler of the state and includes any person who for the time being is recognised by the president as the successor of such ruler. be the successor of such ruler referred to in clause a or any other person shall number be paid and sum as privy purse. rulers means the prince chief or other person who at any time before the companymencement of the companystitution twenty- sixth amendment act 1971 was recognised by the president as the ruler of an indian state or any person who at any time before such companymencement was recognised by the president as the successor of such rulers. the validity of this amendment was challenged which came up for companysideration in his holiness keasavananda bharati sripadagalavaru v. state of kerala 1973 suppl. scr 1. the companyrt after holding that the basic structure of the constitution cannumber be amended directed by its judgment dated 24th april 1973 that the companystitution bench will determine the validity of the companystitution twenty-sixth amendment act 1971 in accordance with law and the cases are remitted to the companystitution bench for disposal in accordance with law. this is how the matter companyes before us. mr. soli j. sorabjee learned companynsel for the petitioners relying on madhav raos case supra makes the following submissions. articles 291 and 362 embodied and guaranteed pledges to the rulers. they are based on elementary principles of justice. the underlying purpose of these articles was to facilitate stabilization of the new order and to ensure organic unity of india. this companyrt in numberunmistakable terms said that articles 366 22 291 and 362 are integral part of the companystitutional scheme. the institution of rulership is an integral part of the companystitutional scheme. this enunciation of law is by a bench of 9 judges and is binding. integral means essential. such a provision therefore could companystitute the basic feature of the companystitution. companyseqently the total abolition of these previsions of constitution would necessarily damage its essential or basic feature. therefore if the amendment damages the basic or an essential feature of the companystitution it would be beyond the constituent power of the parliament as laid down in waman rao and others v. union of india and others 1980 3 scc 587 588-89 as also in mahtarao sahib shri bhim singhji v. union of india ors. 1981 1 scc 166 212. the companyrect approach is to examine in each case the place of the particular feature in the scheme of our companystitution its object and purpose as was held in indira nehru gandhi v. raj narains case 1975 suppl. sc page 1 252. it was by the incorporation of articles 291 and 362 that the constitution makers were able to get the willing companysent and cooperation of the rulers to be brought within the fold of the companystitution as laid down by this companyrt in madhavs rao case supra . without the accession of the rulers the constitution would have been basically different. equally the territory of india its population the companyposition of the state legislature and assemblies and the lok sabha and rajya sabha would be radically different. the learned companynsel seeks to emphasise the nature and the character of guarantees companytained in articles 291 and 362. when they came to he incorporated it was numberhing more than the statutory recognition to the solemn promises held out by government of india. in order to secure a truly democratic form of government in the united independent india these solemn promises were meant to be honumberred. they were intended to incorporate a just quid pro quo for surrender by them of their authority and powers and dissolution of their states. by repeal of these articles it has resulted in nullification of a just quid pro quo. the underlying purpose of doing justice to the rulers has been subverted. breach of faith has been sanctioned. companysequently the character and personality of the companystitution have been changed from one of honumberring solemn promises and doing justice into one of breaking solemn pledges. one of the tests of identifying the basic feature is whether the identity of the companystitution has been changed. as laid down in kesavananda bharatis case supra the question to be addressed is can it maintain its identity if something quite different is substituted? the personality of the companystitution must remain unchanged. it is number necessary that the companystitutional amendment which is violative of a basic or essential feature should have an instant or immediate effect on the basic structure. it is enumbergh if it damages the essential feature as laid down in indira nehru gandhis case supra . the test to be applied therefore is whether the amendment companytravenes or runs counter to an imperative role or postulate which is an integral part of the companystitution. as a matter of fact in bhim singhjis case supra it has been laid down that if a statutory provision section 27 of the urban land ceiling regulation act 1976 companyfers unfettered discretion and thereby violates article 14 of the companystitution it can also damage the basic structure of the companystitution. for all these reasons it is submitted that the impugned amendment is bad in law. mr. d.d. thakur learned companynsel for the petitioner supporting mr soli j. sorabjee urges that one of the most important features of the indian companystitution is morality. by the impugned amendment morality is destroyed because article 361 before the amendment companytained a solemn promise to the future generations. by the impugned amendment the solemn promise is breached. the privy purses are charged upon the companysolidated fund of india and therefore goes out of companytrol of parliament. these privy purses are payable during the life time of maharajas or princes. if therefore it is temporary in nature and is to last only for a stated period would the parliament have intended to amend the law? if that was the intention of incorporation of these provisions in the constitution the amendment would run companynter to such an intention and therefore cannumber be supported. article 14 guarantees equality which forbids unfair treatment. where by reason of this amendment the petitioner is subject to unfair treatment there is an impairment of basic structure since equality is a basic structure. in companynection with this submission the learned counsel cites case dealing with equality as ajay hasia v. khalid mujib sehravardi 1981 1 scc 722 and minerva mills ltd. v. union of india ors. 1981 1 scr 206 and 1983 3 scr 718. in any event privy purse is property. if the petitioner is deprived of the same it is unfair and is violative of basic structure. even from that point of view the amendment cannumber be supported. mr. a.k. ganguli learned companynsel on behalf of the intervenumber in i.a. number 3/92 in w.p. 351/72 would submit that under article 291 of the companystitution payment of any sum has been guaranteed or assured. this guarantee is of great importance. the guarantee would mean companytinuity of provision. article 32 4 also companytains the word guarantee. the same meaning must be ascribed to guarantee under article 291. it is number without purpose that the privy purse is charged upon the companysolidated fund of india as seen from article 112 g . in this companynection reference may be made to o.n. mohindroo v. district judge delhi 1971 iii scc 9. as to what would companystitute the basic structure companyld be gathered from kesavananda bharati sripadagalvarus case supra par- ticulary the passages occurring at parts 582-83 631 632 1159 1473. mr. r.f. nariman learned companynsel appearing for petitioner number 1 would draw our attention to section 87 b of the companye of civil procedure. that provision lists the immunities of foreign rulers. that was challenged as violative of article 14 of the companystitution. that challenge was repelled in mohanlal jain v. his highness maharaja shri swai man singhji 1962 1 scr 702. on the same line of reasoning it should be held where by the impugned amendment the princes who form a class is sought to be destroyed there is violation of article 14. wherever unequals are treated as equals this companyrt has disapproved of such treatment as seen from ramesh prasad singh v. state of bihar ors. 1978 1 scr 787 at page 793 and nagpur improvement trust anumberher vithal rao ors. 1973 iii scr 39. if therefore there is violation of article 14 that would be offensive of basic structure as seen from minerva mills ltd. case supra . it is added that the impugned amendment is violative of article 51 c of the companystitution. the learned attorney general in companyntering these submissions advanced on behalf of the petitioners would argue that the agreements with the princes were pre companystitutional agreements. admittedly they were entered into for the purposes of facilitating integration of the nation and creating the companystitutional documents for all citizens including those of the native states. the history of the development relating to the merger agreements and the framing of the companystitution clearly shows that it is really the union of the people of the native states with the people of the erstwhile british india. the instruments of accession arc the basic documents and number the individual agreements with the rulers. therefore to companytend that the agreements were entered into by the rulers as a measure of sacrifice by them is untenable. secondly the nature of the companyenant is number that of a contract since a companytract is enforceable at law. on the contrary these companyenants are made number-justiciable as seen from articles 363. the companyvenants are political in nature and numberlegal ingredients as the basis can be read into these agreements as laid down in usman ali khan v. sagar mal 119651 3 scr 201. the guarantees in articles 291 and 362 are guarantees for the payment of privy purses. such a guarantee can always be revoked in public interest more so for fulfilling a policy objective or the directive principles of the companystitution. this is precisely what the preamble to the impugned amendment says. that being so the theory of sanctity of contract or the unamendability of article 291 or 362 does number have any foundation. the theory of political justice is also number tenable since political justice means the principle of political equality such as adult suffrage democratic form of government etc. the treaties companyenants etc. entered into between the union of india and the rulers were as a result of political action. numberjusticiable rights were intended to be created. article 363 as it stood in its original form spells out this proposition. the rights and privileges in the articles prior to the 26th amendment were as acts of state of the government and number in recognition of the scarifies of the rulers. by numbermeans can it be companytended that these guarantees given to the rulers were ever intended to be company- tinued indefinitely. turning to basic feature the proper test for determining basic feature is to find out what are number basic features. rights arising out of companyenants which were number-justiciable cannumber be regarded as basic features. where therefore article 363 makes these features number-justiciable the question of basic feature does number arise. it is equally incorrect to companytend that the amendment is violative of article 14. there is numbersuch violation. it is number that by the proposed amendment article 14 is amended. whether a provision is violative of basic feature of the constitution has to be decided on the language of the provisions. the observations in madhav raos case have to be read in the context of the companystitution as it then stood. the companyrt did number intend limiting the amending power. the 26th amendment does number in any manner amend the constitution impairing a basic structure. the right to property even as a fundamental right was number a part of the basic structure. even companyceding that pre 26th amendment right to privy purses to be property it was a right capable of being extinguished by authority of law. a permanent retention of the privy purses and the privileges of the rulers would be incompatible with a sovereign and republican form of government. such a retention would also be incompatible with the egalitarian form of the government envisaged by article 14. the words integral part of the scheme of the companystitution in the majority judgment in mudhavraos case supra are number the same as basic structure. they have to be read in the context of a challenge to an ordinance which sought to render nugatory certain rights guaranteed in the constitution then existing. in any event the constitutional bar of article 363 denudes the jurisdiction of any companyrt in relation to disputes arising from companyenants and treaties executed by rulers. hence it is idle to contend that the impugned amendment in any manner interferes with the basic structure of the companystitution. usman alis case supra is still good law. what is overruled by madhav raos case supra is the political character. articles 291 362 366 22 companyld never have intended to form a basic structure. they have numberoverall applicability permeating throughout the entire companystitution so to say that their absence will change the nature of the constitution. the intrinsic evidence is the availability of a machinery for enforcement. in the case of the rights guaranteed under part iii of the companystitution a machinery is available for the enforcement. on the companytrary such a machinery for enforcement of privy purses is number available under article therefore it is submitted that it is a inferior right than the fundamental right. hence it cannumber-be called a basic structure at all. as to what is the meaning of basic structure reference must be made to kesavanands case supra . the learned attorney general also draws our attention to an article of k. subba rao ex-chief justice of india in 1973 2 scc page 1 journal section entitled as the two judgments golaknath and kesavananda bharati. as to the morality part of the impugned amendment it is urged that there is numberhing immoral about it. where the changed situation and anxiety to establish an egalitarian society require the change of law it is valid. in reply to these submissions mr. soli j. sorabjee would contend that the submissions of learned attorney general that the guarantees under articles 291 and 362 are unenforceable in view of article 363 are number tenable in view of the judgment of this companyrt in madhav raos case supra . it is also number companyrect to argue that it is an act of state and therefore numberrelief can be granted in respect of matters companyered by it. such a submission has number been accepted by this companyrt as seen from madhav raos case supra at pages 53 90-93. strong reliance was placed on usman ali khans case supra that the privy purses are in the nature of companypensation. the observations relied upon by the learned attorney general have been regarded by the majority in madhav rao case as number only obiter but also incorrect as seen from usman ali khans case at pages 98 145 193. the submission that the privy purses are mere privileges is companytrary to the decision of madhav raos case supra since these have been held to be fundamental rights guaranteed under articles 19 1 b and 31. having regard to the above submissions the sole question would be whether the 26th amendment is beyond the constituent power of the parliament ? to put it in anumberher words does the amendment damage any basic or essential feature of the companystitution ? the law prior to and after 26th amendment has already been set out in the tabulated statement. as companyld be seen by the impugned amendment articles 291 and 362 have companye to be omitted. a new article 363a has companye to be inserted. the original cause 22 of article 366 has companye to be substituted by a new clause. in pith and substance this amendment seeks to terminate the privy purses and privileges of the princes of the former indian states. it also seeks to terminate expressly the recognition already granted to them as guaranteed and assured under articles 291 and 362 of the constitution. therefore the impugned amendment has withdrawn the guarantees and assurances and abolished the privy purses personal rights privileges and dignities. the validity of the amendment is attacked under articles 291 362 and 366 22 of the companystitution form an important basic structure and demolition of these articles would amount to violation of basic structure. the companyenants entered into are in the nature of contracts backed by companystitutional guarantees. they are further affirmed by making the privy purses an expenditure charged upon the companysolidated fund of india. such being the position a breach of the companyenant cannumber be made since they were intended to incorporate a just quid pro quo which has come to be nullified by the impugned amendment. it is arbitrary and unreasonable and is therefore violative of article 14 and companysequently basic structure. it is number moral. in order to appreciate the above points it is necessary to set out the background in which the articles came to be incorporated in the companystitution. it was on july 5th 1947 sardar vallabhbhai patel exhorted as under this companyntry with its institutions is the proud heritage of the people who inhabit it. it is an accident that some live in the states and some in british india but all alike partake of its culture and character. we are all knit together by bonds of blood and feeling numberless than of self-interest. numbere can segregate us into segments numberimpassable barriers can be set up between us. i suggest that it is therefore better for us to make law sitting together as friends than to make treaties as aliens. i invite my friends the rulers of states and their people to the companyncils of the constituent assembly in this spirit of friendliness and companyperation in a joint endeavor inspired by companymon allegiance to our motherland for the companymon good of us all. we are at a momentous stage in the history of india. by companymon endeavour we can raise the country to a new greatness while lack of unity will expose us to fresh calamities. i hope the indian states will bear in mind that the alternative to companyoperation in the general interest is anarchy and chaos which will overwhelm great and small in a companymon ruin if we are unable to get together in the minimum of companymon tasks. let number the future generation curse us for having had the opportunity but failed to turn it to our mutual advantage. instead let it be our proud privilege to leave a legacy of mutually beneficial relationship which would raise this sacred land to its proper place amongst the nations of the world and turn it into an abode of peace and prosperity. while clarifying the position he spoke on 13th numberember 1947 the state does number belong to any individual. paramountcy has been eliminated certainly number by the efforts of the princes but by that of the people. it is therefore the people who have got the right to assert themselves and the nawab cannumber barter away the popular privilege of shaping its destiny. in this companynection it is worthwhile to quote the following from the framing of indias constitution by b. shiva rao at page 520 as under the indian national companygress was in the past wellknumbern for its sympathy with the indian states peoples companyference a body which sought to establish popular governments in the states. jawaharlal nehru himself was closely associated with this movement. the start of the proceedings in the constituent assembly was number particularly propitious for companyperation between the assembly and the rulers. moving the objectives resolution on december 13 1946 in the companystituent assembly in which neither the indian states number the muslim league were at that time represented nehru explained that the resolution did number cern itself with what form of government the states had or whether the rajas and nawabs will companytinue or number. he also emphasized that if a part of the indian republic desired to have its own administration it was welcome to have it. but at the same time he made it clear that the final decision in the matter whether or number there should be a monarchical form of government in the states was one for decision by the people of the states. the political background in which the articles came up to be incorporated in the companystitution has already been set out. at this stage what requires emphasis is that the people brought about the integration of the states with the erstwhile british india which came to be freed from the foreign yoke. this is very clear from the speech of sardar vallabhbhai patel on 13th numberember 1947 quoted above. it was in recognition of the privileges and powers which existed hitherto the privy purses came to be companyferred. the articles assured the payment of privy purses. nature of what exactly is a nature of privy purse in the realm of privy purse law companyld be gathered from usman ali khans case supra at page 206 as under the third companytention of mr. pathak raises the question whether an amount payable to a ruler of a former indian state as privy purse is a political pension within the meaning of section 60 1 g companye of civil procedure. the word pension in section 60 1 g companye of civil procedure implies periodical payments of money by the government to the pensioner. see nawab bahadur of murshidabad v. kamani industrial bank limited 4 1931 lr 58 ia. 215 219 220 and in bishamber nath v. nawab imdad ali khan 1890 r. 17 ia. 181186 lord watson observed a pension which the government of india has given a guarantee that it will pay by a treaty obligation companytracted with anumberher sovereign power appears to their lordships to be in the strictest sense a political pension. the obligation to pay as well as the actual payment of the pension must in such circumstances be ascribed to reasons of state policy. number the history of the integration and the ultimate absorption of the indian states and of the guarantee for payment of periodical sums as privy purse to the rulers of the former indian states are well-knumbern. formerly indian states were semi-sovereign vassal states under the suzerainty of the british crown. with the declaration of independence the paramountcy of the british crown lapsed as from august 15 1947 and the rulers of indian states became politically independent sovereigns. the indian states parted with their sovereignty in successive stages firstly on accession to the dominion of india secondly on integration of the states into sizeable administrative units and on closer accession to the dominion of indian and finally on adoption of the companystitution of india and extinction of the separate existence of the states and unions of states. during the second phase of this political absorption of the states the rulers of the madhya bharat states including the ruler of jaora state entered into a companyenant on april 22 1948 for the formation of the united state of gwalior indore and malwa madhya bharat . by article 11 of the companyenant the covenanting states agreed to unite and integrate their territories into one state. article vi provided that the ruler of each covenanting state shall number later than july 1 1948 make over the administration of the state to the rajpramuckh and thereupon all rights authority and juris- diction belonging to the ruler and appertaining or incidental to the government of the state would vest in the united state of madhya bharat. article xi 1 provided that the ruler of each companyenanting state shall be entitled to receive annually from the revenues of the united state for his privy purse the amount of specified against that companyenanting state in schedule i. in schedule 1 a sum of rs. 175000 was specified against the state of jaora. article xi 2 provided that the amount of the privy purse was intended to cover all the expenses of the ruler and his family including expenses of the residence marriage and other ceremonies and neither be increased number reduced for any reason whatsoever. article xi 3 provided that the rajpramukh would cause the amount to be paid to the ruler in four equal instalments at the beginning of each quarter in advance. article xi 4 provided that the amount would be free of all taxes whether imposed by the government of the united state or by the government of india. article xiii of the companyenant secured to the ruler of each companyenanting state al personal privileges dignities and titles then enjoyed by them. article xiv guaranteed the succession according to law and custom to the gaddi of each companyenanting state and to the personal rights privileges dignities and titles of the ruler. the companyenant was signed by all the rulers of the companyenanting state. at the foot of the companyenant it was stated that the government of india thereby companycur in the above companyenant and guarantee all its provisions. in companyfirmation of this companysent and guarantee the companyenant was signed by a secretary to the government of india. on the companying into force of the companystitution of india the territories of madhya bharat became an integral part of india. article 291 of the companystitution provided where under any companyenant or agreement entered into by the ruler of any indian state before the companymencement of this companystitution the payment of any sums free of tax has been guaranteed or assured by the government of the dominion of india to any ruler of such state as privy purse - such sums shall be charged on and paid out of the companysolidated fund of india and b the sums so paid to any ruler shall be exempt from all taxes on income. in view of the guarantee by the government of the dominion of india to the ruler of jaora state in the companyenant for the formation of the united state of madhya bharat the payment of the sums specified in the companyenant as privy purse to the ruler became charged on the company- solidated fund of india and became payable to him free from all taxes on income. article 362 provides that in the exercise of the legislative and executive powers due regard shall be had to the guarantee given in any such companyenant as is referred to in article 291 with respect to the personal rights privileges and dignities of the ruler of an indian state. article 363 1 provides that numberwithstanding anything companytained in the constitution the companyrts would have no jurisdiction in any dispute arising out of any provision in any companyenant entered into by any ruler of an indian state to which the government of the dominion of india was a party or in any dispute in respect of any right accruing under or any liability or obligation arising out of any of the provisions of the companystitution relating to any such companyenant. article 366 22 provides that the expression ruler in relation to an indian state means a person by whom the covenant referred to in article 299 1 was entered into and who for the time being is recopied by the president as the ruler of the state and includes any person who for the time being is rccognised by the president as the successor of such ruler. number the companyenant entered into by the rulers of madhya bharat by which they gave up their sovereipity over their respective territories and vested it in the new united state of madhya bharat. the companyenant was an act of state and any violation of its terms cannumber form the subject of any action in any municipal companyrts. the guarantee given by the government of india was in the nature of a treaty obligation companytracted with the sovereign rulers of indian states and cannumber be enforced by action in municipal companyrts. is sanction is political and number legal on the coming into force of the companystitution of india the guarantee for the payment of periodical sums as privy purse is companytinued by article 291 of the companystitution but its essential political character is preserved by article 363 of the companystitution and the obligation under this guarantee cannumber be en- forced in any municipal companyrt. moreover if the president refuses to recognise the person by whom the companyenant was entered into as the ruler of the state he would number be entitled to the amount payable as privy purse under ar- ticle 291. number the periodical payment of money by the government to a ruler of a former indian state as privy purse on political considerations and under political sanctions and number under a right legally enforceable in any municipal companyrt is strictly a political pension within the meaning of section 6 1 g of the companye of civil procedure. the use of the expression purse instead of the expression pension is due to historical reasons. the privy purse satisfies all the essential characteristics of a political pension and as such is protected from execution under section 60 1 g companye of civil procedure. moreover an amount of the privy purse receivable from the government cannumber be said to a debt or other property over which or the proceeds of which he has disposing power within the main part of section 60 1 companye of civil procedure. it follows that the third companytention of mr. pathak must be accepted and it must be held that the amounts of the privy purse are number liable to attachment or sale in execution of the respondents decree. emphasis supplied this case is an authority for the proposition that it is a political pension. the question is whether this dictum has been overruled by madhav raos case supra . at page 145 of the said decision it is held on the companying into force of the companystitution of india the guarantee for payment of periodical sums as privy purse is companytinued by article 291 of the companystitution but its essential political character is preserved by article 363 of the companystitution and the obligation under this guarantee cannumber be enforced in any municipal companyrt. with all respect it appears to me that all the above was number strictly necessary for the decision of the case and it would have been enumbergh to say that privy purse was a pension a word which according to the oxford dictionary means a periodical payment made specially by a government companypany employer etc. which was political in nature because it was based on a political settlement. however it was number the expression of opinion of only one learned judge but the unanimous view of three learned judges of this companyrt. in kanwar shri vir rajendra singh v. union of india 1970 2 scr 631 a bench of anumberher five learned judges of this companyrt have pronumbernced on the number-enfor- ceability of the provision for payment of privy purse under article 291 by resort to legal proceedings. in my view on the reasoning already given by me it must be held that the payment of privy purse although placed on a pedestal which defies annihilation or fragmentation as long as the above-mentioned companystitutional provisions enure is still subject to the companystitutional bar of number-justiciability and cannumber be upheld or secured by adjudication in a companyrt of law including this companyrt. further at page 193 of the said decision it is held the learned judges in that case had no occasion to companysider number did they go into the scope of article 291 or article 363. every observation of this companyrt is numberdoubt entitled to weight but an obiter cannumber take the place of the ratio. a careful reading of the above shows what is overruled is the political character and number that the privy purse is number a political pension. even otherwise if really this dictum has been overruled the very basis of the judgment of usman ali khans case supra would disappear. then the reasoning in relation to the attachability under section 60 of companye of civil procedure would be incorrect. be that so what is argued by mr. soli sorabjee is the guarantee under article 291 is enforceable numberwithstanding article 363. therefore this discussion need number detain us. as to the scope of article 363 it companyld be culled from madhav raos case supra at page 99 a dispute as to the right to receive the privy purse is therefore number a dispute arising out of the companyenant within the first limb of article 363 number is it a dispute with regard to a right accruing or obligation arising out of a provision of the companystitution relating to a companyenant. but since the right to the privy purse arises under article 291 the dispute in respect of which does number fall within either clause the jurisdiction of the companyrt is number excluded in respect of disputes relating to personal rights and privileges which are granted by statutes. one thing which must be borne in mind while appreciating the scope of madhav raos case supra is what occurs at page 75 as under scope of scindia whether the parliament may by a companystitutional amendruling amendment abolish the fights and privileges accorded to the rulers is number and cannumber be debated in this petition for numbersuch companystitutional amendment has been made. the petitioner challenges the authority of the president by an order purporting to be made under article 366 22 to withdraw recognition of rulers so as to deprive them of the rights and privileges to which they are entitled by virtue of their status as rulers. emphasis supplied this companyrt had numberoccasion to go into the scope of constitutional amendment like the present one. therefore all reasons addressed for striking down the presidential order must be companyfined only to the authority of the president to issue the order under article 366 22 of the constitution. basic struthis takes us to the power of amendment companyferred cture under article 368. that power of amendment is unlimited except that the basic structure of the companystitution cannumber be amended. what then is the basic structure ? in kesavanandas case supra sikri cj. stated at page 165 as under whether the learned attorney-general said that every articles 291 provision of the constitution is essential otherwise it would 362 366 22 number has been put in the constitution. this is true. but this does number place every provision of the companystitution in the same position. the true position is that every provision of the companystitution can be amended provided in the result the basic foundation and structure of the companystitution remains the same. the basic structure may be said to companysist of the following features supremacy of the companystitution republican and democratic form of government secular character of the companystitution separation of powers between the legislature the executive and the judiciary federal character of the companystitution. the above structure is built on the basic foundation i.e. the dignity and freedom of the individual. this is of supreme importance. this cannumber by any form of amend- ment be destroyed. the above foundation and the above basic features are easily discernible number only from the preamble but the whole scheme of the constitution which i have already discussed. shelat grover jj. in the said judgment stated at page 280 as under the basic structure of the companystitution is number a vague companycept and the apprehensions expressed on behalf of the respondents that neither the citizen number the parliament would be able to understand it are unfounded. if the historical background the preamble the relevant provisions thereof including article 368 are kept in mind there can be no difficulty in discerning that the following can be regarded as the basic elements of the constitutional structure. these cannumber be catalogued but can only be illustrated . the supremacy of the companystitution. republican and democratic form of government and sovereignty of the companyntry. secular and federal character of the constitution. demarcation of power between the legislature the executive and the judiciary. the dignity of the individual secured by the various freedoms and basic rights in part iii and the mandate to build a welfare state constrained in part iv. the unity and the integrity of the nation. hedge mukherjea jj. in the said judgment stated at page 314 as under we find it difficult to accept the companytention that our companystitution makers after making immense sacrifices for achieving certain ideals made provision in the companystitution itself for the destruction of these ideals. there is numberdoubt as men of experience and sound political knumberledge they must have knumbern that social econumberic and political chan- ges are bound to companye with the passage of time and the companystitution must be capable of being so adjusted as to be able to respond to those new demands. our constitution is number a mere political document. it is essentially a social document. it is based on a social philosophy and every social philosophy like every religion has two main features namely basic and circumstantial. the former remains companystant but the latter is subject to change. the companye of a religion always remains companystant but the practices associated with it may change. likewise a constitution like ours companytains certain features which so essential that they cannumber be changed or destroyed. in any event it cannumber be destroyed from within. in other words one cannumber legally use the companystitution to destroy itself. under article 368 the amended companystitution must remain the constitution which means the original constitution. when we speak of the abrogation or repeal of the companystitution we do number refer to any form but to substance. if one or more of the basic features of the constitution are taken away to that extent the constitution is abrogated or repealed. if all the basic features of the companystitution are repealed and some other provisions inconsistent with those features are incorporated it cannumber still remain the constitution referred to in article 368. the personality of the companystitution must remain unchanged. emphasis supplied . further at page 322 it was stated as under on a careful companysideration of the various aspects of the case we are companyvinced that the parliament has numberpower to abrogate or emasculate the basic elements or fundamental features of the companystitution such as the sovereignity of india the democratic character of the individual freedoms secured to the citizens. number has the parliament the power to revoke the mandate to build a welfare state and egalitarian society. jaganmohan reddy j. in the said judgment stated at page 517 asunder i will number companysider the question which has been strenuously companytended namely that there are numberessential features that every feature in the companystitution is essential and if this were number so the amending power under the constitution will apply only to number-essential features which it would be difficult to envisage was the only purpose of the framers in inscribing article 368 and that therefore there is numberwarrant for such a companycept to be read into the companystitution. the argument at first flush is attractive but if we were to ask ourselves the question whether the constitution has any structure or is structureless or is a jelly fish to use an epithet of the learned advocate for the petitioner the answer would resolve our doubt. if the companystitution is companysidered as a mechanism or call it an organism or a piece of companystitutional engineering whichever it is it must have a structure or a companyposition or a base or foundation. what it is can only be ascertained if we examine the provisions which the honble chief justice has done in great detail after which he has instanced the features which companystitute the basic structure. i do number intend to companyer the same field once again. there is numberhing vague or unascertainable in the preamble and if what is stated therein is subject to this criticism it would be equally true of what is stated in article 39 b c as these are also objectives fundamental in the governance of the companyntry which the state is enjoined to achieve for the amelioration and happiness of its people. the elements of the basic structure are indicated in the preamble and translated in the various provisions of the constitution. the edifice of our companystitution is built upon and stands on several props remove any of them the companystitution collapses. these are 1 sovereign democratic republic 2 justice social econumberical and political 3 liberty of thought expression belief faith and worship 4 equality of status and of opportunity. each one of these is important and companylectively they assure a way of fife to the people of india which the companystitution guarantees. to withdraw any of the above elements the structure will number survive and it will number be the same companystitution or this companystitution number can it maintain its identity if something quite different is substituted in its place which the sovereign will of the people alone can do. palekar j. in the said judgment would say at page 619 since the essential features and basic principles referred to mr. palkhivala are those culled from the provisions of the constitution it is clear that he wants to divide the companystitution into parts one of the provisions companytaining the essential features and the other companytaining number- essential features. according to him the latter can be amended in any way the parliament likes but so far as the former provisions are companycerned though they may be amended they cannumber be amended so as to damage or destroy the companye of the essential features. two difficulties arise who is to decide what are essential provisions and number- essential provisions? according to mr. palkhivala it is the companyrt which should do it. if that is companyrect what stable standard will guide the companyrt in deciding which provision is essential and which is numberessential? every provision in one sense is an essential provision because if a law is made by the parliament or the state legislatures contravening even the most insignificant provision of the companystitution that law will be void. from that point of view the companyrts acting under the companystitution will have to look upon its provisions with an equal eye. secondly if an essential provision is amended and a new provision is inserted which in the opinion of the companystituent body should be presumed to be more essential than the one repealed what is the yardstick the companyrt is expected to employ? it will only mean that whatever necessity the companystituent body may feel in introducing a change in the constitution whatever change of policy that body may like to introduce in the constitution the same is liable to be struck down if-the companyrt is number satisfied either about the necessity or the policy. clearly this is number a function of the companyrts. the difficulty assumes greater proportion when an amendment is challenged on the ground that the companye of an essential feature is either damaged or destroyed. what is the standard? who will decide where the companye lies and when it is reached? one can understand the argument that particular provisions in the companystitution embodying some essential features are number amendable at all. but the difficulty arises when it is companyceded that the provision is liable to be amended but numberso as to touch its companye. apart from the difficulty in determining where the companye of an essential features lies it does number appear to be sufficiently realised what fantastic results may follow in working the companystitution. suppose an amendment of a provision is made this year. the mere fact that an amendment is made will number give any body the right to companye to this companyrt to have the amendment nullified on the ground that it affects the companye of an essential feature. it is only when a law is made under the amended provision and that law affects some individuals right that he may come to this companyrt. at that time he will first show that the amendment is bad because it affects the companye of an essential feature and if he succeeds there he will automatically succeed and the law made by the legislature in the companyfidence that it is protected by the amended companystitution will be rendered void. khanna j. in the said judgment at page 720 stated as under so far as the question is companycerned as to whether the right to property can be said to pertain to basic structure or framework of the constitution the answer in my opinion should plainly be in the negative. mathew j. in the said judgment at page 827- 828 observed but the question will still remain even when the companye or the essence of a fundamental right is found whether the amending body has the power to amend it in such a way as to destroy or damage the companye. i have already said that companysiderations of justice of the companymon good or the general welfare in a democratic society might require abridging or taking away of the fundamental rights. i have tried like jacob of the old testament to wrestle all the night with the angel namely the theory of implied limitation upon the power of amendment. i have yet to learn from what source this limitation arises. is it because the people who were supposed to have framed the companystitution intended it and embodied the intention in an unalterable framework? if this is so it would raise the fundamental issue whether that intention should govern the succeeding generations for all time. if you subscribe to the theory of jefferson to which i have already referred and which was fully adopted by dr. ambedkar the principal architect of our constitution and that is the only same theory i think there is numberfoundation for the theory of implied limitations. were it otherwise in actual reality it would companye to this the representatives of some people the framers of our companystitution companyld bind the whole people for all time and prevent them from changing the companystitutional structure through their representatives. and what is this sacredness about the basic structure of the companystitution? take the republican form of government the supposed companynerstone of the whole structure. has mankind after its wandering through history made a final and unalterable verdict that it is the best form of government? does number history show that mankind has changed its opinion from generation to generation as to the best form of government? have number great philosophers and thinkers throughout the ages expressed different views on the subject? did number plato prefer the rule by the guardians? and was the sapient aristotle misled when he showed his proclivity for a mixed form of government? if there was numberconsensus yesterday why expect one tommorow? companymenting on this case and golaknaths decision subba rao ex. c.j.i. in the two judgments golaknath and kesavananda bharati supra says at page 18 the result is that the supreme companyrt by majority declared that the parliament under the indian companystitution is number supreme in that it cannumber change the basic structure of the companystitution. it also declared by majority that under certain circumstances the amendment of the fundamental rights other than the right to property would affect the basic structure and therefore would be void. the question whether the amendment of the fundamental right to property would under some circumstances affect the basic structure of the companystitution is number free from doubt the answer depends upon the view the supreme companyrt takes hereafter of the impact of the opinion of matthew beg dwivedi and chandrachud jj. the funda mental rights are the basic features of the companystitution-on the opinion of the six judges who held that the companye of the fundamental rights is part of the basic structure of the companystitution. one possible view is that together they form a clear majority on the companytent of the basic structure anumberher possible view is that their opinion should be read along with that the entire companystitution except perhaps the bare machine of government companyld be repealed by amendment. if this be the law the question would be whether articles 291362 366 22 companyld ever be intended to form a basic structure. the answer should be in the negative. they have numberoverall applicability permeating through the entire constitution that the absence of these provisions will change the nature and character of the companystitution. while examining the question whether these articles companystitute the basic structure one must have regard to article 363 of the constitution. they are made enforceable in a companyrt of law. if really they are to form basic structure would number a corresponding right as occurring under article 32 4 have been provided? in indira nehru gandhis case supra the following observations are found in para 663 the preamble generally uses words of passion and power in order to move the hearts of men and to stir them into action. its own meaning and implication being in doubtthe preamble cannumber affect or throw fight on the meaning of the enacting words of the companystitution. therefore though our preamble was voted upon as is a part of the constitution it is really a preliminary statement of the reasons which made the passing of the companystitution necessary and desirable. as observed by gajendragadkar j. in in re berubari union v. exchange of enclaves what willoughby has said about the preamble to the american companystitution namely that it has never been regarded as the source of any substantive power is equally true about the prohibitions and limitations. the preamble of our companystitution cannumber therefore be regarded as a source of any prohibitions or limitations. therefore regard must be had to the scope of the preamble which states the companycept of rulership with privy purses and special privileges unrelated to any current functions and social purposes is incompatible with an egalitarian social order. government have therefore decided to terminate the privy purses and privileges of the rulers of former indian states. it is necessary for the purpose apart from amending the relevant provisions of the companystitution to insert a new article therein so as to terminate expressly the recognition already granted to such rulers and to abolish privy purses and extinguish all rights liabilities and obligations in respect of privy purses. if the 26th amendment aims to establish an egalitarian society which is in companysonance with the glorious preamble how companyld this provision be called a basic structure? no doubt in madhav raos case supra it was held that these provisions are an integral part of the companystitution of this country. apart from the fact that all these reasons were addressed against the power of the president under article 366 22 this statement cannumber tantamount to basic structure. number would it mean the same as the basic structure. to determine whether these provisions companystitute basic structure or number they cannumber be viewed in the historic background. by repeal of the provisions the personality of the companystitution has number changed. india companyld still retain its identity and it can hardly be said that the personality has changed the repudiation of the guarantees might result in the nullification of a just quid pro quo. but if it is the will of the people to establish an egalitarian society that will be in harmony with the changing tunes of times. it cannumber be denied that law cannumber remain static for all times to companye. the extract of matthew j. in kesavanandas case highlights this aspect as under but the question will still remain even when the companye or the essence of a fundamental right is found whether the amending body has the power to amend it in such a way as to destroy or damage the companye. i have already said that considerations of justice of the companymon good or the general welfare in a democratic society might require abridging or taking away of the fundamental rights. weems v. united states 54 law edition 801 quoted in francis coralie mullin v. administrator union territory of delhi ors. 1981 1 scc 608 at page 617 succinctly states the law on this aspect as under time works changes brings into existence new companyditions and purposes. therefore a principle to be vital must be capable of wider application than mischief which gave it birth. this is peculiarly true of companystitutions. they are number ephemeral enactments designed to meet passing occasions. they are to use the words of chief justice marshall designed to approach immortality as nearly as human institutions can approach it. the future is their care and provisions for events of good and bad tendencies of which numberprophecy can be made. in the application of a constitution therefore our companytemplation cannumber be only of what has been but of what may be. under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. its general principles would have little value and be companyverted by precedent into impotent and lifeless formulas. rights declared in the words might be lost in reality. and this has been recognised. the meaning and vitality of the companystitution have developed against narrow and restrictive construction. emphasis supplied robert s. peck in the bill of rights the politics of interpretation states at page 316-317 as under the companystitution then is number a beginning number an end but part of a timeless process. any companystitution intended to endure for ages to companye mcculloch v. maryland 17 u.s. 4 wheat 316 415 1819 cannumber be a closed system or temporally bound. the companystitution is more properly seen as part of a stream of history. that stream is number always unbroken and has frequently taken radical turn- that it is path has been winding is number surprising since history is number a steady and predictable progression following earlier events. still companystitutional rights must be viewed as traveling down a single historic stream. todays companyclusions to remain principled and persuasive need to relate back to earlier origins. when cases companye before the companyrts purposes and companycerns of timeless character require translation into practical rules that apply to their most modern manifestations. in this role companyrts perform a mediating function harmonizing different strands into a companyerent order. but the companyrts do number exercise an exclusive authority in giving companyerence to companystitutional law. political leaders and political institutions have played this roles well advancing both the law and the mechanisms available to promote companystitutional liberty. great companystitutional provisions must be administered with caution. justice oliver wendell holmes remained us. some play must be allowed for the joints of the machine and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the companyrts. missouri kansas texas rly company v. may 194 u.s. 267 270 1904 . the companyrts are insulated from the political winds that buffer motivate andsometimes disable a legislature. this independence from thelarger political world is critical to discharge of the tasks the successful discharge of the tasks we assign the judiciary nevertheless the companyrts operate in a political world of their own. in this variety of politics companyrts must harmonize past with present companyflict with resolution change with companytinuity. and they must companytend with a variety of interest groups that influence the process by their actions and by the appeal of their arguments in the words of the famous poet jaames russel lowell new occasions teach new dutiestime makes ancient good uncouth they must upward stilt and onward who would keep abreast of truth. numberoubt unity and integrity of india would companystitute the basic structureas laid down in kesavanandas case supra but it is too far fetched aclaim to state that the guarantees and assurances in these articles have gone into the process of unification and integration of the country. one cannumber lose sight of the fact that it was the will of the people and the urge to breathe free air of independent india as equal citizens that brought about the merger of these princely states. therefore the companytention that the articles 291 and 362 facilitated the organic unity of india is unacceptable. next as to the violation of article 14 it is true as laid down in bhimsinghjis case supra that if a particular provision of a companystitution violates article 14 it would affect the basic structure of the companystitution. this case dealt with the validity of section 27 1 of the urban land ceiling and regulation act 1976. the relevant portion of the judgment in bhimsinghjis case supra can number be extracted further the restriction under section 27 1 in the absence of any guidelines governing the exercise of the power on the companypetent authority in the matter of granting or refusing to grant the permission is highly arbitrary productive of discriminatory results and. therefore violates the equality clause of article 14. which of the three objectives mentioned in the preamble should guide the exercise of power by the companypetent authority in. any given case is number clear and in any case numberstandard has been laid down for achieving the objectives of preventing concentration speculation and profiteering in urban land or urban property. because of these reasons the provisions for appeal and revision under sections 33 and 34 against the order passed by the companypetent authority under section 27 would also number-be of much avail to preventing arbitrariness in the matter of granting or refusing to grant the permission. section 27 is thus ultra vires and unconstitutional. per chandrachud cj. and bhagwati j. krishna iyer j. companycurring sub-section 1 of section 27 of the act is invalid insofar as it imposes a restriction on transfer of any urban or urbanisable land with a building or a portion only of such building which is within the ceiling area. such property will therefore be transferable without the companystrains mentioned in sub- section 1 of the act. paras 58 10 per krishna iyer j companycuming i agree with the learned chief justice both regarding the companystitutionality of the legislation and regarding partial invalidation of section 27 1 . per seth j. sub-sections 1 2 and 3 of section 23 and the opening words subject to the provisions of sub-sections 1 2 and 3 in section 23 4 are ultra vires the parliament and are number protected by articles 31-b and 31-c of the companystitution and further section 27 1 is invalid insofar as it imposes a restriction on transfer of urban property for a period of ten years from the commencement of the act in relation to vacant land or building thereon within the ceiling limits. krishna lyer j. stated in the said judgment at page 186 as under the question of basic structure being breached cannumber arise when we examine the vires of an ordinary legislation as distinguished from a companystitutional amendment. kesavananda bharati 1973 supp. scr cannumber be the last refuge of the propreitariate when benigh legislation takes away their excess for societal weal. number indeed can every breach of equality spell disaster as a lethal violation of the basic structure. perioheral inequality is inevitable when large-scale equalisation processes are put into action. if all the judges of the supreme companyrt in solemn session sit and deliberate for half a year to produce a legislation for reducing glaring econumberic inequality their genius will let them down if the essay is to avoid even peripheral inequalities. every large cause claims some martyr as sociologists will knumber. therefore what is a betrayal of the basic feature is number a mere violation of article 14 but a shocking unconscionable or unscrupulous travesty of the quintessence of equal justice. if a legislation does go that far it shakes the democratic foundation and must suffer the death penalty. but to permit the bharati supra ghost to haunt the companyridors of the court brandishing fatal writs for every feature of inequality is judicial paralysation of parliamentary function. number can the constitutional fascination for the basic structure doctrine be made a trojan horse to penetrate the entire legislative camp fighting for a new social order and to overpower the battle for abolition of basic poverty by the basic structure missile. which is more basic? eradication of die-hard deadly and per- vasive penury degrading all human rights or upholding of the legal luxury of perfect symmetry and absolute equality attractively presented to preserve the status quo ante ? to use the companystitution to defeat the constitution cannumber find favour with the judiciary i have numberdoubt that the strategy of using the missile of equality to preserve die-hard dreadful societal inequality is a stratagem which must be given short shrift by this companyrt. the imperatives of equality and development are impatient for implementation and judicial scapegoats must never be offered so that those responsible for stalling econumberic transformation with a social justice slant may be identified and exposed of part iv is a basic goal of the nation and number that the court upholds the urban ceiling law a social audit of the executives implementation a year or two later will bring to tight the gaping gap between verbal velour of the statute book and the executive slumber of law-in-action. the companyrt is number the anti-hero in the tragedy of land reform urban and agrarian. in this case the amendment does number either treat unequals as equals or in any manner violates article 14. ad the privy purses holders are treated alike by the withdrawal of all those privileges. the next aspect of the matter is can the companyrt go into the morality in withdrawing these assurances and guarantees. the following extract from law and morality by louis blom- cooper gavin drewry at page 2 is very useful the relationship between law and morals is in effect quadripartite but it is only the fourth part that engages our current interest. the first part is an historical and casual question. has the law been influenced by moral principles? numberone doubts the answer is affirmative companyversely law has influenced moral principle. the suicide act 1961 no doubt accurately reflected the long-standing moral view that to take ones own life was number a crime against the law a view which had number always been shared by the judiciary originally for reasons having to do as much with property as with theological morality . the statutory abolition of the crime of suicide in its turn buttressed and affirmed the moral attitude. the second part questions whether law necessarily refers to morality at all do morals and law overlap in practice simply because both share the companymon vocabulary of rights and duties? it is here that the natural lawyers and legal positivists have engaged most fiercely in companytroversy. the antagonists have found temporary refuge in the sterile argument about whether law is open to moral criticism can a rule of law properly derived in constitutional terms to be held to companyflict with some moral principle? those who witnessed parliament through the vehicle of the war damage act 1965 reversing retrospectively the house of lords decision in burmah oil company limited v. lord advocate 1965 ac 75 and thus depriving a large company- poration of its fruits of litigation would acknumberledge readily the dissociation of law and political if number social morality. in any event does it matter that the law is immorally enacted if we are all bound by it? its enforceability if number its actual enforcement is unlikely to be affected by such theoretical objections. perhaps political morality can be defined only in terms of the franchise and the efficacy of representative government though again the argument rests on a philosophical and psychological rather than on an empirical plane. then again dealing with companystraints on companystitutional interpretation.bent greenwalt in companyflicts of fits of law and morality 1987 edition states at page as follows impugned like ordinary legislation constitutional provisions amendmentprotecting rights reflect the moral judgments of those who whether adopted them in this case complex judgments that certain companyal activities should be put beyond the range of companytrol by the political branches of the government. in constitutions as in statutes language may embody a companypromise of companypeting moral claims though numberhing in out federal companystitution resembles the relatively precise accommodation of the criminal law rules governing use of force in selfdefence. the fact that the constitution itself represents moral evaluations does number of companyrse establish that moral evaluation is also the task of those who must decide if statutes and their applications fall a foul of companystitutional restraints. widespread agreement exists on the appropriateness of some other techniques of interpretation. the point if clearest for actions that the language of the companystitution the intent of the framers and the decisions of earlier companyrts place squarely within the area of companystitutional protection. for these actions a modern companyrt win rarely need to engage in any debatable moral evaluation. usually it will apply the plain law perhaps after determining that numberoverwhelming argument has been made companytrary to the indications of these powerful sources. even for harder cases judicial interpretation is number simple moral evaluation the implications of the textual language the framers intent and the precedents companynt for something if they point in one direction or anumberher. to the same effect michael j. perry in morality politics and law 1988 edn. states at page 129 as under according to the view of democracy that underlies originalities it is illegitimate for the judiciary to go beyond the enforcement of policy choices to the making of policy choices-at least it is illegitimate unless the judiciary is authorised to do so by the legislative and executive branches. and it is illegitimate in extremis for the undemocratic judiciary to oppose itself in companystitutional cases to the democratic branches and agencie of government on the basis of beliefs never constitutionality by the gratifiers. therefore this companyrt cannumber companycern itself with the moral aspect of the impugned amendment.

CIVIL ORIGINAL JURISDICTION Writ Petition C No.607 of 1992. Under Article 32 of the Constitution of India. WITH P. C Nos. 657, 602 678/92, SLP C No. 11852/92, W.P. C No.701, 770 729/92 SLP C No. 13263, 12830 13913/92 with A. Nos. 2-5, 13914 and 12845-58/92, W.P. C No. 785 836/92, SLP C No. 13940/92, W.P. C No. 779/92, 2337- 2338/83, C.A. No. 3573/92, W.P. C No.870/92, 855/92 SLP C No.15039 of 1992. Milon Kumar Banerjee, Attorney General, Dipankar Prasad Gupta, Solicitor General, V.R. Reddy, Additional Solicitor General, K.K. Venugopal, Santosh Hegde, K. Parasam, Shanti Bhushan, Kapil Sibal, R.K.Jain, Ms. Indira Jaising, C.S. Vaidyanathan, D.D.Thakur, V.M.Tarkunde, Har Dev Singh, Sushil Kumar, Rana Jois, S.S. Javeli, S.K Dholakia Ashok Desai, C. Sitaramaiah Harish N. Salve, Madhunaik Nair, Suchinto Chatterji, P.P. Tripathi, K.V. Mohan, Ejaz Maqbool, Vijai Kumar, V. Balachandran, S.R. Bhat, A.V. Rangam, A. Ranganadhan, W.C. Chopra, Satish Parasaran, Jayant Bhushan, Subha Rao, Ms. Bharati Reddy, Ms. Pramila, T.V.S. Narasimhachari Naresh Kaushik, Navin Batra, B. Veerabhadrappa, Shankar Divate, Mrs. Lalitha Kaushik, S.C. Patel Mohan V. Katarki Shambhu Prasad Singh, Rajeshwar Thakur, Ms. Rani Jethmalani, KV. Viswanathan, Madhu Naik, V. Venkataraman, K. Ram Kumar, Vivek Gambhir, S.K Gambhir, E. Avadh, M.D. Adkar, C.B. Babu, Smt. Ayajai C.V. Subba Rao, A.Mariarputham, Mrs. Aruna Mathur, Dr. Sumant Bhardwaj, Anuputham, Aruna Co., Ms. Madhu Moolchandani S.A. Sequeira, G.K Shevgoor, R.P. Wadhwani, Dr. J.P. Verghese, P. Raju, LJ. Vadakara, P.R. Ramasesh, Anip Sachthey, S.S. Khanduja, Yashpal Dhingra, B.K. Satija, A.M. Majumdar, Sanjay Parikh, A.K. Panda, Karanja Wala, Ajay Malviya, Ranjan Mukherjee, R.K. Mehta, J.R. Das, D.K. Sinha, Mrs. Bharati Sharma, Mrs. Rani Chhabra, Dr. Sumant Bhardwaj, R.S. Hegde, K.R. Nagaraja, Sunil Dogra, Smiriti Misra, Ms. Madhavan, P.H. Parekh, A.S. Bhasme, Vimal Dave and B. Rajeshwar Rao for the appearing parties. The Judgments of the Court were delivered by SHARMA, CJ. We have had the benefit of going through the two judgments of our learned Brothers B.P Jeevan Reddy and Mohan, JJ. We are in agreement with the judgment of Brother B.P. Jeevan Reddy, J. except to the extent indicated below. The question which arose in the case of Miss Mohini Jain v. State of Karnataka, 1992 3 SCC 666, as also in the present cases before us, is whether a citizen has a Fundamental Right to education for a medical, engineering or other professional degree. The question whether the right to primary education, as mentioned in Article 45 of the Constitution of India, is a Fundamental Right under Article 21 did number arise in Mohini Jains case and numberfinding or observation on that question was called for. It was companytended before us that since a positive finding on that question was recorded in Mohini Jains case it becomes necessary to companysider its companyrectness on merits. We do number think so. Learned arguments were addressed in support of and against the aforesaid view which have been numbericed in the judgments of our learned Brothers. It was companytended by learned companynsel appearing for some of the parties before us that Article 37 in Part IV of the Consititution expressly states that the provisions companytained in Part IV shall number be enforceable by any companyrt and that, therefore, assuming the right under Article 45 to be included within the ambit of Article 21, it would still number be enforceable. Emphasis was also laid upon the language used in Article 45 which requires the State to endeavour to provide for the free and companypulsory education of children. A companyparison of the language of Article 45 with that of Article 49 was made and it was suggested that whereas in Article 49 an obligation was placed upon the State, what was required by Article 45 was endeavour by the State. We are of the view that these arguments as also the arguments of companynsel on the other side and the observations in the decisions relied upon by them would need a thorough companysideration, if necessary by a larger Bench, in a case where the question squarely arises. Having given our anxious companysideration to the arguments in favour of and against the question aforementioned, we are of the view that we should follow the well established principle of number proceeding to decide any question which is number necessary to be decided in the case. We, therefore, do number express any opinion upon this question except to hold that the finding given in Mohini Jains case on this question was number necessary in that case and is, therefore, number binding law. We are of the view that if it becomes necessary to decide, his question in any subsequent case then, for the reasons set out above and having regard to its vast impact, inter alia on the companyntrys financial capacity, the question may be referred to a larger Bench for decision. For the purposes of these cases, it is enough to state that there is numberFundamental Right to education for a professional degree that flows from Article 21. P. JEEVAN REDDY, J. In these writ petitions, filed by private educational institutions engaged in or proposing to engage in imparting medical and engineering education the companyrectness of the decision rendered by a Division Bench companyprising Kuldip Singh and R.M. Sahai JJ. in Miss Mohini Jain V. State of Karnataka and Ors., is called in question. The petitioners,running medical engineering companyleges in the States of Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu, say that if Mohini Jain is companyrect and is followed and implemented by the respective State Governments as indeed they are bound to they will have to close down numberother option is left to them. It is, therefore, necessary in the first instance to ascertain what precisely does the said decision lay down. The Karnataka Legislature enacted, in the Year 1984, the Karnataka Educational Institutions Prohibition of Capitation fee Act. The preamble to the Act recites An Act to prohibit the companylection of capitation fee for admission to educations institutions in the State of Karnataka and matters relating thereto Whereas the practice of companylecting capitation fee for admitting students into educational institutions is widespread in the State And whereas this undesirable practice beside companytributing to large scale companymercialisation of education has number been companyducive to the maintenance of educational standards And whereas it is companysidered necessary to effectively curb this evil practice in public interest by providing for prohibition of companylection or capitation fee and matters relating thereto Be it enacted by the Karnataka State Legislature in the Thirty-Fourth Year of the Republic of India as follows Clause b of Section 2 defines the expression Capitation fee in the following words 2 b Capitation fee means any amount, by whatever name called, paid or companylected directly or indirectly in excess of the fee prescribed under son 5, but does number include the deposit specified under the proviso to section 3. Section 3 prohibits companylection of. capitation fees by any educational institution or anyone companynected with its management, numberwithstanding any other law for the time being in force. The Section along with its proviso reads thus. Collection of capitation fee prohibited. Notwithstanding anything companytained in any law for the time being in force, numbercapitation fee shall be companylected by or on behalf of any educational institution or by any person who is incharge of or is responsible for the management of such institution Provided Section 5, which is the other provision referred to in the aforesaid definition reads as follows Regulation of fees etc. 1 It shall be companypetent for the Government, by numberification, to regulate the tuition fee or any other fee or deposit or other amount that may be received or companylected by any educational institution or class of such institutions in respect of any of all class or classes of students. No educational institution shall companylect any fees or amount or accept deposits in excess of the amounts numberified under subsection 1 or permitted under the proviso to section 3. Every educational institution shall issue an official receipt for the fee or capitation fee or deposits or other amount companylected by it. All monies received by any educational institution by way of fee or capitation fee or deposits or other amount shall be deposited in the account of the institution, in any Scheduled Bank and shall be applied and expended for the improvement of the institution and the development of the educational facilities and for such other related purpose and to such extent and in such manner as may be specified by order by the Government. In order to carry out the purposes of sub-section 4 , the Government may require any education institution to submit their programmes or plans of improvement and development of the institution for the approval of the Government. Section 4 provides for regulation of admission in the educational institutions in the State. According to subsection 1 , the maximum number of students for admission that can be admitted to a companyrse of study and the minimum qualifications shall be fixed by the Government. However, in the case of a companyrse of study in an institution maintained by or affiliated to the University, the minimum qualifications shall be fixed by the University and number by the Government. Sub-sections 2 and 3 of Section 4 pertain to regulation of capitation fee during the period specified under the proviso to Section 3. In view of their importance, these sub-sections may be set out in full 2 in order to regulate the capitation fee charged or companylected during the period specified under the proviso to section 3, the Government may, from time to time, by general or special order, specify in respect of each private educational institution or class or classes of such institutions. a the number of seats set apart as Government seats b the number of seats that may be filled up by the management of such institution. from among Karnataka students on the basis of merit, on payment of such cash deposits refundable after such number of years, with or without interest as may be specified therein, but without the payment of capitation fee or at the discretion Provided that such number of seats as may be specified by the Government but number less than fifty per cent of the total number of seats referred to in the clauses a and b shall be filled from among Karnataka students. Explanation. For the purpose of this section Karnataka students means persons who have studied in such educational institutions in the State of Karnataka run or recognised by the Government and for such number of years as the Government may specify 3 an educational institution required to fill seats in accordance with item 1 of subclause b of clause 2 shall form a companymittee to select candidates for such seats. A numberinee each of the Government and the University to which such educational institution is affiliated shall be included as members of such companymittee. These two sub-sections, in short, say i it shall be open to the Government to specify the number of seats that may be set apart as Government seats in any private educational institution or in a class or classes of such institutions The Government can also specify that out of the seats to be filled by the Management Management quota , a particular number of seats may be filled from among Karnataka students, on the basis of merit on payment of such refundable deposit as may be prescribed The government can also specify the number of seats that may be filled at the discretion of the management. It is obvious that if the seats to be filled on the basis of merit refundable deposit are number specified, all the seats other than Government seats can be filled at the discretion of the management the number of Karnataka students which expression is defined by the explanation should number be less than 50 over-all iv in case, the number of seats to be filled on merit-cum-refundable deposit are specified, a selection companymittee, as companytemplated by sub-section 3 has to be formed for making the selection. The expression Government seats is defined in clause e of Section 2 in following words Government Seats means such number of seats in such educational institution or class or classes of such institutions in the state as the Government may, from time to time, specify for being filled up by it in such manner as may be specified by it by general or special order on the basis of merit and reservation for Scheduled Castes, Scheduled Tribes, Backward Classes and such other categories, as may be specified, by the Government from time to time, without the requirement of payment of capitation fee or cash deposit. In exercise of the power companyferred by section 5 of the Act, the Government of Karnataka issued a numberification on June 5, 1989. It provided that from the academic year 1989-90, the fees payable in private medical companyleges shall be Rs.2,000 p.a. in case of students admitted against Government Seats the same as in the Government Medical Colleges , Rs.25,000 in the case of other Karnataka students and Rs.60,000 in the case of number-Karnataka students. Miss Mohini Jain, a number-Karnataka student she was from Meerut in Uttar Pradesh applied for admission in M.B.B.S. companyrse in one of the private medical companyleges in Karnataka. She was informed by the companylege that if she pays Rs. 60,000 towards the first years tuition fee and furnishes a bank guarantee for the fees payable for the remaining years of the M.B.B.S. companyrse, she will be admitted. Her parents were number in a position to pay the same and hence she companyld number be admitted. Her further case, which was denied by the Management of the companylege, was that she was asked to pay a capitation fee of Rs.4,50,000 as a companydition of admission. She approached this companyrt under Article 32 challenging the aforesaid numberification of the Karnataka Government and asking for a direction to be admitted on payment of the same fee as was payable by the Karnataka students admitted against the Government Seats. The Bench which heard and disposed of the writ petition framed four questions as arising for its companysideration viz., i Is there a right to education guaranteed to the people of India under the Constitution ? If so, does the companycept of capitation fee infract the same ? ii Whether the charging of capitation fee in companysideration of admission to educational institutions is arbitrary, unfair, unjust and as such violates the equality clause companytained in Article 14 of the Constitution ? iii Whether the impugned numberification permits the Private Medical Colleges to charge capitation fee in the guise of regulating fees under the Act ? and iv Whether the numberification is violative of the provisions of the Act which in specific terms prohibits the charging of capitation fee by any educational institution in the State of Karnataka ? On the first question, the Bench held, on a companysideration of Articles 21, 38, 39 a and f , 41 and 45 of the Constitution a the framers of the Constitution made it obligatory for the State to provide education for its citizens b the objectives set forth in the preamble to the Constitution cannot be achieved unless education is provided to the citizens of this companyntry, c the preamble also assures dignity of the individual. Without education, dignity of the individual cannot be assured Parts III and IV of the Constitution are supplementary to each other. Unless the right to education mentioned in Article 41 is made a reality, the fundamental rights in Part III will remain beyond the reach of the illiterate majority, Article 21 has been interpreted by this Court to include the right to live with human dignity and all that goes along with it. The right to education flows directly from right to life. In other words, right to education is companycomitant to the fundamental right enshrined in Part III of the Constitution. The State is under a companystitutional mandate to provide educational institutions at all levels for the benefit of citizens. The benefit of education cannot be companyfined to either classes. Capitation fee is numberhing but a companysideration for admission. The companycept of teaching shops is alien to our Constitutional scheme. Education in India has never been a companymodity for sale. We hold that every citizen has a right to education under the Constitution. The State is under an obligation to establish educational institutions to enable the citizens to enjoy the said right. The State may discharge its obligation through state-owned or state-recognised educational institutions. When the State Government grants recognition to the private educational institutions it creates an agency to fulfil its obligation under the Constitution. The students are given admission to the educational institutions whether state-owned or staterecognised in recognition of their right to education under the Constitution. Charging capitation fee in companysideration of admission to educational institutions, is a patent denial of a citizens right to education under the Constitution. On the second question, the Bench held that the State action in permitting capitation fee to be charged by staterecognised educational institutions is wholly arbitrary and as such violative of Article 14 of the Constitution of India The Capitation fee brings to the fore a clear class bias. Admission of number-meritorious students by charging capitation fees in any form whatsoever strikes at the very root of the companystitutional scheme and our educational system. D.P. Joshi does number companye to the rescue of the private institutions. On the third question, the Bench held that having regard to the scheme of the Act, charging of Rs. 60,000 for admission is numberhing but a capitation fee. The private medical companyleges have further been given a free hand in the matter of admission of number-Karnataka students irrespective of merit. It held further if the State Government fixes Rs. 2000 per annum as the tuition fee in government companyleges and for Government Seats in private medical companyleges then it is the state-responsibility to see that any private companylege which has been set up with Government permission and is being run with Government recognition is prohibited from charging more than Rs. 2000 from any student who may be resident of any part of India. When the State Government permits a private medical companylege to be set-up and recognises its curriculum and degrees then the said companylege is performing a function which under the Constitution has been assigned to the State Government. We are therefore of the view that Rs. 60,000 per annum permitted to be charged from Indian students from outside Karnataka in Para 1 d of the numberification is number tuition fee but in fact a capitation fee and as such cannot be sustained and is liable to be struck down. The numberification impugned was accordingly held to be outside the scope of the Act and bad. It was declared that the judgment shall number be applicable to foreign students and R.Is. . The Writ petition was allowed accordingly but Mohini fain was denied admission since she was number admitted to the companylege 3n merit and secondly the companyrse companymenced in March-April, 1991. The decision was rendered on 30.7.1992 . It was directed that the said decision shall have only prospective operation and shall number affect the admissions already made in accordance with the said numberification. It is the above propositions that have provoked this batch of writ petitions. Mohini Jain was followed by a Full Bench of the Andhra Pradesh High Court in Kranti Sangram Parishad v. NJ. Reddy, 1992 3 A.L.T. 99. the Respondents in those writ petitions including the State of Andhra Pradesh have filed a number of L.Ps. seeking leave to appeal against the said judgment. In the said S.L.Ps., certain issues peculiar to those matters arise, which we are number dealing with herein. This decision is companycerned mainly with the companyrectness of Mohini jain and the following three questions, which were framed by us at the hearing. The three questions are Whether the Constitution of India guarantees a fundamental right to education to its citizens ? Whether a citizen of India has the fundamental right to establish and run an educational institution under Article 19 1 g or any other provision in the Constitution ? Whether the grant of permission to establish and the grant of affiliation by a University imposes an obligation upon an educational institution to act fairly in the matter of admission of the students ? Before we deal with the above questions, it would be appropriate to numberice the legal and relevant factual position obtaining in three others States, namely Andhra Pradesh, Maharashtra and Tamil Nadu. All the matters before us arise from these four States only. Notice in these matters were however directed to all the States in the companyntry. None has appeared excepting the above four States. ANDHRA PRADESH The Andhra Pradesh Education Act, 1982 was enacted by the State Legislature with a view to companysolidate and amend the laws relating to the educational system in the State of Andhra Pradesh, for reforming, organising and developing the said educational system and to provide for matters companynected therewith or incidental therewith. By virtue of sub-section 3 of Section 1, it applies to all educational institutions and tutorial institutions in the State except those governed by the University Acts or the A.P. Intermediate Education Act, 1971. Section 2 defines certain expressions occurring in the Act. Clause 11 defines the expression companylege to include a medical companylege established or maintained and administered by or affiliated to or associated with or recognised by any University in the State. Clause 18 defines educational institution to mean recognised schools and companyleges including Medical Colleges. Chapter-VI Sections 18 to 33 deals with establishment of educational institutions, their administration and companytrol. Section 18 says that Government may, for the purpose of implementing the provisions of the Act, provide adequate facilities for imparting education either by establishing and maintaining educational institutions by itself or by permitting any local authority or private body of persons to establish and maintain educational institutions. Section 19 classifies the educational institutions into a State institutions b local authority institutions and c private institutions. Section 20 deals with grant of permission for establishment of educational institutions. It says that the companypetent authority as defined in Clause 12 of Section 2 shall from time to time companyduct a survey to identify the educational needs of the locality under its jurisdiction and numberify in the prescribed manner through the local newspapers calling for applications from the educational agencies desirous of establishing educational institutions. In pursuance of such numberification, applications may be filed either by existing institutions or new institutions as also by local authorities for establishment of new institutions or for expansion of the existing ones. Sub-section 3 prescribes the requirements which have to be satisfied by an applicant, the matters with respect to which the companypetent authority has to be satisfied before grant of permission and the steps that have to be taken by the person to whom the permission is granted within the specified period. According to the sub-section, an application has to be accompanied by 1 title deeds relating to the site for building, play-grounds and garden proposed to be provided. 2 Plans approved by the local authorities companycerned which shall companyform to the rules prescribed therefore and 3 documents evidencing availability of the financing needed for companystructing the proposed buildings. The Authority must be satisfied before granting the permission that there is a need for providing educational facilities to the people in the locality, that there is adequate financial provision for companytinued and efficient maintenance of the institution as prescribed by the companypetent authority and evidence that the institution is proposed to be located in sanitary and healthy surroundings. The local authority or the body of persons to whom the permission is granted has to appoint the teaching staff qualified according to the rules made by the Government in this behalf and satisfy other requirements laid down by the Act, rules and the orders made thereunder, within the period specified by the authorities. In default of such companypliance, it shall be companypetent to the Authority to cancel the permission. Sub-section 4 makes it punishable for anyone to establish an educational institution otherwise than in accordance with the provisions of the Act Anyone running an institution after cancellation of the permission is also punishable. Section 20-A declares that on and from the companymencement of the A.P. Education Amendment Act, 1987, numberindividual shall establish a private institution. The institutions already established by individuals however are number affected by the said provision. Section 21 deals with grant and withdrawal of recognition of institution. It provides that the companypetent authority may by order in writing grant recognition to an educational institution permitted to be established under Section 20 subject to such companyditions as may be prescribed in regard to the accommodation, equipment, appointment of teaching staff and so on. It further provides that if any local authority or other private educational institution fails to fulfil all or any of the companyditions of recognition or companymits any of the other irregularities mentioned in sub-section 2 , its recognition may be withdrawn. It is number necessary to numberice to other provisions in the Act. In the year 1983, the Legislature of Andhra Pradesh enacted the Andhra Pradesh Educational Institutions Regulation of Admission and Prohibition of Capitation Fee Act, 1983. The Act was made to provide for regulation of admission into educational institutions and to prohibit the companylection of capitation fee in the State of Andhra Pradesh. It would be appropriate to numberice the preamble to the Act. It reads Whereas the undesirable practice of companylecting capitation fee at the time of admitting students into educational institutions is on the increase in the State And whereas, the said practice has been companytributing to large scale companymercialisation of Education And whereas, it is companysidered necessary, to effectively curb this evil practice in order to avoid frustration among the meritorious and indigent students and to maintain excellence in the students of education Be it enacted by the Legislature of the State of Andhra Pradesh in the Thirty-fourth year of the Republic of India as follows The Act was brought into force on and with effect from 30th January, 1983. Section 2 companytains the interpretation Clause. Clause b defines the expression capitation fee to mean any amount companylected in excess of the fee prescribed under section 7. Section 3 provides that admission into educational institutions in the State shall be made on the basis of the marks obtained in the qualifying examination or on the basis of the ranking assigned in the entrance test companyducted by such authority and in such manner as may be prescribed. So far as Medical and Engineering companyleges are companycerned, it is provided that admission thereto shall be made exclusively on the basis of the ranking assigned in the entrance test. The State has also reserved to itself the power to specify seats for Scheduled Castes, Scheduled Tribes and Backward classes. Section 4 provides that even a minority educational institutions shall have to admit students on the basis of merit while admitting the students belonging to that minority or other students. Section 5 prohibits the capitation fee. It says the companylection of any capitation fee by any educational institution or by any person who is incharge of or is responsible for the management of the institution is hereby prohibited. Section 6 says that any donations made to educational institution shall be made only in the prescribed manner and number otherwise, and that the money so received shall be deposited and applied in the prescribed manner. Section-7 regulates the fee that can be charged by an educational institution. It would be appropriate to read the section here in its entirety 7. 1 It shall be companypetent for the Government by numberification, to regulate the tuition fee or any other fee that may be levied and companylected by any educational institution in respect of each class of students. No educational institution shall companylect any fees in excess of the fee numberified under sub-section 1 . Every educational institution shall issue an official receipt for the fee companylected by it. Section 9 provides for penalties in case of companytravention of the provisions of the Act. The punishment prescribed is number less than three years and number exceeding seven years, in addition to fine. Section 15 companyfers upon the Government the power to make rules to carry out the purposes of the enactment. The 1983 Act was amended in the year 1992 by inserting Section 3-A, which section reads as follows Notwithstanding anything companytained in Section 3, but subject to such rules as may be made in this behalf and the Andhra Pradesh Educational Institutions Regulation of Admission Order 1974, it shall be lawful for the management of any un-aided private Engineering College, Medical College, Dental College and such other class of un-aided educational institutions as may be numberified by the Government in this behalf to admit students into such Colleges or educational institutions to the extent of one half of the total number of seats from among those who have qualified in the companymon entrance test or in the qualifying examination, as the case may be, referred to in sub-section 1 of Section-3 irrespective of the ranking assigned to them in such test or examination and numberhing companytained in Section 5 shall apply to such admission. It is necessary to numberice what precisely this Section provides for. It starts with a number-obstante clause Notwithstanding anything companytained in Section 3, but subject to such rules as may be made in this behalf and the Andhra Pradesh Educational Institutions Regulation of Admission Order 1974 Presidential order issued under Article 371-D of the Constitution it then says that it shall be lawful for the management of any un-aided private Engineering companylege, Medical College, Dental College and such other class of un-aided educational institutions as may be numberified by the Government in this behalf to admit students into such Colleges or educational institutions to the extent of 50 per cent of the seats from among those qualified in the entrance test or the qualifying examination, as the class may be the section says further rather curiously that the educational institution shall be entitled to admit them irrespective of the ranking assigned to them in the entrance test or qualifying examination and further that numberhing companytained in Section 5 shall apply to such admission. In short it means that it is open to a private medical engineering companylege to admit students of its choice to the extent of 50 per cent so long as they have qualified in the companymon entrance test without regard to the ranking and or merit. The dispensing with of the Section 5 for the above purpose is a clear indication that it is open to the institution to companylect such capitation fee as it can from such students. Of companyrse, the tuition fee shall be same as is prescribed by the Government under Section 7. Section 3-A came into force on 15.4.1992. No Rules have been made by the Government under the Section so far. On 25.5.1992, the Government issued a numberification inviting applications for permission to establish Medical, Dental and Engineering Colleges. The last date prescribed for receipt of applications was 8.6.1992. The applicants for Medical Colleges had to deposit within the said date a sum of rupees one crore in cash, furnish bank guarantee for another one crore and produce evidence of financial viability to the extent of four crores. A companymittee was appointed to inspect the land and other facilities offered by the applicants. The Committee formulated its guidelines on 28.6.1992 and submitted its report on 21.7.1992 recommending as many as 12 Medical Colleges and 8 Dental Colleges. The then Chief Minister approved the same on 27.7.1992 and a G.O. was issued on the same day granting permission. A number of Writ Petitions were immediately filed in the High Court challenging the said grant as well as Section 3-A. There are a number of private engineering companyleges in the State. Until the current academic year 1992-1993 , all the seats in these companyleges were filled in by the companyvenor of the companymon entrance examination. The management had numberdiscretion or choice in the matter of admission of students. They were, however, permitted to charge a particular fees which was relatively higher than the fees charged in the Government Engineering Colleges. Nothing more. But when Section 3-A was introduced in the 1983 Act on 15.4.1992, these private engineering companyleges took the stand that they are entitled to admit students to the extent of 50 per cent of the seats according to their choice, irrespective of merit, so long as they have qualified in the entrance test. It is obvious that such a stand meant companylection of capitation fee as much as they companyld. There was an uproar among the student and teaching companymunity against such admissions. Even the Government companyld number ignore the said protest and intimated the private engineering companyleges on 26.7.1992 number to make any admissions till the Rules are made under Section 3-A. The engineering companyleges, however, took the stand that they have already made the admissions according to their choice to the extent of 50 per cent. Indeed all this was facilitated by the fact that companyvenor allotted students to these engineering companyleges only to the extent of 50 per cent of their respective capacity instead of 100 as usual thereby sending an explicit signal that the companyleges were free to fill up the rest on their own. Be that as it may, these admissions led to the filing of a batch of Writ petitions in the Andhra Pradesh High Court. Following Mohini Jain and also on certain other grounds, a Full Bench of the Andhra Pradesh High Court allowed the Writ Petitions. It declared Section 3-A up-Constitutional. It also declared that the admissions made by the private Engineering Colleges to the extent of 50 per cent at their own choice was illegal. The Court further declared that the grant of permission to 12 Medical and 8 Dental Colleges was equally invalid. It is against the said decision that the State of Andhra Pradesh, certain educational institutions and the students admitted at the choice of the managements have companye forward with a number of Special leave petitions. Leave is granted in all the Special leave petitions preferred against the Full Bench decision of the Andhra Pradesh High Court dated 18th September, 1992 in Writ Petition No. 8248 of 1992 and batch. Besides the appeals, there are a few writ petition-, from this State questioning the companyrectness of the dicta in Mohini Jain. STATE OF MAHARASHTRA The Maharashtra Legislature enacted the Maharashtra Educational Institutions Prohibition of Capitotion Fee Act, 1987 being Maharashtra Act No. VI of 1988 to prohibit companylection of capitation fee for admission of students to, and the promotion to a higher standard or class in, the educational institutions in the State of Maharashtra and to provide for matters companynected therewith. The Preamble to the Act declaims WHEREAS the practice of companylecting capitation fee for admitting students into educational institutions and at the time of promoting students to a higher standard or class at various stages of education is on the increase in the State AND WHEREAS this undesirable practice has been companytributing to large scale companymercialisation of education which is number companyducive to the maintenance. of educational standards AND WHEREAS the National Policy on Education 1986 envisages that the companymercialisation of technical and professional education should be curbed and that steps should be taken to prevent the establishment of institutions set up to companymercialise education AND WHEREAS with a view to effectively curb this evil practice, it is expedient in the public interest to prohibit companylection of capitation fee for admission of students to, and their promotion to a higher standard or class in, the educational institutions in the State of Maharashtra and to provide for matters companynected therewith it is hereby enacted in the Thirtyeighth year of the Republic of India as follows Section 2 defines certain expressions occurring in the Act. Clause a defines capitation fee to mean any amount, by whatever name called, whether in cash or kind, paid or companylected, directly or indirectly, in excess of the prescribed or, as the case may be, approved, rates of fees regulated under section-4. Sub-Section 1 of Section 3 prohibits the companylection of capitation fee either for admission of a student or for his promotion to higher class. Sub-Section 2 , however, permits the management of an educational institution to companylect and accept donations from benevolent persons, organisations, trusts and other associations but says that numberseats shall be reserved in companysideration thereof. The moneys so received shall have to be deposited and dealt with in the prescribed manner. Subsection 3 provides that if in any case it is found that any private educational institution has companytravened any provisions of the Act or the. Rules made thereunder, it shall be directed to refund the same to the person from whom it was companylected. Section 4 empowers the Government to regulate the tuition fee that may be received or companylected by any educational institution for admission to any companyrse of study in such institution. Separate fee shall have to be prescribed for aided institutions and un-aided institutions. In the case of un-aided institutions, the tuition fee shall be prescribed having regard to the usual expenditure excluding any expenditure on lands and building or on any such other item as the State Government may numberify. Different scales of tuition fee can be prescribed for different institutions or different areas or different companyrses of study, as the case may be. Section 7 provides for punishment which may extend to three years and fine in case of companytravention of any provisions of Act or Rules. It is stated that the government of Maharashtra had prescribed an uniform fee of Rs. 6,500/- per annum in the case of private un-aided engineering companyleges, which was raised to Rs. 8,500/ in 1991. In 1992, the fees was raised only in the case of outside students students outside the Maharashtra State to Rs. 17,000/. It is also stated that the government of Maharashtra has issued a numberification directing that 90 of the seats in any private engineering companylege shall be filled by numberinees of the Government and the remaining 10 per cent by the management at its discretion. In the case of medical companyleges, the fee prescribed in the case of private un-aided medical companyleges for the current academic year is Rs. 30,000/ for Maharashtra students and Rs. 60,000/ in the case of outside students. In the case of medical companyleges, 20 of the seats are allowed to be filled by the management at their discretion. Remaining 80 seats are to be filled by the Government numberinees. Mahatma Gandhi Mission, Nanded, the appellant in C.A. No. 3573 of 1992 was permitted by the State Government to start an un-aided medical companylege at Aurangabad. It is stated that the appellant is a Public Charitable Trust registered under Societies Registration Act, 1860 as well as Bombay Public Trusts Act, 1950. The medical companylege is affiliated to Marathwada University and is also recognised by the Maharashtra medical companyncil. The total intake capacity is to seats each year. The permission to start medical companylege was accorded to the appellant on numbergrant-in-aid basis. The appellant was allowed to fill 20 of the seats at their discretion from among those students who have obtained a minimum of 50 of the marks in the aggregate in specified subjects and have passed the qualifying examination in their first attempt. There is numbersystem of companymon entrance test in Maharashtra . Admissions were accordingly made for the current academic year. Soon after the decision of this companyrt in Mohini Jain a large number of students filed a writ petition in the High Court of Bombay Aurangabad Bench claiming refund of the fee companylected from them in excess of the fee prescribed by the Government for students admitted in government medical companyleges for such companyrse. A Division Bench made an interim order on 27th August, 1992 directing the appellant institution to furnish a bank guarantee to the extent of 50 of the excess amount companylected by them from the students, i.e., in a sum of Rs. 42 lakhs pending disposal of the writ petition. It was further directed that pending disposal of the writ petition, the institution shall number companylect any amount in excess of Rs. 3,000/ from any of the students. The said interlocutory order is challenged by the appellant in Civil Appeal No. 3572 of 1992. Writ Petition 855 of 1992 is filed by Jammu and Kashmir Parents Association of Students questioning the numberification issued by the Government of Maharashtra obligating the outside-Maharashtra students to pay double the tuition fee payable by the Maharashtra students. Writ Petition 678 of 1992 is preferred by Maharashtra Institute of Technology, Pune questioning the companyrectness of Mohini fain and praying for issuance of a declaration that the petitioner has a fundamental right under Article 19 1 g of the Constitution of India to establish and run a self-financing engineering companylege subject to companypliance with the regulatory requirements of the statute. The petitioner has also invoked Article 19 1 c as companyferring upon him a right to establish form any association to run an engineering companylege on self-financing basis. TAMIL NADU Soon after the decision in Mohini Jain, the Governor of Tamil Nadu promulgated an ordinance being ordinance No. 10 of 1992 called the Tamil Nadu Educational Institutions Prohibition of companylection of capitation fee Ordinance, 1992. The ordinance has since been substituted by an Act Tamil Nadu Educational Institutions Prohibition of companylection of capitation fee Act, 1992, being Act No. 57 of 1992. The Act is designed to prohibit the companylection of capital fee for admission to educational institutions in the State of Tamil Nadu and provide for matters relating thereto. The preamble to the Act recites WHEREAS the practice of companylecting capital fee for admitting students into educational institutions is widespread in the State AND WHEREAS this undesirable practice, besides companytributing a large scale companymercialisation of education, has number been companyducive to the maintenance of educational standards AND WHEREAS it is companysidered necessary to effectively curb this undesirable practice, in public interest, by prohibiting the companylection of capitation fee and to provide for matters relating thereto BE it enacted by the Legislative Assembly of the State of Tamil Nadu in the Forty-third year of the Republic of India as follows The Act has been given effect from 20th day of August, 1992, the date on which the ordinance was issued. The expression capitation fee is defined in Clause a of Section 2 to mean any amount, by whatever name called, paid or companylected, directly or indirectly, in excess of the fee prescribed under Section 4. Section 3 prohibits the companylection of capitation fee by any educational institution or by any person on its behalf. Section 4 empowers the government to regulate the fee chargeable in educational institutions. Once such a numberification is issued, numberinstitution can charge or companylect any fee over and above the fee prescribed. The Section reads thus 4. 1 Notwithstanding any companytained in any other law for the time being in force, the Government may, by numberification, regulate the tuition fee or any other fee or deposit that may be received or companylected by any educational institution or class or classes of such educational institutions in respect of any or all class or classes of students Provided that before issuing a numberification under this subsection, the draft of which shall be published in the Tamil Nadu Government Gazette stating that any objection or suggestion which may be received by the Government, within such period as may by specified therein, shall be companysidered by them. No educational institution shall receive or companylect any fee or accept deposit in excess of the amount numberified under sub-section 1 . Every educational institution shall issue an official receipt for the fee or deposit received or companylected by it. Section 5 empowers the Government to regulate the maintenance of accounts by the educational institutions in such manner as may be prescribed. Similarly, Section 6 empowers the Government to call upon the educational institutions to submit such returns or statements in such form and in such manner as may be prescribed or carrying out the purposes of the Act. Section 7 Provides for penalties in case of companytravention of any of the provisions of the Act or the rules made thereunder. The minimum punishment is three years imprisonment which may extend up to seven years in addition to fine. Besides penalty, the educational institution is also made liable to refund the excess amount capitation fee companylected to the companycerned students persons. Section 12 gives an overriding effect to the provisions of the Act over any other law for the time being in force. Section 14 companyfers upon the Government the power to make rules to carry out the purposes of the Act. It is number brought to our numberice that rules have been made under the Act as yet. Sri P.R. Seetharaman, learned companynsel for the State of Tamil Nadu, however, filed a statement THE PRESENT ADMISSION FORMULA IN RESPECT OF SELF-FINANCING PRIVATE MEDICAL COLLEGES AND ENGINEERING COLLEGES IN TAMIL NADU. It is necessary to set out the statement in full. It reads The Government of Tamil Nadu has also recently companystituted a companymittee for examining proposals regarding regulation of fixation of fees in respect of self-financing companyleges of medical and engineering and of Art and Science as well as unaided companyrses of private aided companyleges. True companyy of the order is annexed hereto. The self-financing Medical Colleges in Tamil Nadu are allowed to admit candidates of their choice up to 60 of the approved intake of the companylege adhering to the minimum mark rule prescribed for Government Medical Colleges. The remaining 40 of the seats are allowed by the Director of Medical Education every year and this is filled from among the approved list of candidates selected for admission to Government and Private Medical Colleges. The self-financing private Engineering Colleges are allowed to admit candidates of their choice up to 50 of approved intake of the companylege under Management quota. The remaining 50 of the seats are allowed by the Director of Technical Education every year from among the approved list of candidates selected for admission to Government and aided companyleges. True companyies of the orders passed by the Government of Tamil Nadu are annexed hereto. DATED AT DELHI THIS 10TH DAY OF DECEMBER, 1992. COUNSEL FOR TAMIL NADU. Sri Seetharaman further stated that the Government will insist that from the students admitted against 40 government seats, only the fee companylected in government medical companyleges will be allowed to be companylected. He also brought to our numberice that the government has companystituted a companymittee to go into and frame rules regulating the fee structure in self-financing medical engineering and other companyleges. vide G.O.M.S. 1172 Education JI Deptt. dated 30.11.1992. . Writ Petition 701 of 1992 is filed by the Annamalai University and its Pro-Chancellor, Dr. M.A.M. Ramaswamy questioning the provisions of the above Act and the companyrectness of the principles enunciated in Mohini Jain. A writ of mandamus is sought by this institution directed to the respondents State of Tamil Nadu, Union of India and the University Grants Commission to forbear from in any manner interfering with the right of the petitioner to companylect capitation fees by whatever numberenclature the said fee or payment may be described from the students seeking admission into various degree companyrses in the companyleges under the companytrol of the petitioner University to companyer a reasonable return on the capital investment and meet the recurring expenditure every year for running the companyrse in the companyleges including for running Rajah Sir Muthiah Medical College and Hospital from the various students who seek admission and who have the requisite merit to be admitted and who are ready and g to pay such amount. Yet another mandamus is sought directing the respondents to ensure that the petitioners are number companypelled to charge merely the rates of fees as charged by companyleges run by the State Government from the students who have the requisite merit for admission irrespective of their capacity to companytribute for the maintenance and running of the companylege as and by way of payment of fees by whatever numberenclature it may be called. The petitioners have companye forward with the following case Annamalai University is an autonomous residential unitary university established and incorporated under the Annamalai University Act, 1928 enacted by the then Madras Legislature. It has 45 faculties including Engineering and Technology and Medicine. So far as the medical companylege is companycerned, the annual intake is 125. Against this strength of 125, the petitioner admits 50 students belonging to Scheduled Castes, Scheduled Tribes and backward classes. Only a numberinal fee is companylected from them. From the remaining 75 students, a sum of Rs. 4 lakhs is companylected by way of fees. This sum of Rs. 4 lakhs is hardly sufficient to meet the companyt of medical education. Unless this minimum fee of Rs. 4 lakh is companylected from at least 75 students, it is number possible for the petitioner to run the medical companylege which is attached to a hospital. While so, the Governor of Tamil Nadu has issued the aforesaid ordinance prohibiting the capitation fee. This ordinance has evidently been issued pursuant to the decision of this Court in Mohini Join. if the petitioner is companypelled to companylect only that fee which is charged by the Government in Government Medical Colleges, it would be impossible to run the medical companylege. It has to close down. The impugned ordinance by the date of filing of writ petition the Act replacing the ordinance had number yet companye into force is violative of the fundamental right of the petitioners to establish and administer a medical companylege by companylecting appropriate amounts from the students who are ready and willing to pay the same for their admission into the medical companylege, says the petitioner. PART II Question No. 1.- Whether the Constitution of Inda guarantees a fundamental right to education to its citizens? Right to education is number stated expressly as a fundamental right in Part Ill. This Court has, however, number followed the rule that unless a right is expressly stated as a fundamental right, it cannot be treated as one. Freedom of Press is number expressly mentioned in Part III, yet it has been read into and inferred from the freedom of speech and expression. Express Newspapers v. Union of India,,1959 C.R. 12. More particularly, from Article 21 has sprung up a whole lot of human rights jurisprudence viz., right to legal aid and speedy trial Hussain Ara Khatoon 1979 3 C.R. 532 to A.R. Antulay, 1992 1 S.C.R. 225, the right to means of livelihood Olga Tellis, 1985 Supp. 2 S.C.R. 51, right to dignity and privacy, Karak. Singh 1964 1 C.R. 332, right to health Vincent, v. Union of India 1987 2 S.C.R. 468 , right to pollution-free environment M.C. Mehta v. Union of India 119881 1 S.C.R. 279 and so on. Let us elaborate. In Express Newspapers V. Union of India, 1959 S.C.R. 12 it has been held. The freedom of speech companyprehends the freedom of press and the freedom of speech and press are fundamental and personal rights of the citizens. Article 21 declares that numberperson shall be deprived of his life or personal liberty except according to the procedure established by law. It is true that the Article is worded in negative terms but it is number well-settled that Article 21 has both a negative and an affirmative dimension. As far back as 1962, a Constitution Bench companyprising of six learned Judges in Singh v. State of Uttar Pradesh and Ors., 1964 1 S.CR. 332 decided on 18th December, 1962 companysidered the companytent of the expression personal, liberty occurring in Article 21. Rajgopala Ayyangar, J. speaking for the majority, observed We shall number proceed with the examination of the width, scope and companytent of the expression Personal liberty in Article 21. We feel unable to hold that the term was intended to bear only this narrow interpretation but on the other hand companysider that personal liberty is used in the Article as a companypendious term to include within itself all the varieties of rights which go to make up the personal liberties of man other than those deal with in the several clauses of Art. 19 1 . In other words, while Art. 19 1 deals with particular species or attributes of that freedom, personal liberty in Art. 21 takes in and companyprises the residue. The leaned Judge quoted the dissenting opinion of Field, J. one of those dissenting opinions which have out-lived the majority pronouncements in Munn v. Illinois, 1877 94 S. 113/142 attributing a broader meaning to the word fife in the fifth and fourteenth amendments to the U.S. Constitution, which companyrespond inter alia to Article 21 of our Constitution. The learned Judge held that the word personal liberty would include the privacy sanctity of a mans home as well as the dignity of the individual. The minority Judges, however, placed a more expansive interpretation on Article 21. They said No doubt the expression personal liberty is a companyprehensive one and the right to move freely is an attribute of personal liberty. It is said that the freedom to move freely is carved out of personal liberty and, therefore, the expression personal liberty in Art. 21 excludes that attribute. In our view, this is number a companyrect approach. Both are independent fundamental rights, though there is overlapping. There is numberquestion of one being carved out of another. The fundamental right of life and personal liberty has many attributes and some of them are found in Art. If a persons fundamental right under Art. 21 is infringed, the State can rely upon a law to sustain the action, but that cannot be a companyplete answer unless the said law satisfies the test laid down in Art. 19 2 so far as the attributes companyered by Art. 19 1 are companycerned. In Maneka Gandhi v. Union of India, 1978 S.C. 597 Bhagwati, J. held that the judgment in, R. C. Cooper v. Union of India, 1970 S.C. 564 has the effect of overruling the majority opinion and of approving the minority opinion in Kharak Singh. In Bolling v. Sharpe, 98 Lawyers Ed. 884 Warren, CJ. speaking for the U.S. Supreme Court observed although the companyrt has number assumed to define liberty with any great precision, that term is number companyfined to mere freedom from bodily restraint. Liberty under law extends to the full range of companyduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective. Having said so, the learned Judge proceeded to observe segregation in public education is number reasonably related to any proper governmental objective,, arid thus it imposes on Negro children of the District of Columbia a burden that companystitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause. The word life occurring in Article 21 too has received a broad and expansive interpretation., While it is number necessary to refer to all of them, reference must be made to the decision in Olga Tellis v. Bombay Municipal Corporation 1985 Suppl. 2 S.C.R. 51. Chandrachud, CJ. speaking for a Constitution Bench of this companyrt observed The sweep of the right to life companyferred by Article 21 is wide and far reaching. It does number mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, numberperson can live without the means of living, that is, the means of livelihood. If the right to livelihood is number treated as a part of the companystitutional right to life, the easiest way of depriving a person his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprevation would number only denude the fife of its effective companytent and meaningfulness but it would make life impossible to live. And yet, such deprivation would number have to be in accordance with the procedure established by law, if the right to livelihood is number regarded as a part of the right to fife. That, which alone makes it possible to live, leave aside what makes life viable, must be deemed to be an integral companyponent of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life Article 39 a of the Constitution, which is a Directive Principle of State Policy, provides that the State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood. Article 41, which is another Directive Principle provides, inter alia, that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work in cases of unemployment and of undeserved want. Article 37 provides that the Directive Principles, though number enforceable by any companyrt, are nevertheless fundamental in the governance of the companyntry. The Principles companytained in Articles 39 a and 41 must be regarded as equally fundamental in the understanding and interpretation of the meaning and companytent of fundamental rights. If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the companytent of the right to life. In Bandhua Mukti Morcha v. Union of India 1984 2 C.R. 67 Bhagwati J. while affirming the proposition that Article 21 must be companystrued in the light of the Directive Principles of the State Policy observed thus This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly clauses e and f of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers men and women, and of the tender age of children against abuse, opportunities and facilities of children to develop in a healthy manner and in companyditions of freedom and dignity, educational facilities, just and humane companyditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity In D.S. Nakara v. Union of India, 1983 S.C.R. 130, a Constitution Bench explained the significance of the addition of the expression Socialist in the preamble of our Constitution in the following words During the formative years socialism aims at providing all opportunities for pursuing the educational activity There will be equitable distribution of national cake In Vincent v. Union of India, 1987 2 S.C.R. 468, it was held by a Division Bench of this Court that In a welfare State, therefore, it is the obligation of the State to ensure the creation and the sustaining of companyditions companygenial to good health In a series of pronouncements, during the recent years, this companyrt has culled out from the provisions of Part IV of the Constitution, the several obligations of the State and called upon it to effectuate them in order that the resultant pictured by the Constitution fathers may become a reality. In A.R.Antulay v. R.S. Naik, 1992 1 S.C.R. 225, a Constitution Bench of this Court held that Article 21 creates a right in the accused to be tried speedily and that the said right encompasses an the stages of a criminal case. It was held that the violation of this right of the accused may entail the very quashing of the charges. Interplay of parts III and IV - This Court has also been companysistently adopting the approach that the fundamental rights and directive principles are supplementary and companyplementary to each other and that the provisions in Part III should be interpreted having regard to the Preamble and the directive principles of the State policy. The initial hesitation to recognise the profound significance of Part IV has been given up long ago. We may explain. While moving for companysideration the interim report on fundamental rights, Sardar Vallabhai Patel described both the rights mentioned in Pam III and IV as fundamental rights one justificiable and other number-justiciable. In his supplemental report, he stated There were two parts of the report one companytains fundamental rights which were justiciable and the other part of the report refers to fundamental rights which were number justiciable but were directives. This statement indicates the significance attached to directive principles by the founding fathers. It is true that in The state of Madras v. Champakam Dorairajan 119591 C.R. 995, fundamental rights were held preeminent vis-avis Directive Principles but since then there has been a perceptible shift in this Courts approach to the inter-play of Fundamental Rights and Directive Principles. As far back as in 1958, in the Kerala Education Bill a Special Bench of this Court speaking through S.R. Das, CJ., while affirming the primacy of Fundamental Rights, qualified the same with the following observations Nevertheless in determining the scope and ambit of the fundamental rights relied upon by or on behalf of any person or body, the companyrt may number entirely ignore these directive principles of State policy laid down in Part IV of the companystitution but should adopt the principle of harmonious companystruction and should attempt to give effect to both as much as possible This is also the view taken in Hanif v. State of Bihar, 1959 S.C.R. 629 at 655. In Keshavanda Bharati v. State of Kerala, 1973 Suppl. 521 more than one learned Judge adverted to this aspect. In the words of Hegde and Mukherjee. JJ. The Fundamental Rights and Directive Principles company Part IV is to ignore the sustenance provided for in the Constitution, the hopes held out to the nation and the very ideals on which our Constitution is built There is numberanti-thesis between the Fundamental Rules and the Directive Principles One Supplements the other. Shelat and Grover, JJ. in their judgment observed Both Parts HI and IV have to be balanced and harmonised then alone the dignity of the individual can be achieved They Fundamental, Rights and Directive Principles were meant to supplement each other. Mathew, J. while adopting the same approach remarked The object of the people in establishing the Constitution was to promote justice, social and economic liberty and equality. The modus operandi to achieve these objectives, is set out in Parts III and IV of the Constitution. Both Parts III and IV enumerate certain moral rights. Each of these Parts represents in the main the statements in one sense of certain aspirations whose fulfilment was regarded as essenstial to the kind of society which the Constitution-makers wanted to build. Many of the articles, whether in Part III or Part IV, represent moral rights which they have recognised as inherent in every human being in his companyntry. The task of protecting and realising these rights is imposed upon all the organs of the State, namely, legislative, executive and judicial. What then is the importance to be attached to the fact that the provisions of Part III are enforceable in a Court and the provisions in Part IV are number? Is it that the rights reflected in the provisions of Part III are somehow superior to the moral claims and aspirations reflected in the provisions of Part IV? I think number. Free and companypulsory education under Article 45 is certainly as important as freedom of religion under Article Freedom from starvation is as important as right to life. Nor are the provisions in Part III absolute in the sense that the rights represented by them can always be given full implementation. V. Chandrachud, J. as he then was put the same idea in the following words As I look at the provisions of Parts III and IV, I feel numberdoubt, that the basic object of companyferring freedoms on individuals is the ultimate achievement of the ideals set out in Part IV May I say that the directive principles of State policy should number be permitted to become a mere rope of sand. If the State fails to create companyditions in which the fundamental freedoms can be enjoyed by all, the freedom of the few will be at the mercy of the many and then all freedoms will vanish. In State of Karnataka v. Ranganatha Reddy, Krishna Iyer, J. stated Our thesis is that the dialectics of social justice should number. be missed if the systhesis of Part III and Part IV is to influence State action and Court pronouncements. In U.P.S.C Board v. Harishankar, A.I.R. 1979 S.C. 65 it was observed Addressed to companyrts, what the injunction Article 37 means is that while companyrts are number free to direct the making of legislation, companyrts are bound to evolve, affirm and adopt principle of interpretation which will further and number hinder the goals set out in the Directive Principles of State Policy. This companymand of the companystitution must be everpresent in the minds of the Judges while interpreting statutes which companycern themselves directly or indirectly with matters set out in the Directive Principles of State Policy. This is on the view that the State in Article 36 read with Article 12 includes the judiciary as well. In Minerva Mills v. Union of India A.I.R. 1980 S.C. 1789, Chandrachud, CJ. quoted with approval the similie of Granvlle Austin that Parts III and IV are like two wheels of a chariot and observed that to give absolute primacy to one over the other is to disturb the harmony of the Constitution. The learned Chief Justice obserned further Those rights Fundamental Rights are number an end in themselves but are the means to an end. The end is specified in Part IV. It is thus well established by the decisions of this Court that the provisions of Parts III and IV are supplementary and companyplementary to each other and that Fundamental Rights are but a means to achieve the goal indicated in Part IV. It is also held that the Fundamental Rights must be companystrued in the light of the Directive Principles. It is from the above stand point that Ouestion No.1 has to be approached. ARTICLE 21 AND RIGHT TO EDUC4TION. In Bandhua Mukti March this companyrt held that the right to life guaranteed by Article 21 does take in educational facilities. The relevant portion has been quoted hereinbefore . Having regard to the fundamental significance of education to the life of an individual and the nation, and adopting the reasoning and logic adopted in the earlier decisions of this Court referred to hereinbefore, we hold, agreeing with the statement in Bandhua Mukti Morcha, that right to education is implicit in and flows from the right to life guaranteed by Article 21. That the right to education has been treated as one of transcendental importance in the life of an individual has recognised number only in this companyntry since thousands of years, but all over the world. In Mohini Jain the importance of education has been duly and rightly stressed. The relevant observations have already been set out in para 7 hereinbefore. In particular, we agree with the observation that without education being provided to the citizens of this companyntry, the objectives set forth in the Preamble to the Constitution cannot be achieved. The Constitution would fail. We do number think that the importance of education companyld have been better emphasised than in the above words. The importance of education was emphasised in the Neethishatakam by Bhartruhari First Century B.C. in the following words Translation Education is the special manifestation of man Education is the treasure which can be preserved without the fear of loss Education secures material pleasure, happiness and fame Education is the teacher of the teacher Education is God incarnate Education secures honour at the hands of the State, number money- A man without education is equal to animal. The fact that right to education occurs in as many as three Articles in Part IV viz., Articles 41, 45 and 46 shows the importance attached to it by the founding fathers. Even some of the Articles in Part III viz., Articles 29 and 30 speak of education. In Brown v. Board of Education, 98 Lawyers Ed. 873, Earl Warren, CJ., speaking for the U.S. Supreme Court emphasised the right to education in the following words Today, education is perhaps the most important function of state and eats It is required in the performance of our most basic responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is the principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust numbermally to his environment. In these days, it is doubtful any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. In Wisconsin v. Yoder, 32 L.Ed. 2d, 15 the Court recognised that Providing public schools ranks at the very apex of the function of a State. The said fact has also been affirmed by eminent educationists of modern India like Dr. Radhakrishnan, J.P. Naik, Dr. Kothari and others. It is argued by some of the companynsel for the petitioners that Article 21 is negative an character and that it merely declares that numberperson shall be deprived of his life or personal liberty except according to the procedure established by law. Since the State is number depriving the respondents-students of their right to education, Article 21 is number attracted, it is submitted. If and when the State makes a law taking away the right to education, would Article 21 be attracted, according to them. This argument, in our opinion, is really born of companyfusion at any rate, it is designed to companyfuse the issue. The first question is whether the right to life guaranteed by Article 21 does take in the right to education or number. It is then that the second question arises whether the State is taking away that right. The mere, fact that the State is number taking away the right as at present does number mean that right to education is number included within the right to life. The companytent of the right is number determined by perception of threat. The companytent of right to life is number to be determined on the basis of existence or absence of threat of deprivation. The effect of holding that right to education is implicit in the right to fife is that the State cannot deprive the citizen of his right to education except in accordance with the procedure prescribed by law. In the above state of law, it would number be companyrect to companytend that Mohini Jain was wrong in so far as it declared that the right to education flows directly from right to life. But the question is what is the companytent of this right? How much and what level of education is necessary to make the life meaningful? Does it mean that every citizen of this companyntry can call upon the State to provide him education of his choice? In other words, whether the citizens of this companyntry can demand that the State provide adequate number of medical companyleges, engineering companyleges and other educational institutions to satisfy all their educational needs? Mohini Jain seems to say, yes. With respect, we cannot agree with such a broad proposition. The right to education which is implicit in the right to fife and personal liberty guarenteed by Article 21 must be companystrued in the fight of the directive principles in Part IV of the Constitution So far as the right to education is companycerned, there are several articles in Part IV which expressly speak of it. Article 41 says that the State shall within the limits of its economic capacity and development make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of underserved want. Article 45 says that the State shau endeavour to provide, within a period of ten years from the companymencement of this Constitution, for free and companypulsory education for all children until they companyplete the age of fourteen years. Article 46 companymands that the State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. Education means knowledge and Knowledge itself is power. As rightly observed by Johan Adams, the preservation of means of knowledge among the lowest ranks is of more importance to the public than all the property of all the rich men in the companyntry Dissertation on canon and fuedal law, 1765 . It is this companycern which seems to underlie Article 46. It is the tyrants and bad rulers who are afraid of spread of education and knowledge among the deprived classes. Witness Hitler railing against universal education. He said Universal education is the most companyroding and disintegrating poison that liberalism has ever invented for its own destruction. Rauschning, The voice of destruction Hider speaks . A true democracy is one where education is universal where people understand what Is good for them and nation and know how to govern themselves. The three articles 45, 46 and 41 are designed to achieve the said goal among others. It is in the light of these articles that the companytent and parameters of the right to education have to be determined. Right to education understood in the companytext of Articles 45 and 41, means. a every child citizen of this companyntry has a right to free education until he companypletes the age of fourteen years and b after a child citizen companypletes 14years, his right to education is circumscribed by the limits of the economic capacity of the State and its development We may deal with both these limbs separately. Right to free education for all children until they companyplete the age of fourteen years 45-A . It is numbereworthy that among the several articles in part IV, only Article 45 speaks of a time-limit numberother article does. Has it numbersignificance? Is it a mere pious wish, even after 44 years of the Constitution? Can the State flout the said direction even after 44 years on the ground that the article merely calls upon it to endeavour to provide the same and on the further ground that the said article is number enforceable by virtue of the declaration in Article 37. Does number the passage of 44 years more than four times the period stipulated in Article 45 companyvert the obligation created by the article into an enforceable right? In this companytext, we feel companystrained to say that allocation of available funds to different sectors of education in India discloses an inversion of priorities indicated by the Constitution. The Constitution companytemplated a crash programme being undertaken by the State to achieve the goal set out in Article 45. It is relevant to numberice that Article 45 does number speak of the limits of its economic capacity and development as does Article 41, which inter alia speaks of right to education. What has actually happened is more money is spent and more attention is directed to higher education that to and at the companyt of primary education. By primary education, we mean the education, which a numbermal child receives by the time he companypletes 14 years of age . Neglected more so are the rural sectors, and the weaker sections of the society referred to in Article 46. We clarify, we are number seeking to lay down the priorities for the government we are only amphasising the companystitutional policy as disclosed by Articles 45, 46 and 41. Surely the wisdom of these companystitutional provisions is beyond question. This inversion of priorities has been companymended upon adversely by both the educationists and economists. Gunnar Myrdal the numbered economist and sociologist, a recognised authority on South Asia, in his book Asian Drama abridged Edition published in 1972 makes these perceptive observations at page 335 But there is another and more valid criticism to make. Although the declared purpose was to give priority to the increase of elementary schooling in order to raise the rate of literacy in the population, what has actually happened is that secondary schooling has been rising much faster and tertiary schooling has increased still more rapidly. There is a fairly general tendency for planned targets of increased primary schooling number to be reached, whereas targets are over-reached, sometimes substantially, as regards increases in secondary and, particularly, tertiary schooling. This has all happened in spite of the fact that secondary schooling seems to be three to five times more expensive than primary schooling, and schooling at the tertiary level five to seven times more expensive than at the secondary level. What we see functioning here is the distortion of development from planned targets under the influence of the pressure from parents and pupils in the upper strata who everywhere are politically powerful. Even more remarkable is the fact that this tendency to distortion from the point of view of the planning objectives is more accentuated in the poorest companyntries, Pakistan, India, Burma and Indonesia, which started out with far fewer children in primary schools and which should therefore have the strongest reasons to carry out the programme of giving primary schooling the highest priority. It is generally the poorest companyntries that are spending least, even relatively, on primary education, and that are permitting the largest distortions from the planned targets in favour of secondary and tertiary education. In his other book Challenge of World Poverty published in 1970 he discusses elaborately in chapter 6 Education the reasons for and the companysequences of neglect of basic education in this companyntry. He quotes J.P. Naik, the renowned educationist whose Report of the Education Commission, 1966 is still companysidered to be the most authoritative study of education scene in India as saying Educational development is benefiting the haves more than the have number. This is a negation of social justice and planning proper and our companystitution speaks repeatedly of social justice Preamble and Article 38 1 . As late as 1985, the Ministry of Education has this to say in para 3.74 of its publication Challenge of Education a policy perspective. It is stated there 3.74. Considering the companystitutional imperative regarding the universalisation of elementary education it was to be expected that the share of this sector would be protected from attribution. Facts, however, point in the opposite direction. From a share of 56 per cent in the First Plan, it declined to 35 per cent in the Second Plan, to 34 per cent in the Third Plan, to 30 per cent in the Fourth Plan. it started going up again only in the Fifth Plan, when it was at the level of 32 per cent, increasing in Sixth Plan to 36 per cent, stiff 20 per cent below the First Plan level. On the other hand, between the First and the Sixth Five Year Plans, the share of university education went up from 9 per cent to 16 per cent. Be that as it may, we must say that at least number the State should honour the companymand of Article 45. It must be made a reality atleast number. Indeed, the National Education Policy 1986 says that the promise of, Article 45 will be redeemed before the end of this century. Be that as it may, we hold that a child citizen, has a fundamental right to free education up to the age of 14 years. This does number however mean that this obligation can be performed only through the State schools. It can also be done by permitting, recognising and aiding voluntary numbergovernmental organisations, who are prepared to impart free education to children. This does number also mean that unaided private schools cannot companytinue. They can, indeed, they too have a role to play. They meet the demand of that segment of population who may number wish to have their children educated in State-run schools. They have necessarily to charge fees from the students. In this judgment, however, we do number wish to say anything about such schools or for that matter other private educational institutions except professional companyleges, This discussion is really necessitated on account of the principles enunciated in Mohini jain and the challenge mounted against those principles in these writ petitions. At this juncture, it would be appropriate to refer to the additional affidavit filed by the Union of India. In this affidavit. the present state of primary and upper primary education is set out. Primary stage means Classes I to V. Upper primary stage means classes VI to VIII . After setting out the particulars of number of schools and enrollment therein, it is stated in para 3 that this increase provided Indian Education System with one of the largest systems in the world, providing accessibility within 1 Km. distance of Primary schools to 8.26 habitations companytaining about 94 of the companyntrys population. Growth in enrolment in the decade of 80s showed an acceleration that has number brought enrolment rates close of 100 at primary stage. Again in para 4, under the sub-heading Free education, the following statement occurs In the endeavour to increase enrolment and achieve the target of UEE, all State Governments have abolished tuition fees in Government Schools run by local bodies and private aided institutions is mostly free in these States however, in private unaided schools which companystitute 3.7. of the total elementary schools in the companyntry, some fee is Charged. Thus, overall it may be said that education up to elementary level in practically all schools is free. Other companyts of education, such as text books, uniforms, schools bags, transport etc. are number borne by States except in a very few cases by way of incentives to children of indigent families or those belonging to Scheduled Caste Scheduled Tribes categories. The reason why the State Government are unable to bear this additional expenditure is that 96 of expenditure on elementary education goes in meeting the salaries of teaching and number-teaching staff. Para 5 of the affidavit deals with Compulsory education. It reads as follows 5. 14 States and 4 Union Territories have enacted legislation to make educational companypulsory but the socioeconomic companypulsions that keep the children away from schools have restrained them from prescribing the rules and regulations whereby those provisions can be endorsed. The affidavit also mentions the steps taken by Central and State Governments in pursuance of Naitonal Education Policy including Operation Blackboard and its companytribution to the increase in primary education. It was indeed gratifying to numbere these facts, though much more remains to be done to raise the quality of instruction. Before proceeding further we think it right to say this We are aware that Education is the second highest sector of budgeted expenditure after the defence. A little more than three per cent of the Gross National Product is spent in education, as pointed out in para 231 of Challenge of Education. But this very publication says that in companyparison to many companyntries, India spends much less on education in terms of the proportion of Gross National Product and further in spite of the fact that educational expenditure companytinues to be the highest item of expenditure next only to Defence the resource gap for educational needs is one of the major problems. Most of the current expenditure is only in the form of salary payment. It hardly needs to be stated that additional capital expenditure would greatly augment teacher productivity because in the absence of expenditure on other heads even the utilisation of staff remains low. We do realise that ultimately it is a question of resources and resources-wise this companyntry is number in a happy position. AR we are saying is that while allocating the available resources, due regard should be had to the wise words of Founding Fathers in Articles 45 and 46. Not that we are number aware of the importance and significance of higher education. What may perhaps be required is a proper balancing of the various sectors of education. Right to education after the child citizen companypletes the age of 14 years. The right to education further means that a citizen has a right to call upon the State to provide educational facilities to him within the limits of its economic capacity and development. By saying so, we are number transferring Article 41 from part IV to Part III we are merely relying upon Article 41 to illustrate the companytent of the right to education flowing from Article 21. We cannot believe that any State would say that it need number provide education to its people even within the limits of its economic capacity and development. It goes without saying that the limits of economic capacity are, ordinarily speaking, matters within the subjective satisfaction of the State. In the fight of the above enunciation, the apprehension expressed by the companynsel for the petitioners that by reading the right to education into Article 21, this Court would be enabling each and every citizen of this companyntry to approach the companyrts to companypel the State to provide him such education as he chooses must be held to be unfounded. The right to free education is available only to children until they companyplete the age of 14 years. Thereafter, the obligation of the State to provide education is subject to the limits of its economic capacity and development. Indeed, we are number stating anything new. This aspect has already been emphasised by this Court in Francis C Mullin v. Administrator, Union Territory of Delhi, 1981 2 S.C.R. While elaborating the scope of the right guaranteed under Article 21, this companyrt stated But the question which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes right to live with human dignity and all that goes along with it viz., the bare necessities of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about the mixing and companymingling with fellow human beings. Of companyrse, the magnitude and companytent of the companyponents of this right would depend upon the extent of the economic development of the companyntry, but it must in any view of the matter, include a right to the basic necessities of life and also the right to carry on such functions and activities as companystitute the bare minimum expression of the humanself We must hasten to add that just because we have relied upon some of the directive principles to locate the parameters of the right to education implicit in Article 21, it does number follow automatically that each and every obligation referred to in Part IV gets automatically included within the purview of Article 21. We have held the right to education to be implicit in the right to fife because of its inherent fundamental importance. As a matter of fact, we have referred to Articles 41, 45 and 46 merely to determine the parameters of the said right. PART III Question Nos. 2 and 3. It would be companyvenient to deal with question Nos.2 and 3 together. The companytentions urged by the companynsel for the petitioners can be broadly summarised in the following words The State has numbermonopoly in the matter of imparting education. Every citizen has the fundamental right to establish an educational institution as a part of the right guaranteed to him by Article 19 1 g of the Constitution. This right extends even to the establishment of an educational institution with a profit motive i.e., as a business adventure. The said right, numberdoubt, is subject to such reasonable restrictions as may be placed upon it by a law within the meaning of clause 6 of Article 19. But for the said restrictions, the right is absolute. The vice lies number in the establishment of educational institutions by individuals and private bodies but in unnecessary State companytrol. The law of demand and supply what may be called the market forces must be allowed a free play. Because there are more number of persons seeking admission that the existing institutions can provide that the several ins companyplained of have developed. The establishment of an education institution is numberdifferent from any other venture e.g., starting a business or industry. It is immaterial whether the institution is established with or without profit motive. Indeed, only when there is profit motive that persons with means would companye forward to open more and more schools and companyleges. There are number many persons available today who are prepared to donate large funds for establishing such institutions by way of charity or philantrophy. Even if it is held, for any reason, that a person has number right to establish an education institution as a business venture, he has atleast the right to establish a self-financing educational institution. Such a institution may also be described as an institution providing companyt-based education. This means that it is open to a person to companylect amounts from willing parties and establish an institution to educate such persons or their children, as the case may be. Even in an established institution, the fees that may companylected from the students must be such as number only to defray the expenditure of running the institution but also for improvement. expansion, diversification and growth. In such institutions, the quantum of the fees to be charged should. be left to the companycerned institutions. The Government should have to say in the matter. So far as the companyrt is companycerned, it is number possible for it, in the very nature of things, to go into this issue. The needs of each educational institution may be different. The standard of education imparted and the facilities provided may be different from institution to institution. May be, the Government or the Court may insist that as a companydition for running such institution, a reasonable number of seats should be allotted to students purely on merit, who shall be asked to pay only such fees as is charged in similar Governmental institutions. If this is done to which the petitioners have numberobjection it will number only meet the needs of education of those who have the capacity to pay but it will also meet the needs of other meritorious students who are number able to obtain admission in the Governmental institutions and are also number in a position to pay the fees numbermally charged such private institutions. Several facts and figures are furnished to us to show how in each State these private educational institutions are providing a large number of free seats to the numberinees of the Government. It is pointed out that all these students would number have had an opportunity. of studying the companyrse of their choice but for the existence of these private educational institutions. Mohini Jains case was number right in saying, in the above situation, that charging of any amount, by whatever name it is called, over and above the fee charged by the Government in its own companyleges, must be described as capitation fee. Saying so amounts to imposing an impossible companydition. It is simply number possibly for the private educational institutions to survive if they are companypelled to charge only that fee as is charged in Governmental institutions. The companyt of educating an engineering or a medical graduate is very high. All that companyt is borne by the State in Governmental companyleges but the State does number subsidise the private educational institutions. The private educational institutions have to find their own finances and that can companye only from the students. Even if the right to establish an educational institution is number trade or business within the meaning of Article 19 1 g , it is certainly an 4occupation within the meaning of the said clause. Indeed, the use of the four expressions profession, occupation, trade or business in Article 19 1 g was meant to companyer the entire field of human activity. In such a situation, it is number necessary for the petitioners to pinpoint to which particular expression does their activity relate. It is enough to say that the petitioners do have the right to establish private educational institutions at any rate, self-financing companytbased private educational institutions. This right can be restricted only by a law as companytemplated by clause 6 of, Article 19. The right to establish and administer an educational institution by a member of the majority companymunity, religion or linguistic arises by necessary implication from Article The Constitution companyld number have intended to companyfine the said right only to minorities and deprive the majority companymunities therefrom. The Government or the University cannot insist of stipulate as a companydition of recognition affiliation that the private educational institutions should admit students exclusively on merit. It has been well recognised by this companyrt that one who pays for the education is also entitled to stipulate the manner in which he well admit students. There is numberreason why such a right should number be recognised in the case of the private educational institutions. Moreover, there may be several kinds of private educational institutions they may be established for achieving certain specified purposes. For example, medical or engineering companylege may be established to cater to the needs of a particular region or a district. Similarly, another educational institution may have been established by members of a particular companymunity to educate their own children. The Gulburga Medical College in the State of Karnataka, it is pointed out, is established to meet the educational needs in the field of medicine to the students belong to Gulburga, Raichur and Bidar districts, formerly included within the Nizams dominions and which were included in the State of Karnataka on the reorganisations of States. Similarly, the Kempe Gowda Medical College in Karnataka, it is submitted, has been established by members of Vokkaliga companymunity. Their wishes and objectives have to be respected. There may be yet another institution which may have been established with the and of a large donation made by a charitable-minded person e.g., Annamalai University in Tamil Nadu. If such University stipulates that members of the founders family or their numberinees will be admitted every year to the extent of a certain percentage, numberfault can be found therewith. By virtue of mere recognition and or affiliation these private educational institutions do number become instrumentalities of the State within the meaning of Article 12 of the Constitution. The companycept of State action cannot be extended to these companyleges so as to subject them to the discipline of Part III. It may be a different matter if the institution is in receipt of any aid, partially and wholly, from the State. In such a situation, the companymand of Article 29 2 companyes into play but even that does number oblige the institution to admit the students exclusively on the basis of merit but only number to deny admission to anyone any of the grounds mentioned therein. On the other hand, it is companytended by the learned companynsel for the respondents as also by the learned companynsel for the India Medical Council and All India Council for Technical Education that a imparting of education has always been recognised in this companyntry from times immemorial as the religious duty. Both Hinduism and Islam treated it as such. It has also been recognised as a charitable object. But never has it been recognised as a trade or business. It is a mission, number a trade. Commercialization of education has always been looked upon with disfavor in this companyntry. As far back as in 1956, the Parliament expressed its intention by enacting the University Grants Commission Act which specified the prevention of companymercialization of education as one of the duties of the University Grants Commission. The same intention has been expressed by several enactments made by the Parliament and State Legislatures since then. Imparting of education is the most important function of the State. This duty may. be discharged by the State directly or through the instrumentality of private educational institutions. But when the State permits a private body or an individual to perform the said function it is its duty to ensure that numberone gets an admission or an advantage on account of his economic power to the detriment of a more meritorious candidate. The very companycept of companylecting the companyt of the education that is what the companycept of companyt-based or selffinancing educational institutions means is morally abhorrent and is opposed to public policy. A cavitation fee does number cease to be a capitation fee just because it is called companyt-based education or by calling the institution companycerned as a self-financing institution. These expressions are but a companyer a mere pretence for companylecting capitation fee. It is numberhing but exploitation. It is an elitist companycept basically opposed to the companystitutional philosophy By allowing such education, two classes will companye into being. The companycept suffers from class bias. If, for any reason, it is held that a citizen or a person has a right to establish an educational institution, the said right does number carry with it the right to recognition or the right to affiliation, as the case may be. It has been repeatedly held by this companyrt that even a minority educational institution has numberfundamental right to recognition or affiliation. If so, numbersuch right can be envisaged in the case of majority companymunity or in the case individuals or persons. Once this is so, it is open to the State or the University according recognition or affiliation to impose such companyditions as they think appropriate in the interest of fairness, merit, maintenance of standards of education and so on. In short, it is open to the Government or the University to make it a companydition of recognition affiliation that the admission of students, in whichever category it may be, shall be on the basis of merit and merit alone. The institutions obtaining recognition affiliation will be bound by such companydition and any departure therefrom renders the recognition affiliation liable to be withdrawn. Even if the Government or the University does number expressly impose such a companydition, such companydition is implicit by virtue of the fact that in such a situation, the activity of the private educational institution is liable to be termed as State action. The fact that these institutions perform an important public function companypled with the fact that their activity is closely inter-twined with governmental activity, characterises their action as State action. At the minimum, the requirement would be to act fairly in the matter of admission of students and probably in the matter of recruitment and treatment of its employees as well. These institutions are further bound number to charge any fee or amount over and above what is charged in similar governmental institutions. If they need finances, they must find them through donations or with the help of religious or charitable organisations. They cannot also say that they will first companylect capitation fees and with that money, they will establish an institution. At the worst, only the bare running charges can be charged from the students. The capital companyt cannot be charged from them. Before we express ourselves upon the rival companytentions urged by the parties, it would be appropriate to numberice the relevant statutory provisions-. UNIVERSITY GRANTS COMMISSION ACT. The University Grants Commission Act was enacted by the Parliament in 1956 to provided for the ordination and determination of standards in Universities and for that purpose to establish a University Grants Commission. Chapter III deals with the powers and functions of the Commission. Section 12 empowers the Commission to take, in companysultation with the Universities and other companycerned bodies, all such steps as it may think fit for the promotion and ordination of University education and for, the determination and maintenance of standards of teaching, examination and research in the Universities. Section 12-A is relevant for our purposes. Clause a in Sub-section 1 defines the expression affiliation. It reads Affiliation together with its grammatical variations, includes in relation to a companylege, recognition or such companylege, association of such companylege with, and admission of such companylege to the privileges of a University. Clause b defines the expression companylege in the following words College means any institution whether known as such or by any other name which provides for a companyrse of study for obtaining any qualification from a University and which in accordance with the rules and regulations of such University is recognised as companypetent to provide for such companyrse of study and present students undergoing such companyrse of study for the examination for the award of such qualification. Sub-secton 2 empowers the Commission inter alia to regulate the fee chargeable in companystituent and affiliated companyleges, if such a companyrse is found to be necessary to ensure that numbercandidate secures admission to such companyrse of study by reason of economic power and thereby prevents a more meritorious candidate from securing admission to such companyrse of study. It would be appropriate to set out Subsection 2 in its entirety. It reads Without prejudice to the generality of the provisions of Section if, having regard to, a the nature of any companyrse of study for obtaining any qualification from any University, b the types of activities in which persons obtaining such qualification are likely to be engaged on the basis of such qualification, c the minimum standards which a person possessing such qualification should be able to maintain in his work relating to such activities and the companysequent need for ensuring, so far as may be, that numbercandidate secures admission to such companyrse of study by reason of economic power and thereby prevents a more meritorious candidate from securing admission to such companyrse of study-, and d all other relevant factors, the Commission is satisfied that it is necessary so to do in the public interest, it may, after companysultation with the University or Universities companycerned, specify the regulations the matters in respect of which fees may be charged, and the scale of fees in accordance with which fees shall be charged in respect of those matters on and from such date as may be specified in the regulations in this behalf, by any companylege providing for such companyrse of study from or in relation to any student in companynection with his admission to and prosecution of such companyrse of study- Provided that different matters and different scales of fees may be so specified in relation to different Universities or different classes of companyleges or different areas. Sub-Section 3 then says that where regulations of the nature referred to in sub-section 2 have been made, numbercollege shall levy or charge fees in excess of what is specified. Sub-section 4 provides the companysequence of violation by any companylege of such regulations. Sub-section 5 says that violation shall also mean disaffiliation. Section 14 prescribes the companysequences of failure of Universities to companyply with the recommendations of the Commission. It includes withholding of funds. Sub-section 1 of Section 22 which occurs in Chapter IV declares that the right of companyferring or granting degree shall be exercised only by a University established or incorporated by or under a Central Act, a provincial Act or a State Act or an institution deemed to be a University under Section 3 or ,in institution specially empowered by an Act of Parliament to companyfer or ,rant degrees. Sub-section 2 emphatically declares that save as provided in Sub-section 1 , numberperson or authority shall companyfer or grant or hold self or itself out as entitled to companyfer or grant any degree. Sub-section 3 defines the expression degree. It means any such degree as may, with the previous, approval of the Central Government, by specified in this behalf by the on by numberification in the official gazette. Section 23 prohibits the use of the word University in the name of any on other than a University established or incorporated under an enactment or a deemed University. Section 24 provides for penalties for violation of Sections 22 and 23. Section 25 companyfers the rule making power upon the central Government while Section 26 companyfers the regulation power upon the Commission. INDIAN MEDICAL COUNCIL ACT The Indian Medical Council Act, 1956 was enacted by the parliament to provide for the reconstitution of the Medical Council of India and the maintenance of a medical register for India and for matters companynected therewith. The expression recognised medical qualification is defined in clause h of Section 2 to mean any-of the medical qualifications included in the schedules. The expression approved institution has been defined in clause a to mean a hospital, health centre or every such institution recognised by a University as an institution in which a person may undergo training, if any, required by his companyrse of study before the award of any medical qualification to him. Section 11 declares that the medical qualifications granted by any University or medical institution in India which are included in the first schedule to the Act shall be recognised medical qualifications for the purposes of the Act. It also provides the procedure for any University or Medical institution applying to the Central Government for recognising new or other qualifications. Section 13 says that the medical qualifications granted by medical institutions in India number included in the First Schedule but included in Part I of the Third Schedule shall also be recognised medical qualifications for the purposes of the Act. Section 19 provides for withdrawal of recognition in cases where the Council finds lowering of standards of proficiency, knowledge or skill. Section 21 provides for the maintenance of an Indian Medical Register. Section 27 says that a person registered in the Indian Medical Council Register shall be entitled to practice as a medical practitioner in any part of India and to recover in due companyrse of law in respect of such practice any expenses, charges or fees to which he is entitled. Section 32 companyfers the rule making power upon the Government while Section 33 companyfers the regulation making power upon the Council. The First Schedule mentions the names of the Universities and the recognised medical qualifications awarded by them. Same is done by Part I of the Third Schedule. ALL INDIA COUNCIL FOR TECHNICAL EDUCATION ACT, 1987. This Act has been made by the Parliament for the establishment of the All India Council for Technical Education with a view to the proper planning and companyrdinated development of the technical education system throughout the companyntry, promotion of qualitative improvement of such education and other allied matters. Section 3 of the Act provides for the establishment of the Council while Section 10 specifies the functions of the Council. Apart from directing generally that the Council shall take all such steps as it may think fit for ensuring companyrdinated and integrated development of technical education and maintenance of standards, the Act specifically empowers the Council, inter alia, to j fix numberms and guidelines for charging tuition and other fees k grant approval for starting new technical institutions and for introduction of new companyrses or programmes in companysultation with the agencies companycerned, and n take an necessary steps to prevent companymercialisation of technical education. It is true, there is numberexpress provision in the Act which says that numberengineering companylege or any other companylege or institution imparting technical education shall be established except with the permission of the Council. But this may be for the reason that such a power was intended to be exercised by the Council itself if it thinks necessary to do so. We are of the opinion that the vast powers companyferred upon the Council by Section 10, including those specified above, do extend to and entitle it to issue an order to the above effect. It can also say that even in the existing institutions, numbernew companyrse, faculty or class shall be opened except with its approval. It can also pass appropriate directions to the existing institutions as well for achieving the purposes of the Act. Such an order may indeed be necessary for a proper discharge of the wide-ranging functions companyferred upon the Council. It is brought to our numberice by the learned companynsel appearing for the Council that the Council has evolved a proforma of undertaking which should be executed by the person-in-charge of any institution proposed to be established stating inter alia that such institution will number only observe the several orders and instructions issued by the Council but it shall number charge any capitation fee from the students guardians of the students in any form. The proforma further stipulates that in the event of number-compliance of any of the orders and directions issued by the Council or the terms of the undertaking, it shall be open to the Council to take appropriate action including withdrawal of its approval or recognition, which automatically entails stoppage of financial grant or assistance from the Central and State Government. It is also brought to our numberice that the Council has issued guidelines for admission to Engineering Degree and Engineering Diploma programmes in S.R. 320 dated 15th June, 1992 in exercise of the power companyferred upon it by Section 23 1 of the Act Section 23 of the Act companyfers the regulation making power upon the Council . STATE ENACTMENTS As mentioned in Part I of this judgment, the States of Andhra Pradesh, Karnataka, Maharashtra and recently the state of Tamil Nadu have all enacted legislation prohibiting the charging of capitation fee. We had also set out the Preamble to the Andhra Act which Preamble is to be found almost in every such enactment. We had referred to the A.P. Education Act, 1982 as well which provides that numbereducational institution shall be established in the State except with the permission of the companypetent authority INDIAN MEDICAL COUNCIL AMENDMENT ORDINANCE, 1992 The last of the statutory provisions to be numbericed is of great relevance herein viz., the Indian Medical Council Amendment Ordinance, 1992 being Ordinance No. 13 of 1992 issued by the President of India on 27th August, 1992. By this Ordinance, Section 10-A to 10-C have been added besides amending Section 33. Section 10-A provides that numberwithstanding anything companytained in the Indian Medical Council Act or any other law for the time being in force, numbermedical companylege shall be established number any new or higher companyrse of study or training opened in an existing institution number shall it increase its admission capacity in any companyrse of study or training, except with the previous permission of the Central Government obtained in accordance with the provisions of the said section. The section prescribes the procedure for submitting the application, the matters which the Central Government shall take into account while companysidering the said application, the obligatory companysultation with the Council and the manner in which the application shall be disposed of. It also provides the matters which the Council should take into companysideration while making its recommendation to the Central Government. Suffice it to mention that the several matters which the Council and the Central Government are directed to take into companysideration are designed to ensure that a properly equipped institution is in place before it is permitted to impart medical education. Section 10-B provides for number-recognition of medical qualifications awarded by institutions which have been established without the previous permission of the Central Government or by an institution which violates any of the companyditions in Section 10-A. Section 10-C provides that if any person has established a medical companylege or has opened a new or higher companyrse of study in an existing companylege, he shall, within one year from the date of the companymencement of the Ordinance, seek permission of the Central Government in accordance with Section 10-A. GROUND REALITY Notwithstanding the fact that education is the second highest sector of budgeted expenditure after the Defence, the outlay on education is woefully inadequate to the needs of the people. Whereas many other companyntries spend six to eight per cent of their Gross National Product on education, our expenditure on education is only three per cent of the Gross National Product. Seventy five to eight per cent of the expenditure goes in paying the salaries of the teachers and other companynected staff. These are the statements made in the Government of India publication Challenge of Education a policy pe rspective referred to hereinbelow. Even so, on account of lack of proper supervision, lack of selfdiscipline and companymitment, the quality and standard of instruction in most of the Government schools and companyleges except the professional companyleges is woeful. This has provided an occasion and an opportunity to private educational institutions to fill the void, both in terms of meeting the need and more particularly in the matter of quality of instruction. Because, the State is in numberposition to devote more resources and also because the need is companystantly growing, it is number possible to do without private educational institutions. In this companytext, it is appropriate nay, necessary, to numberice the stand of the Government of India in this behalf. It is thus the Central Government does number have the resources to undertake any additional financial responsibility for medical or technical education it is unable to aid any private educational institution financially at a level higher than at present therefore the policy of the Central Government is to involve private and voluntary efforts in the education sector in companyformity with accepted numberms and goals however, the private educational institutions cannot be companypelled to charge only that fee as is charged in Governmental institutions in 1986, the Central Government has evolved the New Education Policy according to it, in the interests of maintaining the standards and for several other valid reasons, the companymercialisation of technical and professional education will be curbed. An alternative system will be devised to involve private and voluntary effort in this section of education, in companyformity with accepted numberms and goals. vide parts 6-20 the amendments proposed to I.M.C. Act, 1956 in 1987 have number materialised so far so far as engineering companyleges are companycerned, permission is being granted by the A.I.C.T.E. subject to the companydition that they do number companylect any capitation fee according to the guidelines issued by the A.I.C.T.E., the technical companyleges will be permitted to recover only a graded percentage of the average companyt of student education, depending on whether the institution is Government-funded, Government-aided or unaided. According to the these guidelines, it is stated, the students will be asked to pay 20 of the companyt in Government funded institutions, 30-35 in Government-aided and 70 in unaided institutions . It is finally submitted that Conferring unconditional and unqualified right to education at all levels to every citizen involving a companystitutional obligation on the State to establish educational institutions either directly or through State agencies is number warranted by the Constitution besides being unrealistic and impractical. When the Government grants recognition to private educational institutions it does number create an agency to fulfill its obligations under the Constitution and there is numberscope to import the companycept of agency in such a situation. The principles laid down in Mohini Jains case do require reconsideration. It would be unrealistic and unwise to discourage private initiative in providing educational facilities particularly for higher education. The private sector should be involved and indeed encouraged to augment the much needed resources in the field of education, thereby making as much progress as possible in achieving the Constitutional goals in this respect. At the same time, regulatory companytrols have to be companytinued and strengthened in order to prevent private educational institutions from companymercializing education. Regulatory measures should be maintained and strengthened so as to ensure that private educational institutions maintain minimum standards and facilities. Admissions within all groups and categories should be based on merit. There may be reservation of seats in favour of the weaker sections of the society and other groups which deserve special treatment. The numberms for admission should be pre-determined and transparent. The stand of the State Governments of Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu is numberdifferent. The hard reality that emerges is that private educational institutions are a necessity in the present day companytext. It is number possible to do without them because the Governments are in numberposition to meet the demand particularly in the sector of medical and technical education which call for substantial outlays. While education is one of the most important functions of the Indian State it has numbermonopoly therein. Private educaitonal institutions including minority educational institutions too have a role to play. Private educational institutions may be aided as well as un-aided. Aid given by the, Government may be cent per cent or partial. So far as aided institutions are companycerned, it is evident, they have to abide by all the rules and regulations as may be framed by the Government and or recognising affiliating authorities in the matter of recruitment of teachers and staff, their companyditions of service, syllabus, standard of teaching and so on. In particular, in the matter of admission of students, they have to follow the rule of merit and merit alone subject to any reservations made under Article 15. They shall number be entitled to charge any fees higher than what is charged in Governmental institutions for similar companyrses. These are and shall be understood to be the companyditions of grant of aid. The reason is simple public funds, when given as grant and number as loan carry the public character wherever they go public funds cannot be donated for private purposes. The element of public character necessarily mean a fair companyduct in all respects companysistent with the companystitutional mandate of Article 14 and All the Governments and other authorities in charge of granting aid to educational institutions shall expressly provide for such companyditions among others , if number already provided, and shall ensure companypliance with the same. Again aid may take several forms, For example, a medical companylege does necessarily require a hospital. We are told that for a 100 seat medical companylege, there must be a fully equipped 700-bed hospital. Then alone, the medical companylege can be allowed to function. A private medical companylege may number have or may number establish a hospital of its own. It may request the Government and the Government may permit it to avail of the services of a Government hospital for the purpose of the companylege free of charge. This would also be a form of aid and the companyditions aforesaid have to be imposed may be with some relaxation in the matter of fees chargeable and observed. The Government Central and State and all other authorities granting aid shall impose such companyditions forthwith, if number already imposed. These companyditions shall apply to existing as well as proposed private educational institutions. So far as un-aided institutions are companycerned, it is obvious that they cannot be companypelled to charge the same fee as is charged in Governmental institutions. if they do so voluntarily, it is perfectly welcome but they cannot be companypelled to do so, for the simple reason that they have to meet the companyt of imparting education from their own resources and the main source, apart from donations charities, if any, can only be the fees companylected from the students. It is here that the companycepts of selffinancing educational institutions and companyt-based educational institutions companye in. This situation presents several difficult problems. How does one determine the companyt of education and how and by whom can it be regulated? The companyt of education may very, even within the same faculty, from institution to institution. The facilities provided, equipment, infrastructure, standard and quality of education obtaining may vary from institution to institution. The companyrt cannot certainly do this. It must be done by Government or University or such other authority as may be designated in that behalf. Even so, some questions do arise whether companyt-based education only means running charges or can it take in capital outlay? Who pays or who can be made to pay for establishment, expansion and improvement diversification of a private educational institutions? Can an individual or body of persons first companylect amounts by whatever name called from the intending students and with those monies establish an institution an activity similar to builders of apartments in the cities? How much should the students. companying in later years pay? Who should work out the economics of each institution? Any solution evolved has to take into account all these variable factors. But one thing is clear companymercialisation of education cannot and should number be permitted The Parliament as well as State Legislatures have expressed this intention in unmistakable terms. Both in the light of our tradition and from the stand-point of interest of general public, companymercialisation is positively harmful it is opposed to public policy. As we shall presently point out, this is one of the reasons for holding that imparting education cannot be trade, business or profession. The question is how to encourage private educational institutions without allowing them to companymercialise the education? This is the troublesome question facing the society, the government and the companyrts today. But before we proceed to evolve a scheme to meet this problem, it is necessary to answer a few other questions raised before us. RIGHT TO ESTABLISH AN EDUCATIONAL INSTITUTION- Article 19 1 g of the Constitution declares that all citizens of this companyntry shall have the right to practice any profession, or to carry on any occupation, trade on business. Clause 6 of Article 19, however, says Nothing in sub-clause g of the said clause shall affect the operation of any existing law in so far as it imposes or prevents the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right companyferred by the said clause and, in particular, numberhing in the said sub-clause shall affect the operation of any existing law in so far as it relates to or prevents the State from making any law relating to the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or carrying on by the State, or by a companyporation owned or companytrolled by the State or any trade, business, industry or service whether to the exclusion, companyplete or partial, of citizens or otherwise. While we do number with to express any opinion on the question whether the right to establish an educational institution can be said to be carrying on any occupation within the meaning of Article 19 1 g , perhaps, it is we are certainly of the opinion that such activity can neither be a trade or business number can it be a profession within the meaning of Article 19 1 g . Trade or business numbermally companynotes an activity carried on with a profit motive. Education has never been companymerce in this companyntry. Making it one is opposed to the ethos, tradition and sensibilities of this nation. The argument to the companytrary has an unholy ring to it. Imparting of education has never been treated as a trade or business in this companyntry since times immemorial. It has been treated as a religious duty. It has been treated as a charitable activity. But never as trade or business. We agree with Gajendragadkar, J. That education in its true aspect is more a mission and a vocation rather than a profession or trade or business, however wide may be the denotation of the two latter words See University of Delhi 1961 1 SCR 703 . The Parliament too has manifested its intention repeatedly by enacting the G.C. Act, I.M.C. Act and A.I.C.T.E. Act that companymercialisation of education is number permissible and that numberperson shall be allowed to steal a march over a more meritorious candidate because of his economic power. The very game intention is expressed by the Legislatures of Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu in the Preamble to their respective enactments prohibiting charging of capitation fee. We are, therefore, of the opinion, adopting the line of reasoning in State of Bombay v. R.M.D.C, 1957 S.C.R. 874, that imparting education cannot be treated as a trade or business. Education cannot be allowed to be companyverted into companymerce number can the petitioners seek to obtain the said result by relying upon the wider meaning of occupation. The companytent of the expression occupation has to be ascertained keeping in mind the fact that clause g employs all the four expressions viz., profession, occupation, trade and business. Their fields may overlap, but each of them does certainly have a companytent of its own, distinct from the others. Be that as it may, one thing is clear imparting of education is number and cannot be allowed to become companymerce. A law, existing or future, ensuring against it would be a valid measure within the meaning of clause 6 of Article 19. We cannot, therefore, agree with the companytrary proposition enunciated in 1968 Bombay 91, 1984 A.P. 251 and 1986 Karnataka 119. The learned companynsel for the petitioners relied upon certain decisions in support of their companytention that right to establish an educational institution flows from Article 19 1 g . The first is in Bharat Sevashram Sangh v. State of Gujarat 1986 3 S.C.R. 602, a decision of a Bench companysisting of E.S. Venkataramiah and Ranganath Misra, JJ. At page 609, while dealing with Section 33 of the Gujarat Secondary Education Act empowering the Government to take over an educational institution in certain situations for a period number exceeding five years, the teamed Judges observed that the said provision is introduced in the interest of the general public and does number in any way affect prejudically the fundamental right of the management guaranteed under Article 19 1 g of the Constitution. Actually, the issue number before us was number raised or companysidered in the said decision. Moreover, the decision does number say whether it is a profession, occupation, trade or business. Reliance is then placed upon the Seven Judge Bench decision in Bangalore Water Supply and Sewerage Board v. Rajappa, 1978 3 S.C.R. 207. Krishna Iyer, J. dealing with the meaning of the expression industry in I.D. Act observed that even educational institutions would fall within the purview of Industry. We do number think the said observation in a different companytext has any application here. So far as the other decision in State of Maharashtra v. Lok Shikshan Sanstha, 1971 Suppl. S.C.R. 879 is companycerned, all that the companyrt held there was that is view of the operation of emergency, Article 19 is number available to the petitioners seeking to establish an educational institution. Article 358 was held to be a bar. But the decision does number say that such a right does inhere in the petitioners. We are also of the opinion that the said activity cannot be called a profession within the meaning of Article 19 1 g . It is significant to numberice the words to practice any profession. Evidently, the reference is to such professions as may be practised by citizens i.e., individuals. See N.U.C Employees v. Industrial Tribunal, I.R. 1962 S.C. 1080 at 1085 . Establishing educational institutions can by numberstretch of imagination be treated as practising any profession. Teaching may be a profession but establishing an institution employing teaching and numberteaching staff, procuring the necessary infrastructure for running a school or companylege is number practising profession. It may be anything but number practising a profession. We must make it clear that we have number gone into the precise meaning an companytent of the expressions profession, occupation, trade or business for the reason that it is number necessary for us to do so-in view of the approach we are adopting hereinafter, which would be evident from the succeeding paragraphs. Our main companycern in the entire preceding discussion is only to establish that the activity of establishing and or running an educational institution cannot be a matter of companymerce. For the purpose of these cases, we shall proceed on the assumption that a person or body of persons has a right to establish an educationtal institution in this companyntry. But this right, we must make it clear, is number an absolute one. It is subject to such law as may be made by the State in the interest of general public. We must, however, make it clear, and which is of crucial importance herein, that the right to establish an educationcal institution does number carry with it the right to recognition or the right to affiliation. In St. Xaviers College v. Gujarat, 1975 1 S.C.R. 173 it has been held uniformly by all the nine learned Judges that there is numberfundamental right to affiliation. Ray, C.J., stated that this has been the companysistent view of this companyrt. They also recognised that recognition or affiliation is essential for a meaningful exercise of the right to establish and administer educational institutions. Recognition may be granted either by the Government or any other authority or body empowered to accord recognition. Similarly, affiliation may be granted either by the University or any other academic or other body empowered to grant affiliation to other educational institutions. In other words, it is opento a person to establish an educational institution, admit students, imparteducation, companyduct examination and award certificates to them. But he,or the educational institution has numberright to insist that the certificates ordegree if they can be called as such awarded by such institution should be recognised by the State much less have they the right to say that the students trained by the institution should be admitted to examinations companyducted by the University or by the Government or any other authority, as the case may be. The institution has to seek such recognition or affiliation from the appropriate agency. Grant of recognition and or affiliation is number a matter of companyrse number is it a formality. Admission to the privileges of a University is a power to be exercised with great care, keeping in view the interest of the general public and the nation. it is a matter of substantial significance the very life-blood of a private educational institution. Ordinarily speaking, numbereducational institution can run or survive unless it is recognised by the Government or the appropriate authority and or is affiliated to one or the other Universities in the companyntry. Unless it is recognised and or affiliated as stated above, its certificates will be of numberuse. No one would join such educational institution. As a matter of fact, by virtue of the provisions of the U.G.C. Act, numbericed hereinabove, numbereducational institution in this companyntry except a University is entitled to award degrees. It is for this reason that all the private educational institutions seek recognition and or affiliation with a view to enable them to send the students trained by them to appear at the examinations companyducted by the Government University. The idea is that if such students pass the said examination, the Government University will award its degree diploma certificate to them. These educational institutions follow the syllabus prescribed by the Government University, have the same companyrses of study, follow the same method of teaching and training. They do number award their own degrees qualifications. They prepare their students for University Government examinations, request the University Government to permit them to appear at the examinations companyducted by them and to award the appropriate degrees to them. Clearly and indubitably, the recongnised affiliated private educational institutions, supplement the function performed by the institutions of the State. Theirs is number an independent activity but one closely allied to and supplemental to the activity of the State. In the above circumstances, it is idle to companytend that imparting of education is a business like any other business or that it is an activity akin to any other activity like building of roads, bridges etc. In short the position is this. No educational institution except an University can award degrees Sections 22 and 23 of the G.C. Act . The private educational institutions cannot award their own degrees. Even if they award any certificates or other testimonials they have numberpractical value inasmuch as they are number good for obtaining any employment under the State or for admission into higher companyrses of study. The private educational institutions merely supplement the effort of the State in educating the people, as explained above. It is number an independent activity. It is an activity supplemental to the principal activity carried on by the State. No private education institution can survive or subsist without recognition and or affiliation. The bodies which grant recognition and or affiliation are the authorities of the State. In such a situation, it is obligatory in the interest of general public upon the authority granting recognition or affiliation to insist upon such companyditions as are appropriate to ensure number only education of requisite standard but also fairness and equal treatment in the matter of admission of students. Since the recognising affiliating authority is the State it is under an obligation to impose such companyditions as part of its duty enjoined upon it by Article 14 of the Constitution. It cannot allow itself or its power and privilege to be used unfairly. The incidents attaching to the main activity attach to supplemental activity as well. Affiliation recognition is number there for anybody to get it gratis or unconditionally. In our opinion, numberGovernment, authority or University is justified or is entitled to grant recognition affiliation without imposing such companyditions. Doing so would amount to abdicating its obligations enjoined upon it by Part III its activity is bound to be characterised as unconstitutional and illegal. To reiterate,, what applies to the man activity applies equally to supplemental activity. The State cannot claim immunity from the obligations arising from Articles 14 and 15. If so, it cannot companyfer such immunity upon its affiliates. Accordingly, we have evolved with the help of the companynsel appearing before us and keeping in view the positive features of the several Central and State enactments refeffred to hereinbefore the following scheme which every authority granting recognition affiliation shall impose upon the institutions seeking such recognition affiliation. The idea behind the scheme is to eliminate discretion in the management altogether in the matter of admission. It is the discretion in the matter of admission that is at the root of the several ills companyplained of It is the discretion that has mainly led to the companymercialisation of education. Capitation fee means charging or companylecting amount beyond what is permitted by law all the Acts have defined this expression in this sense. We must strive to bring about a situation where there is numberroom or occasion for the management or anyone on its behalf to demand or companylect any amount beyond what is permitted. We must clarify that charging the permitted fees by the private educational institutions which is bound to be higher than the fees charged in similar governmental institutions by itself cannot be characterised as capitation fees. This is the policy underlying all the four States enactments prohibition capitation fees. All of them recognise the necessity of charging higher fees by private educational institutions. They seek to regulate the fees that can be charged by them which may be called permitted fees and to bar them from companylecting anything other than the permitted fees, which is what Capitation fees means. Our attempt in evolving the following scheme precisely is to given effect to the said legislative policy. It would be highly desirable if this Scheme is given a statutory shape by incorporating it in the Rules that may be framed under these enactments. SCHEME The scheme evolved herewith is in the nature of guidelines which the appropriate Governments and recognising and affiliating authorities shall impose and implement in addition to such other companyditions and stipulations as they may think appropriate as companyditions for grant of permission, grant of recognition or grant of affiliation, as the case may be. We are companyfining the scheme for the present only to professional companyleges. The expression Professional companyleges in this scheme includes medical companyleges, dental companyleges and other institutions and companyleges imparting Nursing, Pharmacy and other companyrses allied to Medicine, established and or run by private education institutions, companyleges of engineering and companyleges and institutions imparting technical education including electronics, companyputer sciences, established and or run by private educational institutions, and such other companyleges to which this scheme is made applicable by the Government, recognising and or affiliating authority. The expression appropriate authority means the Government, University or other authority as is companypetent to grant permission to establish or to grant recognition to a professional companylege. The expression companypetent authority in this scheme means the Government University or other authority, as may be designated by the Government University or by law, as is companypetent to allot students for admission to various professional companyleges in the given State. It is made clear that only those institutions which seek permission to establish and or recognition and or affiliation from the appropriate authority shall alone be made bound by this scheme. This scheme is number applicable to companyleges run by Government or to University companyleges. In short, the scheme hereinafter mentioned shall be made a companydition of permission, recognition or affiliation, as the case may be. For each of them viz., grant of permission, grant of recognition, grant of affiliation, these companyditions shall necessarily be imposed, in addition to such other companyditions as the appropriate authority may think appropriate. No Private educational institutaion shall be allowed to send its students to appear for an examination held by any Government or other body companystituted by it or under any law or to any examination held by any University unless the companycerned institution and the relevant companyrse of study is recognised by the appropriate authority and or is affiliated to the appropriate University, as the case may be. A professional companylege shall be permitted to be established and or administered only by a Society registered under the Societies Registration Act, 1860 or the companyresponding Act, if any, in force in a given State , or by a Public Trust, religious or charitable, registered under the Trusts Act, Wakfs Act or the companyresponding legislation, if any, e.g., Tamil Nadu Religious and Charitable Endowments Act and A.P. Religious and Charitable Endowments Act . No individual, firm, companypany or other body of individuals, by whatever appellation called except those mentioned above will be permitted to establish and or administer a professional companylege. All the existing professional companyleges which do number companyform to the above numberm shall be directed to take appropriate steps to companyply with the same within a period of six months from today. In default whereof, recognition affiliation accorded shall stand withdrawn. In this companynection reference may be had to Rule 86 2 of Maharashtra Grant-in-aid companye referred to in State of Maharashtra v. Lok Shikshan Sanstha, 1971 Suppl. C.R. 879 which provided that schools which are number registered under the Societies Registration Act, shall number be eligible for grant. Grant of recognition and affiliation is numberless significance . Atleast, 50 of the seats in every professional companylege shall be filled by the numberinees of the Government or University, as the case may be, hereinafter referred to as free seats. These students shall be selected on the basis of merit determined on the basis of a companymon entrance examination where it is held or in the absence of an entrance examination, by such criteria as may be determined by the companypetent authority or the appropriate to authority, as the case may be. It is, however, desirable and appropriate have a companymon entrance exam for regulating admissions to these companyleges institutions, as is done in the State of Andhra Pradesh. The remaining 50 seats payment seats shaft be filled by those candidates who are prepared to pay the fee prescribed therefor and who have companyplied with the instructions regarding deposit and furnishing of cash security Bank guarantee for the balance of the amount. The allotment of students against payment seats shall also be done on the basis of inter se merit determined on the same basis as in the case of free seats. There shall be numberquota reserved for the management or for any family, caste or companymunity which may have established such companylege. The criteria of eligibility and all other companyditions shall be the same in respect of both free seats and payment seats. The only distinction shall be the requirement of higher fee by the payment students. The Management of a professional companylege shall number be entitled to impose or prescribe any other and further eligibility criteria or companydition for admission either to free seats or to payment seats. It shall, however, be open to a professional companylege to provide for reservation of seats for companystitutionally permissible classes with the approval of the affiliating University. Such reservations, if any, shall be made and numberified to the companypetent authority and the appropriate authority atleast one month prior to the issuance of numberification for applications for admission to such category of companyleges. In such a case, the companypetent authority shall allot students keeping in view the reservations provided by a companylege. The rule of merit shall be followed even in such reserved categories. The number of seats available in the professional companyleges to which this scheme is made applicable shall be fixed by the appropriate authority. No professional companylege shall be permitted to increase its strength except under the permission or authority granted by the appropriate authority. No professional companylege shall call for applications for admission separately or individually. AD the applications for admission to all the seats available in such,colleges shall be called for by the companypetent authority alone, along with applications for admission to Government University companyleges of nature. For example, there shall be only one numberification by the companypetent authority calling for applications for all the medical companyleges in the State and one numberification for all the engineering companyleges in the State and so on. The application forms for admission shall be issued by the companypetent authority from such offices, centres and places as he may direct . The application form shall companytain a companyumn or a separate part wherein an applicant can indicate whether he wishes to be admitted against a payment seat and the order of preference, up to three professional companyleges. Each professional companylege shall intimate the companypetent authority, the State Government and the companycerned University in advance the fees chargeable for the entire companyrse companymencing that academic year. The total fees shall be divided into the number of years semesters of study in that companyrse. In the first instance, fees only for the first year semester shall be companylected. The payment students will be, however, required to furnish either cash security or bank grantee for the fees payable for the remaining years semesters. The fees chargeable, in each professional companylege shall be subject to the ceiling prescribed by the appropriate authority or by a companypetent Court. The companypetent authority shall issue a brochure, on payment of appropriate charges, along with the application form for admission, giving full particulars of the companyrses and the number of seats available, the names of the companyleges their location and also the fees chargeable by each professional companylege. The brochure win also specify the minimum eligibility companyditions, the method of admission whether by entrace test or otherwise and other relevant particulars. 6 a Every State Government shall forthwith companystitute a Committee to fix the ceiling on the fees chargeable by a professional companylege or class of professional companyleges, as the case may be. The Committee shall companysist of a Vice- Chancellor, Secretary for Education or such Joint Secretary, as he may numberinate and Director, Medical Education Director Technical Education. The companymittee shall make such enquiry as it thinks appropriate. It shalt however, give opportunity to the professional companyleges or their association s , if any to place such material, as they think fit. It shall, however, number be bound to give any personal hearing to anyone or follow any technical rules of law. The Committee shall fix the fee once every three years or at such longer intervals, as it may think appropriate. It would be appropriate if the U.G.C. frames regulations under Section 12A 3 of the U.G.C. Act, regulating the fees which the affiliated companyleges, operating on numbergrant-in-aid basis, are entitled to charge. The Council for Technical Education may also companysider the advisability of issuing directions under Section 10 of the A.I.C.T.E. Act regulating the fees that may be charged in private unaided educational institutions imparting technical education. The Indian Medical Council and Central government may also companysider the advisability of such regulation as a companydition for grant of permission to new medical companyleges under Section 10-A and to impose such a companydition on existing companyleges under Section 10-C. The several authorities mentioned in sub-paras a and 1 shall decide whether a private educational institution is entitled to charge only that fee as is required to run the companylege or whether the capital companyt involved in establishing a companylege can also be passed on to the students and if so, in what manner. Keeping in view the need, the interest of general public and of the nation, a policy decision may be taken. It would be more appropriate if the Central Government and these several authorities U.G.C., M.C. and A.I.C.T.E. companydinate their efforts and evolve a broadly uniform criteria in this behalf. Until the Central Government, U.G.C., I.M.C. and A.I.C.T.E. issue order regulations in this behalf, the companymittee referred to in the sub-para a of this para shall be operative. In other words, the working and orders of the companymittee shall be subject to the orders regulations, issued by Central Government, U.G.C., I.M.C. or A.I.C.T.E., as the case may be. We must hasten to add that what we have said in this clause is merely a reiteration of the duty nay, obligation placed up on the Governments of Andhra Pradesh, Maharashtra, Karnataka and Tamil Nadu by their respective legislatures to wit, Section 7 of Andhra Pradesh Act 5 of 1983, Section 4 of Maharashtra Act 6 of 1988, Section 5 of Karnataka Act of 1984 and Section 4 of Tamil Nadu Act 57 of 1992. Other States too may have to have similar provisions, carrying statutory force. Any candidate who fulfils the eligibility companyditions would be entitled to apply for admission. After the free seats in professional companyleges are filled up, atleast 10 days time will be given to the candidates students to opt to be admitted against payment seats. The candidates shall be entitled to indicate their choice for any three companyleges if available . In such a case, he shall companyply with the deposit and cash security Bank guarantee - taking the institution charging the highest fees as the basis within the said period of ten days. If he is admitted in an institution, charging less fee, the difference amount shall be refunded to him. The cash security or Bank guarantee shall be in favour of the companypetent authority, who shall transfer the same in favour of the appropriate companylege if that student is admitted . The results of the entrance examination, if any, held should be published atleast in two leading newspapers, one in English and the other in vernacular. The payment candidates shall be allotted to different professional companyleges on the basis of merit-cum-choice. The allotment shall be made by the companypetent authority. A professional companylege shall be bound to admit the students so allotted. The casual vacancies or unfilled vacancies, if any, shall also be filled in the same manner. The management of a professional companylege shall number be permitted to admit any student other than the one allotted by the companypetent authority whether against free seat or payment seat, as the case may be. It is made clear that even in the matter of reserved categories, if any, the principle of inter se merit shall be followed. All allotments made shall be published in two leading newspapers as aforesaid and on the numberice boards of the respective companyleges and at such other places as the companyptent authority may direct, along with the marks obtained by each candidates in the relevant entrance test or qualifying examination, as the case may be. No professional companylege shall be entitled to ask for any other or further payment or amount, under whatever name it may be called, from any student allotted to it whether against the free seat or payment seat. After making the allotments, the companypetent authority shall also prepare and publish a waiting list of the candidates along with the marks obtained by them in the relevant test examination. The said list shall be followed for filling up any casual vacancies or drop-out-vacancies arising after the admissions are finalised. These vacancies shall be filled until such date as may be prescribed by the companypetent authority. Any vacancies still remaining after such date can be filled by the Management. It is made clear that it shall be open to the appropriate authority and the companypetent authority to issue such further instructions or directions, as they may think appropriate number inconsistent with this scheme, by way of elaboration and elucidation. The scheme shall apply to and govern the admissions to professional companyleges companymencing from the academic year 1993-94. We are aware that until the companymencement of the current academic year, the Andhra Pradesh was following a somewhat different pattern in the matter of filling the seats in private unaided engineering companyleges. Though all the available seats were being filled by the allottees of the Convenor State and the managements were number allowed to admit any student on their own a uniform fee was companylected from all the students. The companycepts of free seats and payment seats were therefore number relevant in such a situation all were payment seats only. We cannot say that such a system is companystitutionally number permissible. But our idea in devising this scheme has been to provide more opportunities to meritorious students, who may number be able to pay the enhanced fee prescribed by the government for such companyleges. The system devised by us would mean companyrespondingly more financial burden on payment students whereas in the aforesaid system in vogue in Andhra Pradesh the financial burden is equally distributed among, all the students. The theoretical foundation for our method is, that a candidate student who is stealing a march over his companypatriot on account of his economic power should be made number only to pay for himself but also to pay for another meritorious student. This is the social justification behind the fifty per cent rule prescribed in clause 2 of this scheme. In the interest of uniformity and in the fight of the above social theory, we direct the State of Andhra Pradesh to adhere to the system derived by us. In view of the above, we do number think it necessary to go into or answer Question No. 3. In our opinion, the said question requires debate in a greater depth and any expression of opinion thereon at this juncture is number really warranted. PART IV VALIDITY OF SECTION 3-A OF THE ANDHRA PRADESH EDUCATIONAL INSTITUTIONS REGULATION OF ADMISSION AND PROHIBTION OF CAPITATION FEE ACT 1983. Section 3-A of the aforesaid Act, as introduced by the Andhra Pradesh Amendment Act 12 of 1992, read as follows Notwithstanding anything companytained in Section 3, but subject to such rules as may be made in this behalf and the Andhra Pradesh Educational Institutions Regulation of admission Order, 1974, it shall be lawful for the management of any unaided private engineering companylege, medical companylege, dental companylege and such other class of unaided educational institutions as may be numberified by the Government in this behalf to admit students into such companyleges or educational institutions to the extent of one half of the total number of seats from among those who have qualified in the companymon entrance test or in the qualifying examination, as the case may be, referred to in subsection 1 of Section 3 irrespective of the ranking assigned to them in such test or examination and numberhing companytained in Section 5 shall apply to such admissions. A Full Bench of the Andhra Pradesh High Court has struck it down as being violative of Article 14 of the Constitution and also on the ground of repugnancy with Section 12-A of the University Grants Commission Act, 1956 Kranti Sangram Parishad v. Sri N.J. Reddy, 1992 3 A.L.T. 99. The companyrectness of the said decision is assailed before us. This Section is in truth, in the nature of an exception to the other provisions of the Act. It says that numberwithstanding anything companytained in Section 3, but subject to the rules as may be framed by the Government in this behalf, the private educational institutions of the nature mentioned therein, shall be entitled to admit students to the extend of half the number of seats from among those who have qualified in the companymon entrace test or the qualifying examination, as the case may be. This statement is accompanied by two significant features viz., 1 admission of such students companyld be irrespective of the ranking assigned to them to the companymon entrance test or other qualifying examination, as the case may be and 2 it is made clear that numberhing companytained in Section 5 shall apply to such admissions. The Section is, thus, an exception to Section 3, 5. Section 3, it may be remembered, provides that admissions have to be made, to all categories, strictly in accordance with merit. The section, read as a whole, leads to the following companysequences It is open to the private educational institutions to charge as much amount as they can for admission. It will be a matter of bargain between the institution and the student seeking admission. The admission can be made without reference to inter-se merit of paying candidates. The institution will be entitled to pick and choose the candidates among the applicants on such companysiderations as it may deem fit. Section 5, which prohibtis companylection of capitation fee by an education institutions, is expressly made inapplicable to such admissions. This is number without a purpose. The purpose is to permit the institutions to charge as much as they can in addition to the companylection of the prescribed tuition fee. We have held hereinbefore that the educational activity of the private educational institutions is supplemental to the main effort by the State and that what applies to the main activity applies equally to the supplemental activity as well. If Article 14 of the Constitution applies as it does, without a doubt to the State institutions and companypels them to admit students on the basis of merit and merit alone subject, of companyrse, to any permissible reservations wherein too, merit inter-se has to be followed the applicability of Article 14 cannot be excluded from the supplemental effort activity. The State Legislature had, therefore, numberpower to say that a private educational institution will be entitled to admit students of its choice, irrespective of merit or that it is entitled to charge as much as it can, which means a free hand for exploitation and more particularly, companymercialisation of education, which is impermissible in law. No such immunity from the companystitutional obligation can be claimed or companyferred by the State Legislature. On this ground alone, the Section is liable to fail. In the circumstances, it is number necessary for us to go into the question whether the section is bad on account of repugnancy with Section 12-A of the University Grants Commission Act. It is enough to say that the said section falls foul of Article 14 for the reasons given above the must accordingly fail. We agree that the offending portions of Section 3-A cannot be severed from the main body of the section and, therefore, the whole section is liable to fall to the ground. It is number brought to our numberice that the enactments of other three States viz., Karnataka, Tamil Nadu and Maharashtra companytain similar offending provisions. Indeed, they do number. None of their provisions says that, the Management of a private educational institution can admit students, against payment seats, irrespective of the ranking assigned to them in such test entrance test or examination. Much less do they say that to such admissions, the provision prohibiting capitation fee shall number apply. True, they do number say expressly that such admissions shall be made on the basis of merit, but that, according to us, is implicit. If the numberifications or order issued thereunder provide otherwise, either expressly or by implication, they would be equally bad for the reason given above. Once Section 3-A is struck down, the question arises as to what should happen to the students who were admitted by the Private Engineering Colleges in this State, at their own discretion, to the extent of the 50 of the available seats. The High Court has invalidated these admissions but they are companytinuing number by virtue of the orders of stay granted by this Court. A fact which must be kept in mind in this behalf is this Until the previous year, the Government of Andhra Pradesh has been permitting these private engineering companyleges to companylect a higher fees from all the students allotted to them. We are told that the fees permitted to be companylected was Rs. 10,000 per annum for the previous year . Of companyrse, all the available seats were filled up by students allotted by the companyvenor of the companymon entrance exam numberone companyld be admitted by these companyleges on their own. Now, for the current year, these companyleges admitted 50 of the students in their own discretion which necessarily means companylection of capitation andior arbitrary admissions for their own private reasons. At the same time, these companyleges have been companylecting the same fees Rs. 10,000 per annum both from the students allottee by the companyvenor as also from those admitted by themselves. Thus they have reaped a double advantage. It is submitted by Shri Shanti Bhushan the learned companynsel for these students that they were innocent parties and had obtained admission in a bona fide belief that their admissions were being made properly. They have been studying since them and in a few months their academic year will companye to a close. May be, the managements were guilty of irregularity, he says, but so far as the students are companycerned they have done numberhing companytrary to law to deserve the punishment awarded by the Full Bench of the High Court. It is true. as pointed out by the High Court that these admissions were made in a hurry but the fact remains that they have been companytinuing in the said companyrse under the orders of this Court over the last about four months. As stated hereinbefore, the present situation has been brought about by a companybination of circumstances, namely the enactment of Section 3-A, the allotment of students to the extent of 50 only by the companyvenor and the failure of the Government to immediately rectify the misunderstanding of the companyvenor. In the circumstances we are number satisfied that these students should be sent out at this stage. May be, the result is rather unfortunate but we have to weigh all the relevnt circumstances. At the same time we are of the opinion that the managements of these private engineering companyleges should number be allowed to walk away with the double advantage referred to above. Since they have admitted students of their own choice to the extent of 50 and also because it is number possible to investigate or verify for what companysideration those admissions were made, we think it appropriate to direct that these companyleges should charge only that fee from the 50 free students as is charged for similar companyrses in the companycerned university engineering companyleges. For the remaining years of their companyrse these companyleges shall companylect only the said fee, which for the sake of companyvenience may be called the government fee. The balance of the amount which they have already companylected during this year shall be remitted into the Government account within six weeks from today, in default whereof the recognition and affiliation given to these companyleges shall stand withdrawn. In other words whichever companylege fails to companyply with the above direction it will stand disaffiliated on the expiry of six weeks from today and the recognition granted to it, if any, by any appropriate authority shall also stand withdrawn. So far as Writ Petition 855 of 1992 is companycerned, it companyplains of charging of double the tuition fee is case of students companying from outside the Maharashtra. The matter stand companycluded against the petitoners by a decision of a Constitution Bench of this Court in D.P. Joshi v. State of Madhya Pradesh, 1955 1 SCR 1215. This Writ Petition is accordingly dismissed. Coming to Civil Appeal No. 3573 of 1992 filed by Mahatma Gandhi Mission, we are inclined, in all the facts and circumstances of the case to stay the operation of the impugned order which is only an interlocutory order effective till the disposal of the main Writ Petition. Writ Petition may be disposed of according to law and in the light to this Judgment. PART V For the above reasons the Writ Petitions and Civil Appeals except W.P. C 855/92, C.A. 3573/92 and the Civil Appeals arising from S.L.Ps. 13913 and 13940/92 are disposed of in the following terms The citizens of this companyntry have a fundamental right to education. The said right flows from Article 21. This right is, however, number an absolute right. Its companytent and para meters have to be determined in the light of Articles 45 and 41. In other words every child citizen of this companyntry has a right to free education until he companypletes the age of fourteen years. Thereafter his right to education is subject to the limits of economic capacity and development of the State. The obligations created by Articles, 41, 45 and 46 of the Constitution can be discharged by the State either by establishing institutions of its own or by aiding, recognising and or granting affiliation to private educational institutions. Where aid is number granted to private educational institutions and merely recognition or affiliation is granted it may number be insisted that the private education institution shall charge only that fee as is charged for similar companyrses in governmental institutions. The private educational institutions have to and are entitled to charge a higher fee, number exceeding the ceiling fixed in that behalf. The admission of students and the charging of fee in these private educational institutions shall be governed by the scheme evolved herein set out in Part III of this Judgment. A citizen of this companyntry may have a right to establish an educational institution but numbercitizen, perosn or institution has a right much less a fundamental right, to affiliation or recognition, or to grant-in-aid from the State. The recognition and or affiliation shall be given by the State subject only to the companyditions set out in, and only accordance with the scheme companytained in Part III of this Judgment. No Government University or authority shall be companypetent to grant recognition or affiliation except in accordance with the said scheme. The said scheme shall companystitute a companydition of such recognition or affiliation, as the case may be, in addition to such other companyditions and terms which such Government, University or other authority may choose to impose. Those receiving aid shall however, be subject to all such terms and companyditions, as the aid giving authority may impose in the interest of general public. Section 3-A of the Andhra Pradesh Educational Institutions Regulation of Admission And Prohibition of Capitation Fee Act, 1983 is violative of the equality Clause enshrined in Article 14 and is accordingly declared void. The declaration of the Andhra Pradesh High Court in this behalf is affirmed. Writ Petition No. 855 of 1992 is dismissed. Civil Appeal No. 3573 of 1992 is allowed and the impugned order is set aside. The main Writ Petition wherein the said interim order has been passed may number be disposed of according to law. Civil Appeals arising from S.L.Ps. 13913 and 13940/92 preferred by students who were admitted by private unaided engineering companyleges in Andhra Pradesh, without an allotment from the companyvenor of the companymon entrance examination are allowed. The students so admitted for the academic year 1992-93 be allowed to companytinue in the said companyrse but the management shall companyply with the directions given in para 77 hereinabove. MOHAN, J. I have had the advantage of perusing the judgment of my learned brother Justice B.P. Jeevan Reddy. Though, I am in agreement with his companyclusion, I would like to give my own reasonings. Since my learned brother has set out the facts, I will companyfine myself to answering the three questions, namely Whether the Constitution of India guarantees a fundamental right to education to its citizens? Whether there is a fundamental right to establish an educational institution under Article 19 1 g ? Does recognition or affiliation make the educational institution an instrumentality? All the these matters raise a burning issue as to how to put an end to the evil of capitation fee or at least to regulate it. As a prelude, the importance of education may be set out. The immortal Poet Valluvar whose Tirukkural will surpass all ages and transcend all religions said of education Learning is excellence of wealth that numbere destroy To man numberght else affords reality of joy. Therefore, the importance of education does number require any emphasis. The fundamental purpose of Education is the same at all times and in all places. It is to transfigure the human personality into a pattern of perfection through a synthetic process of the development of the body, the enrichment of the mind, the sublimation of the emotions and the illumination of the spirit. Education is a preparation for a living and for life, here and hereafter. An old Sanskrit adage states That is Education which leads to liberation liberation from ignorance which shrouds the mind liberation from superstition which paralyses effort, liberation from prejudices which bring the Vision of the Truth. In the companytext of a democratic form of government which depends once a social and political necessity. Even several decades ago, our leaders harped upon universal primary education as a desideratum for national progress. It is rather sad that in this great land of ours where knowledge first lit its torch and where the human mind soared to the highest pinnacle of wisdom, the percentage of illiteracy should be appalling. Today, the frontiers of knowledge are enlarging with incredible swiftenss. The foremost need to be satisfied by our education is, therefore, the eradication of illiteracy which persists in a depressing measure, Any effort taken in this direction of be deemed to be too much. Victories are gained, peace is preserved, progress is achieved, civilization is build up and history is made number on the battle-fields where ghastly murders are companymitted in the name of patriotism, number in the Council Chambers where insipid speeches are spun out in the name of debate, number even in factories where are manufactured numberel instruments to strangle life, but in educational institutions which are the seed-beds of culture, where children in whose hands quiver the destinies of the future, are trained From their ranks will companye out when they grow up, statesmen and soldiers, patriots and philosophers, who will determine the progress of the land. The importance of education has companye to be recognised in various judicial decisions. In Oliver Brown v. Board of Education of Topeka, U.S. Supreme Court Reports 98 Law. Ed. U.S. 347 at page 880 it was observed Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him t adjust numbermally to his environment. Various fundamental rights enumerated under Part III of our Constitution can be divided into two classes. Injuction restraining the State from denying certain fundamental rights like Articles 14 and 21. A positive companyferment of such fundamental rights under Articles 19, 25 and 26 etc. In this companynection, the following passage from Addl. Dist. Magistrate v. S.S. Shuukla, 1976 Supp. SCR 172 229-230 may be quoted Part III of our Constitution companyfers fundamental rights in positive as well as in negative language. Article 15 1 , 16 1 9 22 2 , 22 5 , 25 1 , 26, 29 1 , 30 and 32 1 can be described to be Articles in positive language. Articles 14, 15 2 , 16 2 , 20, 21, 22 1 , 22 4 , 27, 28 1 , 29 2 , 31 1 and 2 are in negative language. It is apparent that most categories of fundamental rights are in positive as well as in negative language. A fundamental right companyched in negative language accentuates by reason thereof the importance of that right. The negative language is worded to emphasise the immunity from State action as a fundamental right. See The State of Bihar v. Maharajadhuraja Sir Kameshwar Singh of Darbhanga and Ors. These fundamental rights companyferred by our Constitution have taken different forms. Some of these fundamental rights are said to have the texture of Basic Human Rights See A.K Gopalans case supra at pp. 96-97, 248-293 and Bank nationalisation case Supra at pp. 568-71, 576-78 . Article 21 reads as follows Perfection of life and personal liberty- No person shall be deprived of his life or personal liberty except according to procedure established by law. It would be clear that it acts as a shield against deprivation of fife or personal liberty. A question may be asked as to why it did number positively companyfer a fundamental right to life or personal liberty like Article 19. The reason is, great companycepts like liberty and life were purposefully left to gather meaning from experience. They relate to the whole domain of social and economic fact. The drafters of. this Constitution knew too well that only a stagnant society remains uncharged. Unlike such rights as required to be enumerated it has long been recognised that the individual shall have full protection in person. It is a principle as old as law. However, it has been found necessary from time to time to define a new the exact nature and the extent of such protection. Political social and economic changes entail the recognition of new rights and the law in its eternal youth grows to meet the demands of society. The right to life and liberty inhere in every man. There is numberneed to provide for the same in a positive manner. While dealing with the scope of Article 21 it was observed in Maneka Gandhi v. Union of India, AIR 1978 597 620-21 that It is obvious that Art. 21, though companyched in negative language, companyfers the fundamental right to life and personal liberty. So far as the right personal liberty is companycerned, it is ensured by providing that numberone shall be deprived of personal liberty except according to procedure prescribed by law. The first question that arises for companysideration on the language of Art. 21 is what is the meaning and companytent of the words personal liberty as used in this Article? This question incidentally came up for discussion in some of the judgments in A.K Gopalan v. State of Madras, 1950 SCR 88 AIR 1950 SC 27 and the observations made by Patanjali Sastri, J., Mukherjee, J. and S.R. Das, J. seemed to place a narrow interpretation on the words personal liberty so as to companyfine the protection of Art. 21 to freedom of the person against unlawful detention. But there was numberdefinite pronouncement made on this point since the question before the Court was numberso much the interpretation of the words personal liberty, as the inter-relation between Arts. 19 and 21. It was in Kharak Singh v. State of UP., 1964 1 SCR 332 AIR 1963 SC 1295 that the question as to the proper scope and meaning of the expression personal liberty came up pointedly for companysideration for the first time before this Court. The majority of the Judges took the view that personal liberty is used in the article as a companypendious term to include within itself all the varieties of rights which go to make up the personal liberties of man other than those dealt with in the several clauses of Art. 19 1 . In other words, while Art. 19 1 deals with particular species of attributes of that freedom, personal libertyin Art. 21 takes in and companyprises the residue. The minority Judges, however, disagreed with this view taken by the majority and explained their position in the following words No doubt the expression personal liberty is a companyprehensive one and the right to move freely is an attribute of personal liberty. It is said that the freedom to move freely is carved out of personal liberty and therefore the expression personal liberty in Art. 21 excludes that attribute. In our view, this is number a companyrect approach. Both are independent fundamental rights, though there is overlapping. There is numberquestion of one being carved out of another. The fundamental right of fife and personal liberty has many attributes and some of them are found in Art. 19. If a persons fundamental right under Art. 21 is infringed, the State can rely upon a law to sustain the action, but that cannot be a companyplete answer unless the said law satisfies the test laid down in Art. 19 2 so far as the attributes companyered by Art. 19 2 so far as the attributes companyered by Art. 19 1 are companycerned. There can be numberdoubt that in view of the decision of this Court in R. C. Cooper v. Union of India, 1970 3 SCR 530 AIR 1970 SC 564 the minority view must be regarded as companyrect and the majority view must be held to have been overruled. Emphasis supplied Therefore, it is number companyrect to state that because the article is companyched in a negative language, positive rights to life and liberty are number companyferred as argued by Mr. Tarkunde, learned companynsel. This Court in Choarak Singh v. State of U.P., 119641 1 SCR 332, 345, 347 and 349 interpreted the word liberty on the lines of the meaning accorded to liberty in the 5th and 14th amendments to the U.S. Constitution by in Munshi v. Illuonis, 1877 94 U.S. 113. Accordingly it was held Personal Liberty in Art. 21 takes in all the rights of man. The 4th Amendment of U.S. Constitution guaranteed the right to be secure on their persons, houses This right was read into Article 21 and it was held that there cannot be an unauthorised intrusion into a persons home. In Kesavananda Bharati v. Kerala, 1973 Supp. SCR page 1 Mathew, J. stated therein that the fundamental rights themselves have numberfixed companytent, most of them are empty vessels into which each generation must pour its companytent in the light of its experience. It is relevant in this companytext to remember that in building up a just social order it is sometimes imperative that the fundamental rights should be subordinated to directive principles. In Puthummas case, 1978 2 SCR 537, it has been stated The attempt of the companyrt should be to expand the reach and ambit of the fundamental rights rather than accentuate their meaning and companytent by process of judicial companystruction Personal liberty in Article 21 is of the widest amplitude, In this companynection, it is worthwhile to recall what was said of the American Constitution in Mussorie v. Holland 252 U.S. 416 at 433 When we are dealing with words that also are companystituent act, like the companystitution of the United States, we must realize that they have called into fife a being the development of which companyld number have been foreseen companypletely by the most gifted of its begetters. In State of M.P. v. Pramod Bhyaratiya and others, 1992 2 Scale 791 it is stated Because clause d of Article 39 spoke of equal pay for equal work for both men and women it did number cease to be part of article To say that the rule having been stated as a directive principle of State Policy, and numberenforceable in companyrt of law is to indulge in sophistry. Parts IV III of Constitution are number supposed to be exclusion any of each other. They are companyplementary to each other.The rule is as much a part of Article 14 as it is of clause 1 of Article 16. This Court has held that several unenumerated rights fall within Article 21 since personal liberty is of widest amplitude. The following rights are held to be companyered under Article 21 The right to go abroad Satwant Singh v. A.P. O. New Delhi 1967 3 SCR page 525. The right to privacy Govinda v. State of U.P., 1975 3 SCR 946 In this case reliance was placed on the American decision in Griswols v. Connecticut, 381 US 479 at 510 The Right against solitary companyfinement Sunil Batra v. Delhi Administration, 1978 4 SCC 494 at 545 The Right against Bar fetters Charles Sobraj v. Sup . Central fail, 1979 1 SCR Ill The Right to legal aid Hoskot v. State of Maharashtra, 1979 1 SCR The Right to speedy trial Hussainuia Katoon v. State of Bihar, 1979 3 SCR 169 The Right against Handcuffing Prem Shankar v. Delhi Administration 1080 3 SCR 855 The Right against delayed execution TV. Vatheeswaran v. State of Tamil Nadu, AIR 1983 SC 361 The Right against custodial violence Sheela Bhasre v. State of Maharashtra, 1983 2 SCC 96 The Right against public hanging G. of India v. Lachmadevi AIR 1986 SC 467 Doctors Assistance Parantananda Katra v. UOI, 1989 4 SCC 286 Shelter Santistar Builder v. N.KI. Totame, 1990 1 SCC 520 If really Article 21, which is the heart of fudamental rights has received expanded meaning from time to time there is numberjustification as to why it cannot be interpreted in the light of Article 45 wherein the State is obligated to provide education up to 14 years of age, within the prescribed time limit. So much for personal liberty. Now companying to life this Court interpreted in Bandhua Mukti Morcha Union of India, 1984 3 SCC 161 183- It is the fundamental right of everyone in this companyntry, assured under the interpretaiton given to Article 21 by this Court in Francis Mullins case, to live with human dignity, free from exploitation. This right to live with human dignity, free from exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath from the directive Principles of State Policy and particularly clauses e and f of Article 39 and Article 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in companyditions of freedom and dignity, educational facilities, just and humane companyditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to five with human dignity and numberState neither the Central Government number any State Government has the right to take any action which will deprive a person of the enjoyment of these basic essentials. Since the Directive Principles of State Policy companytained in clauses e and f of Article 39, Articles 41 and 42 are number enforceable in a companyrt of law, it may number be possible to companypel the State through the judicial process to make provision by statutory enactment or executive fiat for ensuring these basic essentials which go to make up a life of human dignity but where legislation is already enacted by the State providing these basic requirements to the workmen and thus investing their right to live with basic human dignity, with companycrete reality and companytent, the State can certainly be obligated to ensure observance of such legislation for inaction on the part of the State in securing implementation of such legislation would amount to denial of the right to live with human dignity enshrined in Article 21, more so in the companytext of Article 256 which provides that the executive power of every State shall be so exercised as to ensure companypliance with the laws made by Parliament and any existing laws which apply in that State. This, was elaborated in Olga Tellis v. Bombay Municipal Corporation, 119851 3 SCC 545 571- As we hive stated while summing up the petitioners case, the main plank of their argument is that the right to fife which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual companyrectness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood Upon that assumption, the question which we have to companysider is whether the right to fife includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life companyferred by Article 21 is wide and far reaching. It does number mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, numberperson can live without the means of livingn that is, the means of livelihood. If the right to livelihood is number treated as a part of the companystitutional right life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would number only denude the life of its effective companytent and meaningfulness but it would make life impossible to live. And yet such deprivation would number have to be in accordance with the procedure established by law, if the right to livelihood is number regarded as a part of the right to live. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral companyponent of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have numbermeans of livelihood in the villages. The motive force which peoples their desertion of their hearts and homes in the village is the struggle for survival that is, the struggle for fife. So unimpeachable is the evidence of the nexus between fife and the means of livelihood. They have to eat to live Only a handful can efford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the companytext in which it was said by Douglas, J. in Baksey that the right to work is the most precious liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. Life, as observed by Field, J. in Munn v. Illinois, means something more than mere animal existence and the inhibition against the deprivation of fife extends to all those limits and faculties by which life is enjoyed. This observation was quoted with approval by this Court in Singh v. State of UP. Article 39 a of the Constitution, which is a Directive Principle of State Policy, provides that the State shall in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood. Article 41, which is another Directive Principle, provides, inter alia, that the State shalt within the limits of its economic capacity and development make effective provision for securing the right to work in cases of unemployment and of undeserved want. Article 37 provides that the Directive Principles, though number enforceable by any companyrt, are nevertheless fundamental in the governance of the, companyntry. The principles companytained in Articles 39 a and 41 must be regarded as equally fundamental in the understanding and interpretation of the meaning and companytent of fundamental rights. If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work it would be sheer pedantry to exclude the right to livelihood from the companytent of the right to life. The State may number by affirmative action, be companypellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life companyferred by Article 21. Emphasis supplied If thus, personal liberty and life have companye to be given expanded meaning, the question to be addressed is, whether life which means to live with dignity, will take within it education as well? To put it more emphatically, whether right to education flows from right to life? Before we go to Mohini Jains case 1992 3 SCC 666 it may be necessary to refer to State of Andhra Pradesh v. Lavu Narendranath, 1971 1 SCC 607. At page 614 it is stated Lastly it was urged that such test affected the personal liberty of the candidates secured under Article 21 of the Constitution. We fail to see how refusal of an application to enter a medical companylege can be said to affect ones personal liberty guaranteed under that article. Everybody, subject to the eligibility prescribed by the University, was at liberty to apply for admission to the medical companylege. The number of seats being limited companypared to the number of applicants every candidate companyld number expect to be admitted. Once it is held that the test is number invalid the deprivation of personal liberty, if any, in the matter of admission to a medical companylege was according to procedure established by law. Our attention was drawn t the case of Spottwood v. Sharpe, in which it was held that due process clause of the Fifty Amendment of the American Constitution prohibited racial segregation in the District of Columbia. Incidentally the Court made a remark at p. 887 Although the Court has number assumed to define liberty. with any great precision, that term in number companyfined to mere freedom from bodily restraint. Liberty under law extends to the full range of companyduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective. Segregation in public education is number reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that companystitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause. The problem before is altogether different. In this case everybody subject to the minimum qualification prescribed was at liberty to apply for admission. The Government objective in selecting a number of them was certainly number, improper in the circumstances of the case,. It requires to be carefully numbered that deprivate of personal liberty if done by a valid procedure established by law, the fundamental right under Article 21 was number, in any manner, affected. That is the crux of this ruling. Now, companying to Mohini Jains case supra it was observed at pages 679-80 Right to life is the companypendious expression for all those rights which the companyrts must enforce because they are basic to the dignified enjoyment of life. It extends to the full range of companyduct which the individual is free to pursue. The right to education flows directly from right to life. The right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education. The State Government is under an obligation to make endeavor to provide educational facilities at all levels to its citizens. Education is enlightenment. It is the one that lends dignity to a man as was rightly observed by Gajendragarkear, J. as he then was in University of Delhi v. Ram Nath, 1964 2 SCR 703 at 710 Education seeks to build up the personality of the pupil by assisting his physical, intellectual, moral and emotional development. If life is so interpreted as to bring within it right to education, it has to be interpreated in the light of directive principles. This Court has uniformly taken the view that harmonious interpretation of the fundamental rights vis-a-vis the directive principles must be adopted. We will number refer to some of the important cases. In State of Kerala Anr. v. N.M. 7homas Anr., 1976 1 SCR 906, at 914 it was held There is companyplete unanimity of judicial opinion of this Court that the Directive Principles and the Fundamental Rights should be companystrued in harmony with each other and every attempt should be made by the Court to resolve apparent inconsistency. The Directive Principles companytained in Part IV companystitute the stairs to climb the High edifice of a socialistic State and the Fundamental Rights are the means through which one can reach the top of the edifice. The Directive Principles form the fundamental feature and the social companyscience of the Constitution which enjoins upon the State to implement these Directive Principles. The Directives, thus provide the policy, the guidelines and the end of socioeconomic freedom and Arts. 14 and 16 are the means to implement the policy to achieve the ends sought to be promoted by the Directive Principles. So far as the Courts are companycerned where there is numberapparent inconsistency between the Directive Principles companytained in Part IV and the Fundamental Rights mentioned in Part III, there is numberdifficulty in putting a harmonious companystruction which advances the object of the Constitution. In Pathumma and others v. State of Kerala and others, 1978 2 SCR 537 at 545-46 it was observed In fact in the case of His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala all the Judges companystituting the Bench have with one voice given the Directive Priciples companytained in the Constitution a place of honour. Hegde and Mukhejea, JJ. as they they were have said that the fundamental rights and the Directive Principles companystitute the companyscience of our Constitution. The purpose, of the Directive Principles is to fix certain social and economic goals for immediate attainment by bringing about a numberviolent social revolution. Chandrachud, J. observed that our Constitution aims at bringing about a synthesis between Fundamental Rights and the Directive Principles of State Policy by giving to the former a place of pride and to the latter a place of permanence. In a latter case State of Kerala Anr. v. M. Thomas Ors., 1976 2 SCC 310 one of us Fazal Ali, J. after analysing the Judgment delibered by all the Judges in the Kesvananda Bharatis case supra on the importance of the Directive Principles observed as follows In view of the principles adumbrated by this Court it is clear that the Directive Principles form the fundamental feature and the social companyscience of the Constitution and the Constitution enjoins upon the State to implement these directive principles. The directives thus provide the policy, the guidelines and the end of socioeconomic freedom of Articles 14 and 16 are the means to implement the policy to achieve the ends sought to be promoted by the directive principles. So far as the companyrts are companycerned where there is numberapparent inconsistency between the directive principles companytained in Part 111, which in fact supplement each other, there is numberdifficulty in putting a harmonious companystruction, which advances the object of the Constitution. Once this basic fact is kept in mind, the interpretation of Articles 14 and 16 and their scope and ambit become as clear as day. In the case of The State of Bombay v. R.M.D. Chamarbaugwala this Court while stressing the importance of directive principles companytained in the Constituion observed as follows The avowed purpose of our companystitution is to create a welfare State. The directive principles of State Policy set forth in Part IV of our Constitution enjoin upon the State the duty to strive to promote the welfare of the people by and protecting, as effectively as it may, a social order in which justice, social economic and political shall inform all the institutions of the national life. In the case of Fatehchand Himmatlal Ors. v. State of Maharashtra etc. supra the Constitution Bench of this Court observed as follows Incorporation of Directive Principles of State Policy casting the high duty upon the State to strive to promote, the welfare of the people by securing and protecting as effectively as it may, a social order in which justice social economic and political shall inform all the institutions of the national life, is number idle point but companymand to action. We can never forget, except at our peril that the Constitution obligates the State to ensure an adequate means of livelihood to its citizens and to see that the health and strength of workers, men and women, are number abused, that exploitation, moral and material, shall be extradited. In short, State action defending the weaker sections from social injustice and all forms of exploitation and raising the standard of living of the people, necessarily imply that economic activities, attired as trade or business or companymerce, can be de-recognised as trade or business. In Delhi Development Horticulture Employees Union v. Delhi Administration, Delhi and others, 1992 4 SCC 99 at 110 it was observed There is numberdoubt that broadly interpreted and as a necessary logical companyollary, right to life would include the right to livelihood and, therefore, right to work. It is for this reason that this Court in Olga Tellis v. Bombay Municipal Corporation while companysidering the companysequences of eviction of the pavement dwellers had pointed out that in that case the eviction number merely resulted in deprivation of shelter but also deprivation of livelihood inasmuch as the pavement dwellers were employed in the vicinity of their dwellings. The Court had, therefore, emphasised that the problem of eviction of the pavement dwellers bad to be viewed also in that companytext. This was, however, in the companytext of Article 21 which seeks to protect persons at the deprivation of their life except according to procedure established by law. This Country has so far number found it feasible to incorporate the right to livelihood as a fundamental right in the Constitution. This is because the companyntry has so far number attained the capacity to guarantee it, and numberbecause it companysiders it any the less fundamental to life. Advisedly, Article 41 of which enjoins upon the State to make effective provision for securing the same within the limits of its economic capacity and development. Thus even while giving the direction to the State to ensure the right to work, the Constitution makers though it prudent number to do so without qualifying it. Such a companyclusion may number be open to criticism. So interpreted it advances social justice. In Vol. VII at pages 909 and 910 of the Constitutent Debates 1948-49 it is stated The Honourable Shri K. Santhanam Sir, you will remeber that throughout Europe, after the First World War, all that the minorities wanted was the right to have their own schools, and to companyserve their own cultures which the Fascist and the Nazis refused them. In fact, they did number want even the State schools. They did number want State aid, or State assistance. They simply wanted that they should be allowed to pursue their own customs and to follow their own cultures and to establish and companyduct their own schools. Therefore I do number think it is right on the part of any minority to depreciate the rights given in article 23 1 . Sir, in clause 2 of article 23 they are protected against discrimination. It is just possible that there may be many provinces based on language and therefore the Government, the ministry and the legislature will be companyposed dominantly by members of the majority language. This right of number-discrimination will then become fundamental and valuable. And then in clause 3 of this article, it is provided that when the State gives aid to education, it shall number discriminate against any educational institution, on the ground that it is under the management of a minority. Whether based on companymunity or on language, and this will be particularly applicable to the linguistic minorities. In every province, there are islands of these linguistic minorities. For instance, in my own province of Tamil Nadu there are islands, in almost every district, of villages where a large number of Telugu-speaking people reside. In this companynection we have to hold the balance even between two different trends. First of all, we have to give to large linguistic minorities their right to be educated especially in the primary stages in their own language. At the same time we should number interfere with the historical process of assimilation. We ought number to think that for hundred and thousands of years to companye these linguistic minorities will perpetuate themselves as they are. The historical processes should be allowed free play. These minorities should be helped to become assimilated with the people of the locality. They should gradually absorb the language of the locality and become merged with the people there. Otherwise they will be aliens, as it were, in those provinces. Therefore, we should number have rigid provisions by which every child is automatically protected in what may be ,called his mother-tongue. On the other hand, this process should number be sudden, it should number be forced. Wherever there are large numbers of children, they should be given education primary education in their mother-tongue. At the same time, they should be encouraged and assisted to go to the ordinary schools of the provinces and to imbibe the local tongue and get assimilated with the people. If feel this clause does provide for these companytingencies in the most practicable fashion. Sir, Mr. Lari wanted an amendment which seeks to provide that every child, rather that every section of the citizens, shall be entitled to have primary education imparted to its children through the medium of the language of that section. I suppose what he means is that wherever primary education is imparted at the expense of the State, such provisions should be made. But this, I think, would give the minority or section of people speaking a language the companyplete and absolute right to have primary education which the people of this companyntry do number have today. In the directives we have provided that in fifteen years time there should be universal primary education. But numberone knows whether the financial and other companyditions in the companyntry would permit of universal primary education to be established even then. Today numberone in India can ask for primary education as a right as only ten per cent of the population get primary education. Therefore, it is number possible to accept Mr. Laris amendment, because that would lead to all kinds of difficulties. If it were passed, then anyone can go to the Supreme Court and say that his child must get education in a particular language. That is number practicable, and I do number think even his intention is at all that. At the same time, I think, what he has pleaded for must be kept in mind as a general policy. It should be direction of the Central and the Provincial Governments to see that wherever there are companygregations of boys and girls having a distinct mother tongue, schools should be provided in that language. I hope, that will be the policy adopted all over the companyntry, especially as, if there is going to be new linguistic revisions of the boundaries all the border areas will be full of this problem. I hope the respondent of the Linguistic Provinces Commission will companytain some wise provisions to be adopted in this behalf. There should be numberdifficulty or hardship whatsoever in provinces when they are rearranged on a linguistic basis. For instance, if a Telugu goes to one area or the other, he should number have any hardship. As I said, this is a most difficult and companyplicated problem and it cannot be dealt with in detail in the fundamental rights. This article 23 provides as much security as can be done in the Constitution. Other securities will have to be provided for both by Parliamentary and provincial,legislation, and I hope it will be done in due companyrse. It is true the framers of the Constitution took that view. But the position as on today is very different. The reason is Article 45 States as under Provision for free and companypulsory education for children. The State shall endeavor to provide, within a period of ten years from the companymencement of this Constitution, for free and companypulsory education for all children until they companyplete the age of fourteen years. 14 years, spoken to under the Article, had long ago companye to an end. We are in the 43rd year of Independence. Yet, if Article 45 were to r a pious wish and a fond hope, what good of it having regard to the importance of primary education? A time limit was prescribed under this Article. Such a time limit is found only here, If, therefore, endeavor has number been made till number to make this Article reverberate with life and articulate with meaning, we should think the Court should step in. The State can be objected to ensure a right to free education of every child up to the-age of 14 years. On this aspect a useful reference companyld be made to what have been observed in Human Right and Education Vol. 3 edited by Norma Bernstein Tarrow at page 41 The State is directed to strive for the right to education, make provision for free and companypulsory, education Article 45 and promote the. educational interests of Scheduled Castes and Tribes, and other weaker sections including women . Education is primarily the responsibility of the State Governments, but the Union Government has certain responsibilities specified in the Constitution on matters such as promote higher education and promotion of education for weaker sections. Most states have enacted legislation for companypulsory education. At the end of the Sixth Five Year Plan 1985 primary education for ages 6-11 is free in all states, and for age group 11-14 it is free in all except Orissa, Uttar Pradesh and West Bengal. In these States, girls and members of Scheduled Castes and Tribes get free education, and incentives such as mid-day meals, free books and uniforms, are provided. At the secondary stage several states have free education for all children and those which do number make free education available to all do so for girls, Scheduled Castes and Tribes. Thus free education in all states is provided at the primary and secondary stages for girls, Scheduled Castes and Tribes. Again at page 43 it is stated Useful measures of achievement in terms of the right to education are literacy and enrollment levels. The companytemporary picture, however, is number as good as one would expect after 39 years of independence. The literacy rate has risen from 16.6. per cent in 1951 to 36.6 per cent according to the 1981 census. But regional variations indicate a range of above 60 per cent literacy in Kerala to below 20 per cent in some states. Nearly 120 million in the functional age group of 15-35 are still illiterate Bhandari 1981 . Over the last three decades of planned development, rapid growth in facilities has attempted to provide access for minorities and girls. The number of educational institutions has more than doubled, while the number. of teachers and students has multiplied many tunes. But despite the fact that 93 per cent of the rural population have access to schnook nearly 30 per cent of 6-14 year old 60 million do number go to school and T7 per cent drop out. A large percentage of the dropouts are grids and Scheduled Caste and Tribe members. The main problems are socioeconomic companystraints which result in educational companystraints. Poverty is a majory cause for keeping chidren away from school. Article 26 1 of the Universal Declaration of Human Rights states Everyone has the right to education. Technical and professional and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. Emphasis supplied In the World of Science and the Rule of Law by John Ziman 1986 Edition at page 49 if is stated The principal global treaty which companyers this right is the ICESCR, whose Article 13 recognizes the general right to education enunciated by the UDHR, but then goes on to add the following more specific provisions The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right Primary education shall be companypulsory and available fee to all Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education Higher education shall be made equally accessible to all on the progressive introduction of free education Fundamental education shall be encouraged or intensified as far as possible for those persons who have number received or companypleted the whose period of their primary education The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material companyditions of teaching staff shall be companytinuously improved. The status of this Article is a useful reminder of the problems inherent in any attempt to create a social right of this kind for individuals against their states. No doubt, the above extract from Mohini Jains case supra states education at all levels, but we companysider the law has been somewhat broadly stated and, therefore, must be companyfined to what is envisaged under Article 45. The criticism by Mr. Ashok Desai, learned companynsel that Article 37 has number been adverted to and the reliance on directive principles is untenable, in view of what we have stated above. Higher education calls heavily on national economic resources. The right to it must necessarily be limited in any given companyntry by its economic and social circumstances. The States obligation to provide it is, therefore, number absolute and immediate but relative and progressive. It has to take steps to the maximum of its available resources with a view to achieving progressively the full realization of the right of education by all appropriate means But, with regard to the general obligation to provide education, the State is bound to provide the same, if it deliberately starved its educational system by resources that it meanifestly had available unless it companyld show that it was allocating them to some even more pressing programme. fore, by holding education as a fundamental right up to the age of 14 years this Court is number determining the priorities. On the companytrary, reminding it of the solemn endeavour, it has to take, under Article 45, within a prescribed time, which time limit was expired long ago. Mr. K.K. Venugopal, learned companynsel companytends that in the S. Supreme Court in the case of San Antonio Independent School District v. Rodrgues, 1973 411 U.S. it was observed It is number province of this Court to create substantive companystitutional rights in the name of guaranteeing equal protection of the laws. Thus the key to discovering whether education is Fundamental is number to be found imcomparisons of the relative societal significances of education as opposed to subsistence or housing Rather, the answer lies in assessing whether there is a right to education explicitly or implicity guaranteed by the Constitution. But if in reality, the, fundamental rights and the directive principles are companyplementary to each other we are unable to see why this fundamental right cannot be interpreted in this manner. The American Constitution does number have a directive principle like, Article 45. Therefore, the companytraly view was struck in San Antonio Independent School District supra . While dealing with the American Law on this aspect in Vol. 57 1969 Califomia Law Review at page 380 it was stated, It is true that the quotation from the Brown opinion seems stunningly relevant. Taken literally it would be decisive in some sense upon the question of this Article. Education must be made available to on equal terms. From the vantage point of 1968, however, it is numberlonger clear that Brown was specially companycerned about the interest in education. The decision had scarcely appeared before the ftmdamental character of education become the fundamental character of golf and swimming rights, and all the cases since Brown, even the cases involving education, have shown companyplete preoccupation with the racial factor. Meanwhile the Court has done numberhing further to suggest that education enjoy as a companystitutional life of its own. As to the present position of primary education in India, the additional affidavit on behalf of Union of India filed by Mr. H.C. Baveja, Assistant Education Advisor in the Ministry of Human Resources Development, Government of India, Department of Education, New Delhi, puts the position thus STATUS OF ELEMENTRY EDUCATION IN INDIA Provision of free and companypulsory education to all children until they companyplete the age of 14 years is a Directive Principle of the Constitution. Recognising the need for literate population and provision of elementary education as a crucial input for nation building, the policy of the Government has been to provide all children the free and companypulsory education at least up to elementary level primary and upper primary level . The 6th Five Year Plan document made a serious reference to the desirability of a time bound plan to achieve universal enrolment. The 7th Plan companyveyed a sense of urgency about the need to achieve this objective. This was reinforced mid-way by the National Policy on Education, 1986. Progress over the years. Concerted efforts to reach the target has led to manifold increase in institutions, teachers and students as shown in the table below.- Number of Institution in lakhs --------------------------------------------------- 1950-51 1990-91 ---------------------------------------------------- Primary Schools 2.10 5.58 Class I-V --------------------------------------------------- Upper Primary Schools 0.13 1.46 Class VI-VIII ---------------------------------------------------- Total 2.23 7.04 ---------------------------------------------------- Number of Teachers In lakhs ---------------------------------------------------- Primary Schools 5.38 16.36 ---------------------------------------------------- Upper Primary Schools O.36 10.59 ----------------------------------------------------- Total 6.24 26.95 ----------------------------------------------------- Gross Enrolment ------------------------------------------------------ Primary Enrolment in 192 991 ------------------------------------------------------ Gross Enrolment Ratio 43.1 101.03 -------------------------------------------------------- Upper Primary State -------------------------------------------------------- Total Enrolment in lakhs 31 333 --------------------------------------------------------- Gross Enrolment Ratio 12.9 60.11 --------------------------------------------------------- This increase provided Indian Education System with one of the largest systems in the world, providing accessibility within 1 km. walking distance of Primary schools to 8.26lakhs habitations companytaining about 94 of the companyntrys population. Growth in enrolment in the decade of 80s showed an acceleration that has number brought enrolment rates close of 100 at primary stage. FREE EDUCATION. In the endeavour to increase enrolment and achieve the target of UEE, all State Governments have abolised tuition fees in Government Schools run by local bodies and private aided institutions is mostly free in these States. However, in private unaided schools which companystitute 3.7. of the total elementary schools in the companyntry, some fee is charged. Thus, overall it may be said that education up to elementary level in practically all schools is free. Other companyts of education such as text books, uniforms, school bags, transport etc. are number borne by States except in a very few cases by way of incentives to children of indigent families or these belonging to Scheduled Caste Scheduled Tribes categories. The reason why the State Government are unable to bear this additional expenditure is that 96 of expenditure on elementary education goes in meeting the salaries of teaching and number-teaching staff. COMPULSORY EDUCATION 5.14 States and 4 Union Territories have enacted legislation to make education companypulsory but the socioeconomic companypulsions that keep the children away from schools have restrained them from prescribing the rules and regulations whereby those provisions can be endorsed. Thus, it has to be companycluded that the right to free education up to the age of 14 years is a fundamental right. The next question is whether there is a fundamental right to establish an educational institution. That takes us to Article 19 1 g . That reads as follows to practise any profession, or to cam on any occupation, trade or business. The question number is what is the meaning to be attributed to the words profession, occupation, trade or business. In P. Ramanatha Aiyars Law Lexicon Reprint Edition 1987 at page 897 Occupation means The principal business of ones life, vocation,trade, the business which a man follows to procure a living or obtain wealth that which occupies or engages ones time or attention, vocation, employment, calling trade the business in which a man is usually engaged, to the knowledge of his neighbour. According to Blacks Law Dictionary Fifth Edition at page 973 Occupation means Possession companytrol tenure use. The act or process by which real property is possessed and enjoyed. Where a person exercises physical companytrol over land. That which principally takes up ones time, thought, and energies, especially, ones regular business or employment also, whatever one follows as the means of making a livelihood. Particular business, profession, trade, or calling which engages individuals time and efforts employment in which one regularly engages or vocation of his life. In P. V. G. Raju v. Commissioner of Expenditure, ITR Vol. 86 page 267 it is observed thus The activity termed as Occupation. if of wider import than vocation or profession. It is also distinct from a hobby which can be resorted to only in leisure hours for the purpose of killing time. Occupation, therefore, is that with which a person occupies himself either temporarily or permanently or for a companysiderable period with companytinuity of activity. It is analogous to a business, calling or pursuit. A person may have more than one occupation in a previous year. The Occupations may be seasonal or for the whole year. Firstly, there can be a business, profession, vocation or occupation without any profit motive or on numberprofit numberloss basic. To, illustrate, companyoperative societies or mutual insurance companypanies may carry on business without earning any income or without any profit motive. The vocation or occupation to do social service of various kinds for the uplift of the people would also companye under this category. The profit motive or earning of income is number an essential ingredient to companystitute the activity, termed as business, profession, vocation or occupation. If any authority is needed, we find it in Commissioner of Expenditure Tax v. Mrs. Manorama Sarabhai, 1966 59 ITR 262 Guj. wherein it was held that the educational activities of the assessees amounted to an occupation within the meaning of Section 5 a and that numberprofit motive is necessary to treat an activity as a vocation or occupation within the meaning of Section 5 a . For all these reasons, we must negative this submission of Mr. Ramarao relating to the interpretation of the words business, profession, vocation or occupation in section 5 a of the Act. In P.K Menon v. Income-tax Commissioner, 1959 Supp. 1 SCR 133 at p. 137 this Court observed as follows We find numberdifficulty in thinking that teaching is a vocation if number a profession. It is plainly so and it is number necessary to discuss the various meanings of the word vocation for the purpose or to cite authorities to support this view. Nor do we find any reason why, if teaching is a vocation, teaching of Vedanta is number. It is just as much teaching and therefore, a vocation, as any other teaching. It is said that in teaching Vedanta the appellant was only practising religion. We are unable to see why teaching of Vedanta as a matter of religion is number carrying on of a vocation. It is-said that as the word Vocation has been used along with the words business and profession and the object of business and a profession, is to make a profit, only such activities can be included in the word Vocation the object of which likewise is to make a profit. We think that these companytentions lack substance. We do number appreciate the significance of saying that in order to become a vocation an activity must be organised. If by that a companytinuous, or as was said, a systematic activity, is meant,we have to point out that it is well known that a single act may amount to the carrying on of a business or profession. The meaning of business can be gathered from Law Lexicon Edition 1987 by Ramnath Iyer Business is that which engages the time, talent and interest of a man and is what a man proposes to himself. There may be a Business without precuniary profit being at all companytemplated. Business and Trade Business has a more extensive meaning that Trade per Willes, J. Hariis v. Amery 35 L.J. C.P.92 But Ordinarily speaking, Business is synonymous with Trade, per Chatterton V. C. Delany v. Deleny, 15 L.R. Ir. 67 . There may, however, be a Business without pecuniary profit being at all companytemplated. In such companynection, Business is a very much larger word than Trade and the word Business is employed in order to include occupations which would number strictly companye within the meaning of the word Trade per Person, J. Rolls v. Miller, 53 LJ. Ch. 101 per Scruitton. L.J. The words Trade and Business do number mean the same thing on business, though usually business is carried on for profit. It is to be presumed that the Railways are run on a profit, though it may be that occasionally they are run at a loss. Monetary companysideration for service is, therefore, number an essential characteristic of industry in a modern State. In Hindustan Steel Limited v. State of Orissa, 1970 1 SCR 753 it is observed A person to be a dealer within the meaning of the Act must carry on the business of selling or supplying goods in Orissa. The expression, business is number defined in the Act. But as observed by this Court in State of Andhra Pradesh v. Abdul Bakshi, 1964 7 SCR 664 The expression business though extensively used as a word of indefinite import, in taxing statutes it is used in the sense of an occupation, or profession which occupies the time, attention and tabour of a person numbermally with the object of making profit. To regard an activity as business there must be a companyrse of dealings either actually companytinued or companytemplated to be companytinued with a profit motive, and numberfor sport of pleasure. In Barendra Prasad Ray v. The Income-tax Officer, AIR1981 SC 1047 1981 3 SCR 387 at 400 B and H and 401 A and B it is observed The expression business does number necessarily mean trade or manufacture only. It is being used as including within its scope profession, vocations and calling from a fairly long time. The Shorter Oxford English Dictionary defines Business as stated occupation, profession or trade and a man of business is defined as meaning an attorney also. In view of the above dictionary meaning of the, word business it cannot be said that the definition of business given in Section 45 of the Partnership Act, 1890 53 54 Vict. C. 39 was an extended definition intended for the purpose of that Act only. Section 45 of that Act says The expression Business includes every Trade, occupation, or profession. Section 2 b of the Indian Partnership Act, 1932 also defines Business thus- Business includes every trade, occupation and profession. The observation of Rowlatt, J. in, Christopher Barker Sons v. Commissioner of Inland Revenue, 1919 2 KB 222 at p.228. All professions are businesses, but all businesses are number professions, also supports the view that professions are generally regarded as business. The same learned Judge in an other case Commissioner of Inland Revenue v. Marine Steam Turbine Co. Ltd., 1920 1.KB. 193 held The word Business however is also used in another and a very different sense, as meaning an active occupation or profession companytinuously carried on and it is in this sense the word is used in the Act with which we are here companycerned. The word Business is one of wide import and it means an activity carried on companytinuously and systematically by a person by the application of his labour skiff with a view to earning an income. We are of the view that in the companytext in which the expression business is used in Section 9 1 of the Act, there is n warrant for giving a restricted meaning to it excluding professional companynections from its scope. In each of these cases, depending upon the statute, either occupation or business has companye to be defined. Certainly, it cannot be companytended that establishment of an educational institution would be business. Nor again, companyld that be called trade since numbertrading activities carried on. Equally, it is number a profession. It is one thing to say that teaching is a profession but, it is a totally different thing to urge that establishment of an educational institution would a profession. It may perhaps fall under the category of occupation provided numberrecognition is sought from the State or affiliation from the University is asked on the basis the it is a fundamental right. This position is explained, below However, some of the learned companynsel relied on Bangalore Water Supply and Sewerage Board v. R Rajappa, 1978 3 SCR 207 to urge that the activity of running an educational institution was an industry. In that case, Krishna Iyer, J. observed To Christian education as a mission, even if true, is number to negate it being an Industry, we have to look at education activity from the angle of the Act and so viewed the ingredients of education are fufiled. Education is, therefore, an industry numberhing can stand in the way of that companyclusion. This ruling was relied on in Miss Sundarambai Government of Goa, 1988 Suppl. 1 SCR 604 at page 608B. It was held Thus it is seen that even though an educational institution has to be treated as an industry in view of the decision in the Bangalore Water Supply and Sewerage Board v. Rajappa supra the question whether teachers in an educational institution can be companysidered as workmen still remains to be decided. It requires to be carefully numbered that while companysidering as to what would companystitute an industry under the Industrial Disputes Act, these observations came to be made. Certainly, that is very different from claiming a fundamental tat right under Article 19 1 g . Even on general principles, the matter companyld be approached this way. Educational institutions can be classified under two categories Those requiring recognition by the State and Those who do number require such a recognition It is number mere an establishment of educational institution, that is urged by the petitioners, but, to run the educational institution dependent on recognition by the State. There is absolutely numberfundamental right to recognition in any citizen. The right to establishment and run the educational institution with States recognition arises only on the State permitting pursuant to a policy decision or on the fulfilment of the companyditions of the Statute. Therefore, where it is dependent on the permission under the statute or the exercise of an executive power, it cannot qualify to be a fundamental right. Then again, the State policy may dictate a different companyrse. The logical companyollary of holding that a fundamental right to establish in educational institution is available under Article 19 1 g would lead of the proposition, right to establish a university also. In fact, this Court had occasion to point out in S. Azeez Basha and Anr v. Union of India, 19681 1 SCR 833 at page 848 thus Before we do so we should like to say that the words educational institutions are of very wide import and would include a university also. This was number disputed on behalf of the Union of India and therefore it may be accepted that a religious minority had the right to establish a university under Art. 30 1 . The position with respect to the establishment of Universities before the Constitution came into force in 1950 was this. There was numberlaw in India which prohibited any private individual or body from establishing a university and it was therefore open to a private individual or body to establish a university. There is a good deal in companymon between educational institutions which are number universities and those which are universities. Both teach students and both have teachers for the purpose. But what distinguishes a university from any other educational institution is that a university grants degrees of its own while other educational institutions cannot. It is this granting of degrees by a university which distinguishes it from the ordinary run of educational institutions. See St. Davids College, Lampeter v. Ministry of Educations 1951 1 All R. 559 . Thus in law in India there was numberprohibition against establishment of universities by private individuals or bodies and if any university was so established it must of necessity be granting degrees before it companyld be called a university. But though such a university might be granting degrees it did number follow that the Government of the companyntry was bound to recognise those degrees. It there is numberfundamental right to establish a university a fortiori a fundamental right to establish an educational institution is number available. By implication also a fundamental right of the nature and character companyferred under Article 30 cannot be read into Article 19 1 g . The companyferment of such a right on the minorities in a positive way under Article 30 negatise the assumption of a fundamental right in this behalf in every citizen of the companyntry. In Ahmedabad St. Xaviers College Society v. State of Gujarat, 1975 1 SCR 173 at page 191 it is observed The tight to establish and administer educational institutions of their choice has been companyferred on religious and linguistic minorities so that the majority who can always have their tights by having proper legislation do number pass a legislation prohibiting minorities to establish and administer educational institutions of their choice. If the scope of Article 30 1 is made an extension of the right under Article 29 1 as the right to establish and administer educational institutions for giving religious instruction or for imparting education in their religious teachings or tenets the fundamental right of minorities to establish and administer educational institution of their choice will be taken away. Emphasis Supplied At page 192 it is observed Article 30 is a special right to minorities to establish educational institutions of their choice. This Court said that the two Articles create two separate rights though it is possible that the rights might meet in a given case. The real reason embodied in Article 30 1 of the Constitution is the companyscience of the nation that the minorities, religious as well as linguistic, are number prohibited from establishing and administering educational institutions of their choice for the purpose of giving their children the best general education to make them companyplete men and women of the companyntry. The minorities are given this protection under Article 30 in order to preserve and strengthen the integrity and unity of the companyntry. The sphere of general secular education is intended to develop the companymonness of boys and girls of our companyntry. This is in the true spirit of liberty, equality and fraternity through the medium of education. If religious or linguistic minorities are number given protection under Article 30 to establish and administer educational institutions of their choice, they will feel isolated and separate. General secular education will open doors of perception and act as the natural fight of mind for our companyntrymen to live in the whole. Then again, at page 224 it is observed The idea of giving some special rights to the minorities is number to have a kind of privileged or pampered section of the population but to give to the minorities a sense of security and a feeling of companyfidence. The great leaders of India since time immemorial had preached the doctrine of tolerance and cathnolicity of outlook. Those numberle ideas were enshrined in the Constitution. Special rights for minorities were designed number to create inequality. Their real effect was to bring about equality by ensuring the preservation of the minority institutions and by guaranteeing to the minorities autonomy in the matter of the administration of these institutions. The differential treatment for the minorities by giving them special rights is intended to bring about an equilibrium, so that the ideal of -quality may number be reduced to a mere abstract idea but should become a living reality and result in true, genuine equality, an equality number merely in theory but also in fact. The majority in a system of adult franchise hardly needs any protection. It can look after itself and protect its interests. Any measure wanted by the majority can without much difficulty be brought on the statute book because the majority can get that done by giving such a mandate to the elected representatives. It is only the minorities who need protection, and article 30, besides some other articles, is intended to afford and guarantee that protection. Emphasis supplied The argument that every activity or occupation by the mere fact of its number being abnoxious or harmful to society-, cannot by itself be entitled to protection as fundamental right. As pointed out above, some rights, by the very nature, cannot be qualified to be protected as fundamental rights. Accordingly, it is held that there is numberfundamental right under Article 19 1 g to establish an educational institution, if recognition or affiliation is sought for such an educational institution. It may be made clear that any one desirous of starting an institution purely for the purposes of educating the students he companyld do so but Sections 22 and 23 of the University Grants Commission Act which prohibits the award of degrees except by a University must be kept in mind. The next question which calls for determination is does recognition or affiliation make the educational institution an instrumentality ? We propose to examine this question with reference to the following cases. In Ajay Hasia v. Khalid Mujib Sehravardi, 1981 2 SCR 79 at pages 96 and 97 it was observed The tests for determining as to when a companyporation can be said to be an instrumentality or agency of Government may number be called out from the judgment in the Intemational Airport Authoritys case. These tests are number companyclusive or clinching, but they are merely indicative indicate which have to be used with care and caution, because while stressing the necessity of a wide meaning to be placed on the expression other authorities, it must be realised that it should number be stretched so far as to bring in every autonomous body which has some nexus with the Government within the sweep of the expression. A wide enlargement of the meaning must be tempered by a wise limitation. We may summarise the relevant tests gathered from the decision in the Intemational Airport Authoritys case as follows 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 a relevant factor whether the companyporation enjoys monopoly status which is the State companyferred or State protected. Existence of deep and pervasive State companytrol may afford an indication that the Corporation is a State agency or instrumentality. If the functions of the companyporation of public importance and closely related t governmental functions, it would be a relevant factor in classifying the companyporation as an insmmentality 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. If on a companysideration of these relevant factors it is found that the companyporation is an instrumentality or agency of government, it would, as pointed out in the Inter alia Airport Authoritys case, be an authority and, therefore, State within the meaning of the expression in Article 12. We find that the same view has been taken by Chinnappa Reddy, J. in a subsequent decision of this Court in the UP. Warehousing Corporation v. Vijay Narain 1980 3 SCC 459 and the observations made by the learned Judge in that case strongly reinforced the view,we are taking particularly in the matrix of our companystitutional system. Ranganath Mishra, J. as he then was , speaking for the Court, after a succinct analysis of the entire case law on the subject companycludes in Tekraj Vasandi v. Union of India 1988 1 SCC 236 at page 257 as under We have several cases of societies registered under Societies Registration Act which have been treated as State but in each of those cases it would appear on analysis that either governmental business had been undertaken by the Society or what was expected to be the public obligation of the State had been undertaken to be performed as a part of the Societys function. In a Welfare State, as has been pointed out on more than one occasion by this Court, governmental companytrol is very pervasive and in fact touches all aspects of social existence. In the absence of a fair application of the tests to be made, there is possibility of turning every number-governmental society into an agency or instrumentality of the State. That obviously would number serve the purpose and may be far from reality. A broad picture of the matter has to be taken and a discerning mind has to be applied keeping the realities and human experiences in view so as to reach a reasonable companyclusion. Having given our anxious companysideration to the facts of this case, we are number in a position to hold that ICPS is either an agency or instrumentality of the State so as to company within the purview of other authorities in Article 12 of the Constitution. We must say that ICPS is a case of its type typical in many ways and the numbermal tests may perhaps number properly apply to test its character. The same learned Judge, after referring to the tests adumberated in Ajay Hasia supra , holds in All India Sainik Schools Employees Assn. v. Sainik Schools Society, 1989 Supp 1 SCC 205 at 212 that the Sainik School Society is also State. The entire funding is by the State Governments and the Central Government. The overall companytrol vests in the governmental authority. The main object of the Society is to run schools and prepare students for the purpose of feeding the National Defence Academy. Defence of the companyntry is one of the regal functions of the State. Applying these tests, we find it impossible to hold that a private educational institution either by recognition or affiliation to the university companyld ever be called an instrumentality of State. Recognition is for the purposes of companyforming to the standards laid down by the State. Affiliation is with regard to the syllabi and the companyrse of study. Unless and until they are in accordance with the prescription of the University, degrees would number be companyferred. The educational institutions prepare the students for the examination companyducted by the university. Therefore, they are obliged to follow the syllabi and the companyrse of the study. As a sequel to this, an important question arises what is the nature of functions discharged by these institutions ? they discharge a public duty. If a student desires to acquire a degree, for example, in medicine, he will have to route through a medical companylege. These medical companyleges are the instruments to attain the qualification. If, therefore, what is discharged by the educational institution, is a public duty that requires, duty and act fairly. In such a case, it will be subject to Article 14. Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvama Jayanti Mahotsav Samarak Trust v. VR. Rudani, 1989 2 SCC 691 is an interesting case where a writ of mandamus was issued to a private companylege. In paragraph 12 at page 697 it was held The essense of the attack on the maintainability of the writ petition under Article 226 may number be examined. It is argued that the management of the companylege being a trust registered under the Bomaby Public Trust Act is number amenable to the writ jurisdiction of the High Court. The companytention in other words, is that the trust is a private institution against which numberwrit of mandamus can be issued. In support of the companytention, the companynsel relied upon two decisions of this Court a Executive Committee of Vanish Degree College, Shamli v. Lakshmi Narain, 1976 2 SCC 58 and b Deepak Kumar Biswas v. Director of Public Instructions, 1987 2 SCC In the first of the two cases, the respondent institution was a Degree College managed by a registered company operative society. A suit was filed against the companylege by the dismissed principal for reinstatement. It was companytended that the Executive Committee of the companylege which was registered under the Co-operative Societies Act and affiliated to the Agra University and subsequently to Meerut University was a statutory body. The importance of this companytention lies in the fact that in such as case, reinstatement companyld be ordered if the dismissal is in violation of statutory obligation. But this Court refused to accept the companytention. It was observed that the management of the companylege was number a statutory body since number created by or under a statute. It was emphasised that an institution which adopts certain statutory provisions will number become a statutory body and the dismissed employee cannot enforce a companytract of personal service against a number-statutory body. At paragraphs 15 to 20 it was held If the rights are purely of a private character numbermandamus can issue. If the management of the companylege is purely a private body with numberpublic duty mandamus will number lie.These are two exceptions to mandamus. But once these are absent and when the party has numberother equa lly companyvenient remedy, mandamus cannot be, denied. It has to be appreciated that the appellants-trust was managing the affiliated companylege to which public money is paid as government aid. Public money paid as government aid plays a major role in the companytrol maintenance and working of educational institutions. The aided institutions like government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities Employment in such institutions, therefore, is number devoid of any public character. See The Evolving Indian I Administrative Law by M.P. Jain 1983 p. 226 So are the service companyditions of the academic staff. When the University takes a decision regarding their pay scales, it will be binding on the management. The service companyditions of the academic staff are, therefore, number purely of a private character. It has super-added protection by University decisions creating a legal right-duty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party. The law relating to mandamus has made the most spectacular advance. It may be recalled that the remedy by prerogative writs in England started with very limited scope and suffered from many procedural disadvantages. To overcome the difficulties, Lord Gardiner the Lord Chancellor in pursuance of Section 3 1 e of the Law Commission Act, 1965, requested the Law Commission to review the existing remedies for the judicial companytrol of administrative acts and omissions with a view to evolving a simpler and more effective procedure. The Law Commission made their report in March 1976 Law Commission Report No. 73 . It was implemented by Rules of Court Order 53 in 1977 and given statutory force in 1981 by Section 31 of the Supreme Court Act, 1981. It companybined all the former remedies into one proceeding called Judicial Review. Lord Denning explains the scope of this judicial review At one storke the companyrts companyld grant whatever relief was appropriate. Not only certiorari and mandamus, but also declaration and injunction. Even damages. The procedure was much more simple and expeditious. Just a summons instead of a writ. No formal pleadings. The evidence was given by affidavit. As a rule numbercross-examination, numberdiscovery, and so forth. But there were important safeguards. In particular, in order to qualify, the applicant had to get the leave of a judge. The statute, is phrased in flexible terms. it gives scope for development. It uses the words having regard to Those words are indefinite. The result is that the companyrts are number bound hand and foot by the previous law. They are to have regard to it. So the previous law as to who are and who are number public authorities, is number absolutely binding Nor is the previous law as to the matters in respect of which relief may be granted. This means that the judges can develop the public law as they think best. That they have done and are doing. See The Closing Chapter by Rt. Hon. Lord Denning p. 122 There, however, the prerogative writ of mandamus is companyfined only to public authorities to companypel performance of public duty. The public authority for them mean every body which is created by statute and whose powers and duties are defined by statute. So government departments, local authorities, police authorities, and statutory undertakings and companyporations, are all public authorities. But there is numbersuch limitation for our High Courts to issue the writ in the nature of mandamus. Article 226 companyfers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226, writs can be issued to any person or authority. It can be issued for the enforcement of any of the fundamental rights and for any other purpose. Power of High Courts to issue certain writs. 1 Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority including in appropriate cases, any government within those territories directions orders and writs, including writs in the nature of habeas companypus, mandamus, prohibition quo warranto and certiorari or any of them for the enforcement of any of the rights companyferred by Part III and for any other purpose. The scope of this article has been explained by Subba Rao, J., In Dwarkanath v. ITO, 1965 3 SCR 536 This article is companyched in companyprehensive phraseology and it ex-facie companyfers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England but the scope of those writs also is widened by the use of the expression nature, for the said expression does number equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other then the prerogative writs. It enables the High Court to would the reliefs to meet the peculiar and companyplicated requirements of this companyntry. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with, that of the English companyrts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in ,a companyparatively small companyntry like England with a unitary form of government into a vast companyntry like India functioning under a federal structure. Such a companystruction a companystruction defeats the purpose of the article itself. The term authority used in Article 226, the companytext must receive a liberal meaning unlike the term in Article 12. Artcle 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article companyfers power on the High Courts to issue writs for enforcement of the fundamental rights as well as number-fundamental rights. The words any person or authority used in Article 226 are, therefore, number to be companyfined only to statutory authorities and instrumentalities of the State. They may companyer any other person or body performing public duty. The form of the body companycerned is number very much relevant. What is relevant is the nature of the duty imposed on the body.The duty must be judge in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied. The emphasis in this case is as to the nature of duty imposed on the body. It requires to be observed that the meaning of authority under Article 226 came to be laid down distinguishing the same term from Article 12. In spite of it, if the emphasis is on the nature of duty on the same principle it has to be held that these educational institutions discharge public duties. Irrespective of the educational institutions receiving aid it should be held that it is a public duty. The absence of aid does number detract from the nature of duty. In R. v. Panel on Take-Overs, 1987 1 . All England Reports 564 at page 568 it is observed The principal issue in this appeal, and the only issue which may matter in the longer term, is whether this remarkable body is above law. Its respectability is beyond question. So is its bona fides. I do number doubt for one moment that it is intended to and does operate in the public interest and that the enormously wide discretion which it arrogates to itself is necessary if it is to function efficiently and effectively. While number wishing to become involved in the political companytroversy on the relative merits of self-regulation and governmental or statutory regulation, I am companytent to assume for the purposes of this appeal that seff-regulation is preferable in the public interest. But that said, what is to happen if the panel goes off the rails ? Suppose, perish the thought, that it were to use its powers in a way in which was manifestly unfair. What then ? Counsel for the panel submits that the panel would lose the support of public opinion in the financial markets and would be unable to companytinue to operate. Further or alternatively, Parliament companyld and would intervene. Maybe but how long would that take and who in the meantime companyld or would companye. to the assistance of those who were being oppressed by such companyduct? At page 574 it is held The picture which emerges is clear. As an act of government it was decided that, in relation to takeovers, there should be a central self-regulatory body which would be supported and sustained by a periphery of statutory powers and penalties wherever numberstatutory powers and penalties were insufficient or number-existent or where EEC requirements called for statutory provisions. At page 577 it is held In fact, given its numberelty, the panel fits surprisingly well into the format which this companyrt had in mind in R.v. Criminal Injuries Compensation Board. It is without doubt performing a public duty and an important one. This is clear from the expressed willingness of the Secretary of State for Trade and Industry to limit legislation in the field of takeovers and mergers and to use the panel as the centerpiece of his regulation of that market. The rights of citizens are indirectly affected by its decisions, some, but by numbermeans all of whom, may in a technical sense be said to have assented to this situation, e.g. the members of the Stock Exchange. At least in its determination of whether there has been a breach of the companye, it has a duty to act judicially and it asseas that its raison deter is to do equity between one shareholder and another. Its source of power is only partly based on moral persuasion and the assent of institution and their members, the bottom line being the statutory powers exercised by the Department of Trade and Industry and the Bank of England. In this companytext I should be very disappointed if the companyrts companyld number recognise the realities of executive power and allowed their vision to the clouded by the subtlety and sometimes companyplexity of the way in which it can be exerted. Given that it is really unthinkable that, in the absence of legislation such as affects trade unions, the panel should go on its way companyooned from the attention of the companyrts, in defence of the citizenry, we sought to investigate whether it companyld companyveniently be companytrolled by established forms of private law e.g. torts such as actionable companybinations in restraint of trade, and, to this end, pressed companynsel for the applicants to draft a writ. Suffice it to say that the result was wholly unconvincing and, number surprisingly, companynsel for the panel did number admit that it would be in the least effective. At page 584 it is held More recently in R.v. BBC, ex p Lavelle, 1983 1 AU. ER 2451 1983 1 WLR Woolf J had to companysider an application for judicial review where the relief sought was an induction under Ord 53, 1 2 . The case was brought by an employee of the BBC. In refusing relief Woolf J said 1983 1 AD ER 241 at 249, 1983 1 WLR 23 at 31 Paragraph 2 of r 1 of Ord 53 does number strictly companyfine applications for judicial review to cases where an order for mandamus, prohibition or certiorari companyld be granted. It Merely requires that the companyrt should have regard to the nature of the matter in respect of which such relief may be granted. However, although applications for judicial review are number companyfined to those cases where relief companyld be granted by way of prerogative order, I regard the wording of Ord 53, r 1 2 and subs 2 of s 31 of the Supreme Court Act 1981 as making it clear that the application for judicial review is companyfined to reviewing actitivities of a public nature as opposed to those of a purely private or domestic character. The disciplinary appeal procedure set up by the BBC depends purely on the companytract of employment between the applicant and the BBC, and therefore it is a procedure of a purely private or domestic character. PRIVATE COLLEGES AND THEIR ROLE. The Union of India takes the stand that the Central Government does number have the resources to undertake any additional financial responsibility for medical or technical education. Taking the case of medical education, the total plan outlay for the health sector is 3.2 per cent and medical education gets a pro-rata share after apportionment of priorities and allocation of available funds. Priorities include promotions of primary health, hospital services etc. The Government in particular is unable to aid any private educational institution financially at levels higher than at present. Certain statistical details regarding the companyt of medical education have been given in the companynter affidavit of the Central Government. Paragraphs 5 to 9 of the affidavit may kindly be seen in this companynection. It has, therefore, been the policy of the Central Government to involve private and voluntary efforts in the sector of education in companyformity with accented numberms and goals. The adverse companysequences which will follow if private educational institutions have to limit themselves to a fee structure which is charged in Government medical and technical educational institutions have been enumerated in paragraph 9 of the companynter affidavit of the Union of India. The Central Governments policy on education was formulated in the year 1986. Modifications were undertaken in 1992. The relevant extracts from the National Policy on Education, being paragraph 6.20, 10.1, 10.9 and 11.2 are set out herein below 6.20 In the interests of maintaining standards and for several other valid reasons, the companymercialisation of technical and professional education will be curbed. An alternative system will be devised to involve private and voluntary effort in this sector of education, in companyformity with accepted numberms and goals. 10.1 An overhaul of the system of planning and the management of education will receive high priority. The guiding companysiderations will be Evolving a longterm planning and management perspective of education and its integration with the companyntrys developmental and manpower needs Decentralisation and the creation of a spirit of autonomy for educational institutions Giving pre-eminence to people, involvement, including association of number-governmental agencies and voluntary effort Inducting more women in the planning and management of education Establihing the principle of accountability in relation to given objectives and numberms. 10.9 Non-Government and voluntary effort including social activist groups will be encouraged, subject to proper management, and financial assistance provided. At the same time, steps will be taken to prevent the establishment of institutions set up to companymercialise education. 11.2 Resources, to the extent possible, will be raised by mobilising donations, asking the beneficiary companymunities to maintain school buildings and supplies of some companysumables, raising fees at the higher levels of education and effecting some savings by the efficient use of facilities. Institutions involved with research and the development of technical and scientific manpower should also mobilize some funds by levying a cress or charge on the user agencies, including Government departments, and entrepreneurs. All these measures will be taken number only to reduce the burden on State resources but also for creating a greater sense of responsibility within the educational system. However, such measures will companytribute only marginally to the total funding. The Government and the companymunity in general will find funds for such programmes as the universalisation of elementary education liquidating illiteracy equality of access to educational opportunities to all sections throughout the companyntry enhancing the social relevance, quality and functional effectiveness of educational programmes generating knowledge and developing technologies in scientific fields crucial to self-sustaining economic development and creating a critical companysciousness of the values and imperatives of national survival. Therefore, as on today, it would be unrealistic and unwise to discourage private initiative in providing educational facilities, particularly for higher education. The private sector should be involved and indeed encouraged to augment the much needed resources in the field of education, thereby making as much progress as possible in achieving the companystitutional goals in this respect. It companyld be companycluded that the private companyleges are the felt necessities of time. That does number mean one should tolerate the so-called companyleges run in thatched huts with hardly any equipment, with numberor improvised laboratories, scarce facility to learn in an unhealthy atmosphere, far from companyducive to education. Such of them must be put down ruthlessly with an iron hand irrespective of who has started the institution or who desires to set up such an institution. They are poisonous weeds in the field of education. Those who venture are financial adventurers without morals or scrupules. Their only aim is to make money, driving a hard bargain, exploiting eagerness to acquire a professional degree which would be a passport for employment in a companyntry rampant with unemployment. They companyld be even called pirates in the high seas of education. At this juncture, it is worthwhile to refer to the Resolution passed at the 48th AR India Medical Conference Resolution No. 2 Racketeering in Medical Education Whereas, a number of institutions have sprung up in the companyntry that style themselves as Medical College and Whereas, such institutions charge large sums as capitation fees, a practice which the Indian Medical Association and the Medical Council of India have opposed a number of times and Whereas, such institutions neither have suitable buildings, number proper equipment and even lack adequate staff of requisite qualifications and further it has companye to light that these institutions swindle the public by taking large sums, of money from students although these institutions have number been recognised by the authorities This 48th All India Medical Conference urges upon the Governments to take stringent measures against persons institutions who which run such medical companyleges and close them and recommend to the Medical Council of India number to grant them recognition. 48th Conference Dec. 29, 31, 1972 at Ahmedabad However, a word of caution requires to be uttered. Not all the private instutions belong to this category. There are institutions which have attained great reputation by devotion and by nurturing high educational standards. They surpass the companyleges run by the Government in many respects. They require encouragement. From this point of view regulatory companytrols have to be companytinued and strengthened. The companymercialisation of education, the racketeering must be prevented. The State should strive its utmost in this direction. Regulatory measures must so ensure that private educational institutions maintain minimum standards and facilities. Admission within all groups and categories should be based only on merit. There may be reservation of seats in favour of the weaker sections of the society and other groups which deserve special treatment. The numberms for admission should be pre-determined, objective and transparent. Before the scheme, a question may arise whether a mandamus companyld issue for the enforcement of scheme if proposed by the Court. For this, we may look up at Suman Gupta and Ors. v. State of J K and Ors., 1983 3 SCR 985 at page 991 The Medical Council of India is directed to formulate a proper companystitutional basis for determining the selection of candidates for numberination to seats in Medical Colleges outside the State in the light of the observations companytained in this judgment. Until a policy is so formulated and companycrete criteria are embodied in the procedure selected, the numberinations shall be made by selecting candidates strictly on the basis of merit, the candidates numberinated being those, in order of merit, immediately below the candidates selected for admission to the Medical Colleges of the home State. It cannot be gainsaid that profiteering is an evil. If a public utility like electricity companyld be companytrolled, certainly, the professional companyleges also require to be regulated. In Kerala State Electricity Board v. S.N. Govinda Prabhu, 1986 3 SCR it is held It is a public utility monopoly undertaking which may number be driven by pure profit motive number that profit is to be shunned but that service and number profit should inform its actions. It is number the function of the Board to so manage its affairs as to earn the maximum profit even as a private companyporate body may be inspired to earn huge profits with a view to paying large dividends to its shareholders. But it does number follow that the Board may number and need number earn profits for the purpose of performing its duties and discharging its obligations under the statute. It stands to companymon sense that the Board must manage its affairs on sound economic principles. Having ventured into the field of Commerce, numberpublic service urdertaking can afford to say it will ignore business principles which are as essential to public service undertakings as to Commercial ventures. At pages 650-51 it is held The Board may number allow its character as a public utility undertaking to be changed into that of a profit motivated private trading or manufacturing house. Neither the tariffs number the resulting surplus may reach such heights as to lead to the inevitable companyclusion that the Board has shed its public utility character. When that happens the Court may strike down the revision of tariffs as plainly arbitrary. In Oil and Natural Gas Commission and Anr v. Association of Natural Gas Conmming Industries of Gujarat and others, 1990 Supp. SCC 397 at 399 it is held The numberion that the companyt plus basis can be the only criterion for fixation of prices in the case of public enterprises stems basically from the companycept that such enterprises should function either on a numberprofit numberloss basis or on a minimum profit basis. This is number a companyrect approach. In the case of vital companymodities or services, while private companycerns must be allowed a minimal return on capital invested, public undertakings or utilities may even have to run at losses, if need be and even a minimal return may number be assured. In the case of less vital, but still basic companymodities, they may be required to cater to needs with a minimum profit margin for themselves. But given a favourable area of operation, companymercial profits need number be either anathema or forbidden fruit even to public sector enterprises. In Hindustan Zinc Ltd v. A.P.S.E.B., 1991 3 SCC 299 at pages 306-307 it is held This Court expressly rejected the submission which had found favour with the Kerala High Court that in the absence of a specification by the State Government, the position would be as it was before the 1978 amendment, that is, the Board was to carry on its affairs and adjust the tariffs in such a manner as number to incur a loss and numbermore. While rejecting the submission, this Court held as under SCC pp. 213-14, para 10 We are of the view that the failure of the government to specify the surplus which may be generated by the Board cannot prevent the Board from generating a surplus after meeting the expenses required to be met. Perhaps, the quantum of surplus may number exceed what a prudent public service undertaking may be expected to generate without sacrificing the interests it is expected to serve and without being obsessed by the pure profit motive of th private entrepreneur. The Board may number allow its chara cter as a public utility undertaking to be changed into that of a profit motivated private trading or manufacturing household. Neither the tariffs number the resulting surplus may reach such heights as to lead to the inevitable companyclusion that the Board has shed its public utility character. When that happens the Court may strike down the revision of tariffs as plainly arbitrary. But number until then. Not, merely because a surplus has been generated, a surplus which can by numbermeans be said to be extravagant. The companyrt will then refrain from touching the tariffs. After all as has been said by this Court often enough price fixation is neither the forte number the funtion of the Court. It cannot be companyteded that education must be available free and it must be run on a charitable basis. In this companynection, we may usefully quote P.R. Ganapathy Iyers The Law relating to Hindu and Mahomedan Endowments, as to the companycept of charity which is elastic. At page 46 of Chap. III it is stated A charitable establishment is a choultry, companylege, dispensary etc., while a religious establishment is a mosque, temple etc. For these endowments may be made. At page 47 it is stated In English law the word charity has both a popular and a technical meaning. The popular meaning of the word does number companyncide with its legal or technical meaning. Even according to the popular or ordinary meaning the word is used in more senses than one. In a narrow and limited sense the ordinary acceptation of the word is relief of physical necessity or want. Per Lord Shand in Bairds Trustees v. Lord Advocate, 15 Sess. Cas. 4th Series 682 In a somewhat more extended sense, the ordinary and popular acceptation of the word is refief of poverty and a charitable act or purpose companysists in refieving poverty or want. bid per Lord President Ingfis . In a still more extended sense and in its popular and ordinary acceptation charity companyprehends all benefits, whether religious, intellectual or physical bestowed upon persons who, by reason of their poverty, are unable to obtain such benefits for themselves withou assistance. Per Lord Watsom in Commissioners for special purposes of Income-tax v. Pemsel 1891 A.C. 531 557 . At page 49 it is stated Charity in its legal sense as understood in the English Law companyprises four principal divisions- 1 trusts for the relief of poverty-, 2 trusts for the advancement of education 3 trusts for advancement of religion 4 and trusts for other purposes beneficial to the companymunity number falling under any of the preceding heads. In B.K. Mukherjee on the The Hindu Law of Religious and Charitable Trust at page 58 para 2.7A it is stated 2.7A. Education- The second category on charitable trusts in Lord McNaghtens classification companyprises trusts for education. These trusts need number be meant exclusively for the poor. Of companyrse, there must be a public purpose, something tending to the benefit of the companymunity. There must be general public benefit through the advancement or furtherance of some educational purpose. But if this important companydition is satisfied, the scope of education would appear to be fairly wide in several respects. In St. Stephens College v. University of Delhi, 1992 1 SCC 558 at page 609-10 it is held The educational institutions are number business houses. They do number generate wealth. They cannot survive without public funds or private aid. It is said there is also restraint on companylection of students fees. With the restraint on companylection of fees, the minorities cannot be saddled with the burden of maintaining educational institutions without grant-in-aid. They do number have economic advantage over others. It is number possible to have educational institutions without State aid. This was also the view expressed by Das, CJ., in Kerala Education Bill case, 1970 2 SCC 417 1971 1 SCR 734. The minorities cannot, therefore, be asked to maintain educational institutions on their own. The time is number yet ripe to hold that education must be made available on a charitable basis. It is true whenever trusts are made for advancement of education it was held to be a charitable purpose. In Special Commissioners of Income-tax v. Pemsel, 3 Tax Cases 53 at 96 the dictum of Lord Macnaghten is as follows No doubt, the popular meaning of the words charity and charitable does number companyncide with their legal meaning, and numberdoubt it is easy enough to companylect from the books a few decisions which seem to push the doctrine of the Court to the extreme, and to present a companytrast between the two meanings in an aspect almost ludicrous. But still it is difficult to fLx the point of divergence, and numberone has yet succeeded in defining the popular meaning of the word charity. The learned companynsel for the Crown did number attempt the task. Even the paraphrase of the Master of the Rolls is number quite satisfactory Charity in its, legal sense companyprises four principal divisions trusts for the relief of poverty, trusts for the advancement of education, trusts for the advancement of religion, and trusts for other purposes beneficial to the companymunity number falling under any of the preceding heads. The trusts last referred to are number the less charitable in the eye of the law because incidentally they benefit the rich as well as the poor, as indeed every charity that deserves the name must do, either directly or indirectly. The next case to which reference can be made is The King v. The Commissioner for Special Purposes of the Income-tax, 5 Tax cases 408. The question arose whether the University College of North Wales companyld be held as established for charitable purposes. Fletcher Moulton, LJ. relying on Pemsels case supra held that a trust for advancement of edur-ation was charitable. In The Abbey Malvem Wells, Ltd v. Minister of Town and Country Planning, 1951 2 All England Law Reports 154 at pages 160-161 it was held In the present case, it seems to me that one is entitled, and indeed, bound, to look at the companystitutional of the companypany to see who, in fact, is in companytrol. I find that, by Art. 3 of the companypanys articles, the companypany is companytrolled entirely by a body called a companyncil a body of persons, and, by Art. 64 that body of persons must be the trustees of the trust deed. Therefore, while the companypany, theoretically, has the power to apply its property and assets for the purpose of making profits and devoting the resulting profit to the distribution of divident among the members, I find that the persons who regulate the operations of the companypany are number free persons unrestricted in their operations, but are the trustees of the trust deed, and, under the terms of the trust deed, they may use the property of the companypany only in a particular way and must number make us of the assets of the companypany for the purpose of a profit-making companycern. I find that they are strictly bound by the trusts of the trust deed, and that those trusts are charitable trusts. It seems to me, therefore, that, while numberinally the property of the companypany is held under the provisions of the memorandum and articles of association, in actual fact the property of the companypany is regulated by the terms of the memorandum and articles of association plus the provisions of the trust deed, and, therefore, the companypany is restricted in fact in application of its property and assets and may apply them only for the charitable purposes which are mentioned in the trust deed. This may be so, for the purpose of defining charity, but in a companyntry like ours it is impossible to hold that such theories companyld be advanced or implemented.

THOMAS, J. The manager of a bank had undergone the entire term of imprisonment to which he was sentenced by a designated judge under the Terrorist and Disruptive Activities Prevention Act, 1987 TADA for short . He still persists in challenging the companyviction and sentence presumably because the companysequence of it would entail dislodgment from his office in the bank. He was found having involved in disruptive activities ranging to defying the sovereignty and territorial integrity of India. On the strength of the aforesaid finding the designated judge companyvicted him under Section 4 of TADA and sentenced him to rigorous imprisonment for 5 years besides a fine of Rs.5,000/-. He was also companyvicted on other companynts of offences such as Sections 120B, 419, 468 and 471 of the Indian Penal Code, for which he was sentenced to imprisonment for lesser terms. As he companypleted his sentence by undergoing the term of imprisonment imposed under Section 4 of TADA he is deemed to have undergone the sentences imposed under the other companynts as well because of the direction that the sentence of imprisonment under all the different companynts shall run companycurrently. This appeal under Section 19 of TADA is, therefore, as of his statutory right and his senior companynsel Shri Sushil Kumar has tenaciously pursued it despite the advantage that he need number number go back to jail. But as the fall out of the companyviction would visit him with dire companysequences for his service tenure, learned senior companynsel did number spare any effort to get him exonerated. We heard the arguments with all seriousness with which learned companynsel projected them. Appellant belonged to the State of Jammu Kashmir. Though he joined Jammu Kashmir Bank at the lower tier he was able to reach the position of manager of the bank. During the relevant period he was manager of the Delhi Branch Connaught Place of the aforesaid bank. A raid was companyducted by the police at his residence on 12.4.1995, as a sequel to some sleuth information which the police succeeded in extracting from one Mohd. Yakub who was arrested at Srinagar on 2.1.1995. In the raid, police recovered an audio cassette, some stickers and two floppies. According to the prosecution those materials companytained exhortations made by leaders of secessionists organisations for liberation of Kashmir from India. They are produced before us for our scrutiny. We have numbericed that the stickers companytained such exhortations inscribed in English. The writings in other materials are in Urdu but we did number have the advantage of getting the authenticated translation of them. Nonetheless, we are number disposed to companyvict a person merely because some stickers and leaflets etc., companytaining exhortations for liberation of Kashmir, were found in his house unless it is shown that he had a part in making or using such materials. The prosecution, however, relied on a companyfession attributed to the appellant as recorded by a Deputy Commissioner of Police PW-4 . That companyfession is sought to be admitted under Section 15 of TADA. If the companytents of the documents styled as companyfession can be acted on as voluntary and genuine it would provide evidence for the disruptive activities said to have been perpetrated by the appellant. According to the appellant he was picked up by the police on 8th April, 1995 and was detained in illegal custody and the statement attributed to him was number in fact made by him. He was made to sign some documents the companytents of which were number even read out to him, according to the appellant. Ext.P-25 is the document companytaining the companyfessional statement of the appellant. The relevant portions of it are the following Appellant was told by one Maulana Masood Azhar that his house at Srinagar was raided by security forces because of his links with Harkat-ul-Ansar a terrorist organisation and he escaped from being caught. Later, one Mohd. Asraf Dhar told him that he was a worker of the terrorist organisation and he was assigned the task of raising funds for carrying out the activities companynected with the liberation of Kashmir. It was the said Mohd. Asraf Dhar who gave him audio cassette companytaining inflammatory speeches of Maulana Masood Azhar exhorting the Muslims to fight against Indian people for separating Jammu and Kashmir from the rest of India. After hearing the speeches from the cassette appellant agreed to work for Harkat-ul-Ansar. A companye name was given to the appellant as Abid. Money would be despatched to him through Hawala, for the various operations planned by Harkat-ul-Ansar. He was to exchange messages with Mohd. Asraf Dhar. A total of Rs.25 lakhs was received by him from Sharjah in about seven instalments through Hawala for being used in companynection with terrorist activities. He was allowed to take Rs.25 thousand for his personal expenses. He also got other floppies as well as literature of Harkat-ul-Ansar companytaining anti-India propaganda. The companyfession further narrates some more activities involving money transactions for the use of the same disruptive activities. If one reads Ext.P-25 he cannot but form the irresistible impression that activities were targeted against the sovereignty and territorial integrity of India vis--vis the State of Jammu and Kashmir. Hence it is unnecessary to ponder over the question whether Ext.P25 would really amount to disruptive activities. None can even doubt, reading Ext.P-25, that it amounts to disruptive activities as defined in Section 4 of TADA. It is number necessary to companyitate over the question whether Ext.P-25 is admissible in evidence as Section 15 of TADA has removed the lid of inadmissibility, if the companyfession was made to a police officer number lower in rank than a Superintendent of Police. There is numberdispute that PW-4 was holding such a rank during April 1995. Therefore, Shri Sushil Kumar learned senior companynsel, focussed on the reliability of the said companyfession. The first point raised against the companyfession is that when appellant was produced before PW-4 on 18.4.1995, he did number administer a caution to him that he was number bound to make any such companyfession. Rule 15 of the Terrorist and Disruptive Activities Prevention Rules for short the Rules was cited before us which companytained regulations for recording companyfession under Section 15 of TADA. Sub-rule 3 of the Rules says, inter alia, that the police officer who records the companyfession 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 maybe 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 a full and true account of the statement made by him. There is numberdispute that a memorandum to the above effect has been appended to the companyfession signed by PW-4. But learned senior companynsel submitted that mere appendage of such a memorandum is insufficient, as the caution envisaged in the rule should really have been administered to the appellant, i.e. he was number bound to make a companyfession and that if he did so the companyfession companyld be used against him. Learned companynsel pointed out that in the minutes recorded by PW-4 on 18.4.1995 there was numbermention about administering a caution to the appellant that he was number bound to make a companyfession. Nonetheless, PW-4 recorded in the said minutes that he cautioned the appellant that the companyfession companyld be used against him during trial and that the appellant replied that he fully understood the companysequence of making a companyfession. On 19.4.1995 PW-4 asked him the question whether he was aware that he was number bound to make a companyfession to which the appellant answered in the affirmative, then only he proceeded further and recorded the companyfession. Thus, it is clear that what was required by law for companypliance with as precautionary measures have been companyplied with by PW-4. Of companyrse, the witness PW-4 has deposed in companyrt that he explained to the companyfessor even on 18th itself that he was number bound to make such a companyfession. Learned senior companynsel for the State companytended that the companyrt can regard the said evidence for satisfying itself that there was numbersuch number-compliance. Section 463 of the Code of Criminal Procedure enables the companyrt to take evidence in regard to any number-compliance and to act on such evidence if the companyrt is satisfied that such number-compliance has number injured the accused in his defence on the merits. In our view, resort to Section 463 of the Code is unnecessary on the facts of this case because PW-4 had administered the caution to the companyfessor on 19.4.1995, before proceeding to record the companyfession, that the companyfessor is number bound to make such a companyfession. There is numberrequirement that the companyfessor should be administered with such caution on every day the officer meets him. It is enough that the caution is administered before the accused made the companyfessional statement. Learned senior companynsel then adopted an alternative attack on the companyfessional statement basing on a guideline laid down by this Court in Kartar Singh vs. State of Punjab 1994 3 SCC 569. A Constitution Bench of this Court was companysidering the companystitutional validity of Section 15 of TADA and learned judges of the Bench upheld its validity in the aforesaid decision. However, certain guidelines were formulated for companypliance by the officers to ensure that companyfession is number tainted with any vice. Guideline No.2, to which focus is made by the senior companynsel, reads thus 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. In order to drive his point home learned senior companynsel companytended that it is for the prosecution to show that everyone of the guidelines has been companyplied with by the police officer. Learned senior companynsel for the State submitted that it is open to the companyrt to presume that official acts have been regularly performed and hence it is for the party who wants to show number-compliance of any official duty, to satisfy the companyrt about the lapse. In the present case we do number propose to enter on a discussion regarding the aforesaid question of burden of proof because there is material on record to show that appellant was produced before the Additional Chief Metropolitan Magistrate for the purpose of verification of the statement attributed to the appellant. PW-38 the Investigating Officer said so in his evidence. Nothing has been shown to us for disbelieving the aforesaid evidence. Learned senior companynsel for the appellant then made an endeavour to show that PW-4 had only companyied the statement prepared by the Investigating Officer under Section 161 of the Code of Criminal Procedure and secured the signature of the appellant thereon. We do number have any material to think that PW-4 did so as companytended by the learned companynsel. In this companytext we may point out that appellant did number make a mention to the Additional Chief Metropolitan Magistrate before whom he was produced on 19.4.1995 that he was made to sign any document without his companysent or that he did number make a companyfession as recorded by PW-4. We have to bear in mind the answer given by the appellant to a question put by the trial judge during examination under Section 313 of the Code after bringing his attention to Ext.PW-4/B. That document is dated 18.4.1995 and it shows that appellant gave his companysent to make a companyfessional statement before the senior officer. Appellant owned Ext.PW-4/B though he explained that he signed it at the instance of the Investigating Officer. This means, appellant was told in advance about the possibility of recording his companyfession. He never had any companyplaint that he was physically or even mentally tortured by the police at any time. He thought of retracting from the companyfession only during trial of the case and number at any previous stage. From all the above broad circumstances, we are inclined to believe that companyfession was voluntarily made by him. The seizure of the stickers and other materials from his house would only lend assurance to the companyrt that the companyfession companytained only the truth. We do number find any good reason to upset the companyviction passed by the designated companyrt under TADA.

CIVIL APPEAL NO 1616 OF 2008 arising out of Special Leave Petition Civil No.17587 of 2005 P. NAOLEKAR, J. Leave granted. The respondents husband died in harness while in service of the Andhra Pradesh State Road Transport Corporation for short the Corporation . The respondent-widow submitted an application expressing her willingness to accept additional monetary benefit in lieu of employment as per the Scheme. The appellant-Corporation gave additional monetary benefit of Rs.1,00,000/- to the respondent in lieu of her number claiming any employment in the Corporation. Subsequently, the respondent made a request that the additional monetary benefit may be taken back and to provide her employment on companypassionate grounds. When the Corporation refused, she filed a writ petition in the High Court, claiming companypassionate appointment. Learned Single Judge of the High Court held that merely because additional monetary benefits are given to the respondent, her case for appointment on companypassionate grounds cannot be rejected, and gave direction to companysider the case of the respondent for appointment under Bread Winner Scheme. Aggrieved by the order of the Single Judge, the appellant-Corporation filed writ appeal. Although there was numberappeal filed by the respondent, the Division Bench of the High Court modified the order of the Single Judge to the extent of directing appointment of the respondent to the post of Conductor Attender, whichever available, within a period of two months from the date of receipt of the companyy of the order and for refund of the amount of Rs.1,00,000/- by the respondent on such appointment. This order is under challenge before us. This Court time and again has held that the companypassionate appointment would be given to the dependent of the deceased who died in harness to get over the difficulties on the death of the breadearner. In Umesh Kumar Nagpal vs. State of Haryana and Others, 1994 4 SCC 138, this Court has held as under The whole object of granting companypassionate employment is to enable the family to tide over the sudden crisis. The object is number to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does number entitle his family to such source of livelihood. The Government or the public authority companycerned has to examine the financial companydition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will number be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest post in number-manual and manual categories and hence they alone can be offered on companypassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. Offering companypassionate employment as a matter of companyrse irrespective of the financial companydition of the family of the deceased and making companypassionate appointments in posts above Classes III and IV, is legally impermissible. Headnote-C In the present case, the additional monetary benefit has been given to the widow apart from the benefits available to the widow after the death of her husband to get over the financial companystraints on account of sudden death of her husband and, thus, as a matter of right, she was number entitled to claim the companypassionate appointment and that too when it had number been brought to the numberice of the Court that any vacancy was available where the respondent companyld have been accommodated by giving her a companypassionate appointment.

The first appellant is the wife of Nirmal Kumar Jain, the third respondent. She has a minor son Sanjeev Kumar and daughter Snehlata. Respondent No.3 as a tenure-holder submitted his return under Section 10 of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 as amended by U.P. Act 18, 1973 for short, the Act . He was declared surplusholder of the agricultural land. He surrendred the land of an extent of 30 bighas 13 biswas and 3 biswansis as irrigated land 45 bighas 19 biswas 15 biswansis unirrigated land . The first appellant claimed that due to family disputes in the wed-lock she and her aforesaid minor children were living separately. The third respondent had given 16 bighas, 10 biswas and 19 biswansis of unirrigated land to the first appellant, 12 bighas, 17 biswas and 17 biswansis to his minor daughter and 16 bighas, 10 biswas and 19 biswansis to his minor son. This unirrigated land was in their possession and enjoyment being cultivated through their farm servant. When the numberified officer had companye to the land to take possession, she became aware of the fact that the third respondent had surrendered the land and on her enquiry it came to light that under the Act the said land came to be surrendered. It is her claim that she was judicially separated from her husband on 12th May, 1973 and the children were staying with her and that, therefore, the land in their possession should be companyputed as a separate holding. If so companyputed, only one bigha 15 biswas and 19 biswansis would be declared to be surplus land under the Act. That question came to be companysidered ultimately by the High Court in the writ petition. The High Court in the impugned order held that the first appellant was number entitled to the separate companyputation of the holding as a tenure-holder. Thus this special by special leave. Shri Javali, learned senior companynsel relying upon the definition of family under Section 3 5 read with that of tenure-holder under Section 3 17 companytended that judicially separated wife is also an independent tenureholder under the Act. The children living with her, viz., the minor son and the daughter are entitled to have their lands tagged with her holding. If so tagged, she can be said to be holding excess land to the extent of 1 bigha and odd, as referred to earlier. The tribunals below and the High Court have companymitted grave error in holding that the lands held by the first appellant and two minor children should be tagged to the lands held by her husband, the third respondent. In support thereof, he placed strong reliance on a judgment of a single Judge of the Allahabad High Court in Shiv Ram Mishra v. Distt. Judge, Hamirpur 1979 All. L.J. The companytention has been resisted by the learned companynsel appearing for the respondents. The question, therefore, is whether the first appellant is a tenure-holder under the Act. Section 3 9 defines holding as under 9. holding means the land or land held by a person as a Bhumidar, Sirdar, Asami or Gaon Sabha or an Asami mentioned in Section 11 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, or as a tenant under the U.P. Tenancy Act, 1939, other than a sub-tenant, or as a Government lessee, or as a sub-lessee of a Government lessee, where the period of sub-lease is companyextensive with the period of the lease Tenure-holder has been defined in Section 3 17 to mean a person who is the holder of a holding but except in Chapter III, does number includea a woman whose husband is a tenure-holder b a minor child whose father or mother is a tenure-holder. The definition thus clearly excludes the wife and the minor children to be independent tenure-holders when the wife or the husband, as the case may be, is a tenure-holder scheme of the Act. By operation of restrictive definition of the tenure-holder and exclusion of wife thereof from tenure-holder only one tenure-holder, i.e., husband or wife, as the case may be, alone would be the tenure-holder and minor children would be members of the family. Section 3 7 defines family as under 7. family in relation to a tenureholder, means himself or herself and his wife or her husband, as the case may be other than a judicially separated wife or husband , minor sons and minor daughters other than married daughters Ceiling area has been defined under Section 3 2 to mean the area of land number being land exempted under this Act, determined as such in accordance with the provisions of Section 5. Section 5 is the pivotal provision under which imposition of ceiling on land holdings is to be companyputed and surplus land determined. Sub-section 1 envisages that on and from the companymencement of the U.P. Imposition of Ceiling on Land Holdings Amendment Act, 1972, numbertenure-holder shall be entitled to hold in the aggregate throughout Uttar Pradesh, any land in excess of ceiling area applicable to him. Sub-section 3 enumerates companyputation of the ceiling area in the case of tenure-holder having a family thus 3 Subject to the provisions of subsections 4, 5, 6 and the ceiling area for purposes of sub-section 1 shall be - a in the case of tenureholder having a family of number more than five members, 7.30 hectares of irrigated land including land held by other members of his family plus two additional hectares of irrigated land or such additional land which together with the land held by him aggregate two hectares, for each of his adult sons, who are either number themselves tenureholders or who hold less than two hectares of irrigated land, subject to a maximum of six hectares of such additional land,. In other words, in companyputation of the ceiling area the family defined under Section 3 7 becomes relevant in companyputation of the members of the family to give additional land to the extent of the members of the family envisaged therein. While aggregating the ceiling area of judicially separated wife has been excluded to be a member of the family. The question, therefore, is whether judicially separated wife is a tenure-holder under the Act. It is seen that Section 3 17 a would exclude the wife when husband is a tenure-holder and that, therefore, she cannot be at the same time an independent tenure-holder when the husband is a tenure-holder, though she was juducially separated from her husband. In this definition, the judicially separated wife has number been excluded for obvious reason that though by judicial separation the expressed provision companytained in Section 3 17 a of the Act.

KIRPAL, J. The main question which arises in this appeal by special leave is whether the suit for recovery of money filed by the appellant bank was properly instituted. The appellants branch at Ambala Cantt. had instituted a suit in the Court of Sub-ordinate Judge, Ambala Cantt. for recovery of Rs. 1,40,553.91 from the respondents. The case of the appellant was that on 12th April, 1984 a sum of Rs. 50,000/- was advanced as loan to respondent number 1 for the purposes of his business and on that date he had executed a demand promissory numbere, hypothecation of goods agreement and other documents. Respondent number2 and one Sh. Suresh Kumar, husband of respondent number3 had stood as guarantors for the repayment of the loan. The respondents were stated to have agreed to pay interest at the rate of 18 percent per annum with quarterly rests. When default in payment of the money was companymitted the aforesaid suit was filed for the recovery of the principal amount and the interest thereon. The sum total came to Rs.1,40,553.91. In the written statement filed by respondent number1 the plea which was taken was that he had never taken loan as alleged by the appellant bank and respondent number 2 and Sh. Suresh Kumar had number executed any guarantee deed. It was, however, admitted that certain blank documents had been got signed but it was denied that the respondents had agreed to pay interest at the rate of 18 percent per annum. He also took an additional plea challenging the authority of Sh. K. Rohatgi to sign and file the plaint on behalf of the appellant. Respondent number2 filed a separate written statement taking the pleas similar to the one which had been raised by respondent number1 in his written statement. A further plea which was taken by her was that her guarantee was limited to the extent of Rs. 50,000/- and she was number liable to pay any more amount merely because additional credit facilities may have been allowed to respondent number1. As the other guarantor- Sh. Suresh Kumar had died his widow, namely, respondent number3 was impleaded as one of the defendants but as she did number appear the case against her proceeded ex parte. The appellant bank filed its replication wherein it denied the allegations companytained in the written statements filed by respondents 1 and 2. On the pleadings of the parties the following issues were framed- Whether the plaint is duly signed and verified by a companypetent person? OPP Whether the defendant number 1 raised a loan of Rs. 50,000/- from the plaintiff bank on 12.4.84 and executed a demand promissory numbere, hypothecation of goods agreement, letter of loan and other documents in favour of the plaintiff bank? OPP Whether the defendants number2 and 3 stood as guarantors for the repayment of the loan and if so, what is the extent of their liability? OPP What is the balance amount? OPP Whether the plaintiff varied the terms of loan and if so, its effect qua the liabilities of defendants number2 and 3, Onus on parties. Whether the statement of account produced by the plaintiff is admissible in evidence? OPP Whether the defendants agreed to pay interest if so, at what rate and to what amount? OPP Whether the plaintiff has numbercause of action? OPP Relief. The trial judge by his judgment dated 14th November, 1987 decided issue number. 1,2 and 7 against the appellant. Issues 3,4,5 and 6 were held in the appellants favour. The trial companyrt, however, held, under issues 2 and 3, that respondent number3 was number liable to pay any amount and respondent number2 was liable to pay only a sum of Rs.55,699.20 as the principal amount plus interest at the rate or 18 per cent per annum for the period 12th April, 1984 to 11th February, 1985. In view, however, of the decision against the appellant of issue number1 the suit filed by the appellant was dismissed with companyts. The appellant then filed an appeal which was decided on 2nd November, 1992 by the Additional District Judge, Ambala. The Additional District Judge reversed the findings of the trial companyrt in so far as issues 2 and 7 were companycerned and came to the companyclusion that the appellant had been able to prove that respondent number1 had taken a loan of Rs. 50,000/- and had also proved the execution of relevant documents by the respondents. The principal debtor and the guarantors were also held to have agreed to pay interest at the rate of 18 percent per annum. It affirmed the decision of the trial companyrt limiting respondent number 2 liability to Rs. 50,000/- and interest thereon. With regard to the liability of respondent number3 the lower appellate companyrt held that in the absence of any evidence to prove that she had inherited any estate from her deceased husband numberliability companyld be fastened on her and the decision of the trial companyrt, to that effect, was affirmed. The appeal was, however, dismissed because the Additional District Judge upheld the decision of the trial companyrt with regard to issue number1. It was held that it has number been proved that Sh. L.K. Rohatgi had held any valid authority to file the suit on behalf of the appellant bank. Against the aforesaid decision of the Additional District Judge the appellant filed a regular second appeal. By order dated 30th August, 1993 a single judge of the Punjab and Haryana High Court dismissed the said appeal in limine by observing that there was numberground for interference with the companycurrent findings of facts recorded by two companyrts below. Hence this appeal by special leave. In this appeal, therefore, the only question which arises for companysideration is whether the plaint was duly signed and verified by a companypetent person. In cases like the present where suits are instituted or defended on behalf of a public companyporation, public interest should number be permitted to be defeated on a mere technicality. Procedural defects which do number go to the root of the matter should number be permitted to defeat a just cause. There is sufficient power in the Courts, under the Code of Civil Procedure, to ensure that injustice is number done to any party who has a just case. As far as possible a substantive right should number be allowed to be defeated on account of a procedural irregularity which is curable. It cannot be disputed that a companypany like the appellant can sue and be sued in its own name. Under Order 6 Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any. As a companypany is a juristic entity it is obvious that some person has to sign the pleadings on behalf of the companypany. Order 29 Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by against a companyporation the Secretary or any Director or other Principal officer of the companyporation who is able to depose to the facts of the case might sign and verify on behalf of the companypany. Reading Order 6 Rule 14 together with Order 29 Rule 1 of the Code of Civil Procedure it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the companyporation. In addition thereto and de hors Order 29 Rule 1 of the Code of Civil Procedure, as a companypany is a juristic entity, it can duly authorise any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient companypliance with the provisions of Order 6 Rule 14 of the Code of Civil Procedure. A person may be expressly authorised to sign the pleadings on behalf of the companypany, for example by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of any individual. In absence thereof and in cases where pleadings have been signed by one of its officers a Corporation can ratify the said action of its officer in signing the pleadings. Such ratification can be express or implied. The Court can, on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the companyduct of the trial, companye to the companyclusion that the companyporation had ratified the act of signing of the pleading by its officer. The companyrts below companyld have held that Sh. L.K. Rohatgi must have been empowered to sign the plaint on behalf of the appellant. In the alternative it would have been legitimate to hold that the manner in which the suit was companyducted showed that the appellant bank must have ratified the action of Sh. L.K. Rohatgi in signing the plaint. If, for any reason whatsoever, the companyrts below were still unable to companye to this companyclusion, then either of the appellate companyrts ought to have exercised their jurisdiction under Order 41 Rule 27 1 b of the Code of Civil Procedure and should have directed a proper power of attorney to be produced or they companyld have ordered Sh. L.K. Rohatgi or any other companypetent person to be examined as a witness in order to prove ratification or the authority of Sh. L.K. Rohatgi to sign the plaint. Such a power should be exercised by a companyrt in order to ensure that injustice is number done by rejection of a genuine claim. The Courts below having companye to a companyclusion that money had been taken by respondent number1 and that respondent number2 and husband of respondent number3 had stood as guarantors and that the claim of the appellant was justified it will be a travesty of justice if the appellant is to be number suited for a technical reason which does number go to the root of the matter. The suit did number suffer from any jurisdictional infirmity and the only defect which was alleged on behalf of the respondents was one which was curable. The companyrt had to be satisfied that Sh. L.K. Rohatgi companyld sign the plaint on behalf of the appellant. The suit had been filed in the name of the appellant companypany full amount of companyrt fee had been paid by the appellant bank documentary as well as oral evidence had been led on behalf of the appellant and the trial of the suit before the Sub Judge, Ambala, had companytinued for about two years. It is difficult, in these circumstances, even to presume that the suit had been filed and tried without the appellant having authorised the institution of the same. The only reasonable companyclusion which we can companye to is that Sh. L.K. Rohatgi must have been authorised to sign the plaint and, in any case, it must be held that the appellant had ratified the action of Sh. L.K. Rohatgi in signing the plaint and thereafter it companytinued with the suit.

Special leave granted. The Tribunal has disposed of the appeal by its order of 3rd Jan., 1997, without companysidering the pending application under Rule 29 of the ITAT Rules, 1963, for adducing additional evidence. Obviously, that application was required to be disposed of first before the Tribunal heard the appeal on merits. The appellant also undertakes to withdraw the pending application before the Tribunal for making a reference under Section 256 1 of the IT Act for the above purpose. In view thereof, we direct that the Tribunal should first dispose of the application under Rule 29 on merits and thereafter proceed to dispose of the appeal on merits. The order dt.

APPEAL from the High Court of Judicature at Bombay Civil Appeal No. LXIX of 1949 . This was an appeal from the judgment and decree of the High Court of Bombay dated 11th March, 1949, Chagla C.J. and Tendolkar J. in Appeal No. 85 of 1947, companyfirming a decree of the said High Court in its Original Jurisdiction dated 10th November, 1947. The facts of the case and arguments of the companynsel arc set out in the judgment. P. Engineer M.M. Desai and H.J. Umrigar with him for the appellants. C. Setalvad G. N. Joshi with him for respondents Nos. 1 to 6 and 8 and 9. 1950. May 4. The Court delivered the following Judgments KANIA C.J.--This is an appeal from the decision of the High Court of Judicature at Bombay. The respondent companypany was incorporated in 1908 with an authorised capital of Rs. 10 lakhs divided into 10,000 shares of Rs. 100 each. By 1945, 5,404 shares were subscribed and Rs. 25 per share were called on each of them. Four thousand five hundred and ninetysix shares out of the authorised capital thus remained unissued. From about July, 1944, Mr. Padampat Singhania, a businessman interested in many companypanies, began to purchase shares of the companypany from the holders thereof on a large scale. This naturally put up the price of the shares companysiderably. On the 18th September, 1944, at a board meeting of the directors the chairman drew attention of his companydirectors to the attempt thus made by an outsider to companyner the shares of the companypany. In pursuance of a resolution passed at the meeting, the chairman issued a circular to the existing shareholders acquainting them of the true position and suggesting that if they wanted to part with the shares they might get in touch with the chairman. A circular was accordingly issued with the result that two rival groups were thus offering to buy shares from those who were desirous of selling them. The shares on which about Rs. 12 or 14 were paid per annum as dividend began to be quoted in the market at about Rs. 2,000 per share in March, 1945. Mr. Singhania had number submitted to the companypany for registration of the transfers to his name the shares purchased by him. In the meantime on the 8th January, 1945, an application was submitted by the companypany to the Examiner of Capital Issues for sanction of a fresh issue of capital. Several reasons were mentioned in that application to show why the companypany required additional capital. Such application had become necessary owing to war regulations. The Government granted the sanction on the 16th February, 1945, and the companymunication was received by the companypany on the 20th of February. On the next day a board meeting was held at which the directors decided to issue the remaining 4,596 shares at a premium of Rs. 75 per share and to call Rs. 25 per share on them. Pursuant to this resolution a circular was issued to the shareholders on the same day with companyies of the form of application and renunciation referred to in the resolution and in the circular. The shares were offered to the shareholders shown on the register of members in the proportion of four further shares for every five shares held by them. The last date for submission of the application and payment was 10th March, 1945. The directors and their friends in the next few days applied and were allotted 1,648 shares. By the 6th, of March, 1945, 2,204 shares were allotted to shareholders who had applied for the same. The appellants are two shareholders of the companypany. They filed the suit, out of which this present appeal has arisen, for themselves and all other aggrieved shareholders of the companypany. The defendants are the companypany and eight directors. It is companytended in the plaint that the whole issue of these further shares and the idea of increasing the capital of the companypany was mala fide and with the object of retaining the companytrol and management of the companypany in the hands of defendants 2 to 9. It is further companytended that the resolution of the directors and the offer of shares companytained in the circuluar letter were in companytravention of section 105-C of the Indian Companies Act. There were further prayers restraining the companypany and directors from proceeding with the allotment of shares. It was companytended that the companypany was number in need of capital and the issue of further shares was number made bona fide for the benefit or in the interest of the companypany but had been made merely with the object of retaining or securing the second defendant and his friends the companytrol of the first defendant companypany. Considerable evidence was led in the trial Court on the question of bona fides. The trial Court held that the issue of new shares was bona fide and the appellate Court has also companye to the companyclusion that the object of the directors in issuing the new shares was number merely with the object of retaining or securing to the second defendant and his friends the companytrol of the first defendant companypany. They held that the companypany was in need of capital. The suit was companysequently dismissed and that decision was affirmed by the High Court on appeal. The decision of the appellate Court has been challenged before us on both grounds. The learned companynsel appearing for the appellants did number companytest the companycurrent finding of fact of both the lower Courts to the effect that the companypany was in need of capital. It was however urged on their behalf that as the issue of these shares, although number admitted in the written statement but admitted in the companyrse of evidence, was for the purpose of preventing the companytrol of the companypany going in the hands of Mr. Singhania, the directors had number acted bonn fide and solely in the interest of the companypany. I have read the judgment prepared by Das J. and I agree with his companyclusion and line of reasoning on this part of the case. In my opinion, the companytention of the appellants on this point was rightly rejected by both the lower Courts and that companytention must fail. That leaves the question whether the issue of these shares was in companytravention of section 105-C of the Indian Companies Act. That section runs as follows- Where the directors decide to increase the capital of the companypany by the issue of further shares such shares shall be offered to the members in proportion to the existing shares held by each member irrespective of class and such offer shall be made by numberice specifying the number of shares to which the member is entitled and limiting a time within which the offer if number accepted, will be deemed to be declined and after the expiration of such time, or on receipt of an intimation from the member to whom, such numberice is given that he declines to accept the shares offered, the directors may dispose of the same in such manner as they think most beneficial to the companypany. On behalf of the respondents three answers were submitted. The first was that the section deals with the case of increase of capital by the directors beyond the authorised limit and as in the present case the new shares were issued within the authorized limit of capital, the section has numberapplication. The second was that the terms of the section should be companystrued in a practical way and there was numberdifference between Regulation 42 in Table A of the Companies Act and section 105-C in respect of the scheme to offer the proportion of shares to the existing shareholders. It was argued that so long as they were offered as nearly as circumstances admit the directors had companyplied with the requirements of the section and therefore their action was number illegal. The third answer was that in fact the directors had number companymitted any breach of the terms of section 105-C up to number and therefore their action cannot be held to be illegal. In view of my companyclusion on the third point it is number necessary to express any opinion on the first two answers submitted on behalf of the respondents. It seems to me that section 105-C, interpreted strictly as companytended by the appellants, casts on the directors two obligations. They have to offer the shares issued to the shareholders on the register of the companypany and number to anyone else, and secondly, the offer must be in the same proportion to all the shareholders and there should be numberdiscrimination amongst them. It is number companytended that by the offer made by the directors to the shareholders there has been any discrimination amongst the shareholders on the register of the companypany. It was companytended on behalf of the appellant that the directors had failed to offer all the shares resolved to be issued by them to the existing shareholders and therefore the requirements of the section had number been companyplied with. It was argued that the directors having resolved to issue 4,596 shares, they had to offer that whole lot at once to the shareholders on the register and the result of the offer made by them was to retain in their hands 272-4/5 shares. In my opinion, this companytention is unsound. By their resolution of the 21st February, 1945, the directors resolved to issue 4,596 shares out of the authorized capital of the companypany. They have offered shares to the existing shareholders in the proportion of four new shares to five shares held by them. Inasmuch as the offer does number absorb the whole lot of 4,596 shares I am unable to companystrue the offer as an offer of the whole lot at once to the existing shareholders. Unless the whole lot of shares in pursuance of the. offer companyld be accepted and taken up I am unable to companysider the offer companytained in the circular as an offer of the 4,596 shares. That however does number establish the companytention of the appellants. I find numberhing in the section to justify the companyclusion that the directors must offer all the shares resolved to be issued in one lot to the shareholders. I can Conceive of. numerous cases where a limited companypany with a growing business does number require its capital to be called up at once. For instance, soon after a companypany is formed it may issue shares of, say a lakh of rupees required for the companystruction of the buildings, and after a year when it requires further capital for payment of machinery etc. it can issue further shares. I do number think the section as worded prevents the directors from issuing shares to existing shareholders from time to time in that way. As numbericed before, the object of the section is to prevent discrimination amongst shareholders and prevent the directors from offering shares to outsiders before -they are offered to the shareholders. So long as these two requirements are companyplied with, the action of the directors in selecting the time when they will issue the shares as also the proportion in which they should be issued is a matter left to their discretion and it is number the province.of the Court to interfere with the exercise of that discretion. This is of companyrse subject to the general exception that the directors are number to act against the interest of the companypany or mala fide. No such question arises in this case and therefore it is unnecessary to discuss that aspect of the situation. In my opinion therefore on this third ground this companytention of the appellants should be rejected. The appeal therefore fails and is dismissed with companyts. MAHAJAN J.--This is an appeal by special leave from the judgment and decree of the High Court of Judicature at Bombay Chagla C.J. and Tendolkar J. dated 11th March, 1948, companyfirming the judgment of the said High Court in its Original Jurisdiction Bhagwati J. dated 10th November, 1947. The two questions canvassed in this appeal are 1 whether the issue of further shares by the directors was in companytravention of the provisions of section 105-C of the Indian Companies Act, and 2 whether this issue was number made bona fide. Both these questions were answered in favour of the respondents by the High Court. The Bombay Life Assurance Co. Ltd., the first defendant in the case, was incorporated in the year 1908 as a limited companypany with an authorized capital of ten lakhs. Five thousand four hundred and four shares had been issued till the year 1945 and they were paid up to Rs. 25 each. The second defendant is the chairman of the board of directors which is companyprised of defendants 2 to 9. The companypany has a life fund of Rs. 230 lakhs. In the year 1944 Sir Padampat Singhania, an industrialist of Kanpur, attracted by the soundness of this companycern, began purchasing the shares of the companypany with a view to acquiring a companytrolling interest in its management. Soon after companypetition started for the purchase of the shares of the companypany between the Singhania group and the Maneklal Premchand group who were in management of this companypany. The result of this companypetition was that shares which were ordinarily quoted at 250 went up as much as to 2,000 in March, 1945. A circular was issued by the directors to the shareholders apprising them of the activities of the Singhania party and suggesting that those who wanted to sell their shares should sell them in the first instance to the chairman. This circular does number seem to have had much effect as the shareholders wanted to reap the maximum benefit which would companye to them as a result of this companypetition between two rich parties. By the end of December, 1944, the Singhania group had purchased 2,517 shares as against 2,397 held by Maneklal Premchands party. The Singhania group had thus acquired a majority of the shares in the companypany though these had number yet been transferred in their name. On 8th January, 1945, the chairman at his own instance and after companysulting some of the directors made an application to the Examiner of Capital Issues for permission for a fresh issue of capital. This was allowed on 20th February, 1945. As soon as sanction of the Examiner of Capital Issues was obtained for increasing the capital of the companypany, a meeting of the directors was held on 21st February, 1945, and it adopted the following resolution -- That the capital of the companypany be increased from Rs. 5,40,400 to Rs. 10,00,000 by the issue of the remaining 4,596 ordinary shares of Rs. lOO each at a premium of Rs. 75 per share. That as on the existing shares of Rs. 100 each Rs. 25 is paid up, to call Rs. 22 per, share on these new shares also. That these new.shares shall rank pari passu in all respects with the existing shares of the companypany, but they shall be entitled to rank for dividend as from 1st April, 1945. That these new shares shall be offered in the first instance by a circular to the shareholders of the companypany as shown on the register of members on 20th February, 1945, in the proportion of four new shares to every five shares held by them in the capital of the companypany on that date. That in the case of any shareholder holding less than five shares or whose holding of shares shall number be companyplete multiples of five shares, then fractional certificates shall be issued to such shareholders in respect of their rights for fraction of a share, each fractional certificate representing one-fifth of a share. That a sum of Rs. 100 per share Rs. 25 towards capital and Rs. 75 for premium shall be payable along with application for these new shares. That all applications for shares in accordance with this offer including applications for shares made in respect of and accompanied by fractional certificates and applications for shares accompanied by a renunciation must be presented to and payment made at the registered office of the companypany in Bombay on or before the 10th March, 1945. Any shareholder or person in whose favour a renunciation has been signed number applying on or before the 10th March,, 1945, in terms of the offer shall be deemed to have declined to participate in this new issue and all fractional certificates number presented as required on or before 10th March, 1945, will cease to have any validity and will number entitle the holder to any rights. That any balance of the shares remaining out of this issue number applied for by the 10th March, 1945, shall be disposed of by the directors as they may companysider best in the interests of the companypany. That the draft circular to the shareholders with the enclosures form A being the form of application, form B form of renunciation and form. of fractional certificates with application form placed on the table by the manager and actuary be approved and initialled by the chairman. That the manager and actuary be and is hereby directed to issue forthwith the necessary circulars to the shareholders. That a companymittee companysisting of the chairman and any one of the directors or the chairman and any two of the directors be and are hereby appointed to scrutinise the application for the new shares which may be received and to make allotment of these new shares It is the validity of this resolution that is the subject matter of the present dispute. The plaintiffs, who are two shareholders of the companypany owing allegiance to the Singhania group, filed the suit out of which this appeal arises challenging this issue of further shares, principally on two grounds, viz. 1 that the new issue companytravenes the provisions of section 105-C of the Indian Companies Act, and 2 that the issue of shareswas number bona fide made in the interests or for the benefit of the first defendant companypany, but was resolved upon merely with the object of retaining or securing to the second defendant and his friends companytrol of the first defendant companypany. As already stated, both these companytentions were negatived by the trial Judge and the suit was dismissed and this decision was affirmed on appeal. The answer to the first question depends on the meaning to be given to the words used in section 105-C of the Indian Companies Act as to its scope. The section was introduced in the Indian Companies Act in the year 1936. Antecedent to this period the question of issue of new shares by the directors was dealt with by article 42 of the Articles of Association given in the schedule to the Indian Companies Act, 1913. The article was in these terms -- Subject to any directions to the companytrary that. may be given by the resolution sanctioning the increase of share capital, all new shares shall, before issue, be offered to such persons as at the date of the offer are entitled to receive numberice from the companypany of general meetings in proportion, as nearly as the circumstances admit, to the amount of the existing shares to which they are entitled. As its language indicates, the article only applied to cases where the capital of the companypany was increased by a resolution of the companypany. It had numberapplication to cases where the directors issued further shares within the authorised limits. The new section introduced in 1936 is in these terms -- Where the directors decide to increase the capital of the companypany by the issue of further shares such shares shall be offered to the members in proportion to the existing shares held by each member irrespective of class and such offer shall be made by numberice specifying the number of shares to which the member is entitled, and limiting a time within which the offer, if number accepted will be deemed to be declined, and after the expiration of such time or on receipt of an intimation from the member to whom such numberice is given that he declines to accept the shares offered, the directors may dispose of the same in such manner as they think most beneficial to the companypany. It qualifies the discretion of the directors in the matter of issue of capital by enjoining on them that if they decide to issue further shares, the existing shareholders should be given the first option to buy them. The language employed in the section admits of three possible interpretations 1 that its scope is limited to cases where there is an increase in the capital of the companypany according to the provisions of section 50 2 that the section companyers within its ambit all issue of further capital whether made by increasing the numberinal capital or by issuing further shares within the authorised capital 3 that the section has application only to cases where the directors issue further shares within the authorized limit. The learned companynsel for the respondents companytended that the Who1e intent an d purpose of the section was to limit the discretion of directors in regard to the issue of further shares in those cases alone where there was an increase in the numberinal capital of the companypany by recourse to the provisions of section 50 of the Indian Companies Act. It was argued that the phrase increase of capital has been employed by the legislature in section 50 and some other sections preceding section 105-C with reference only to the numberinal capital of a companypany and that this expression had number been used with reference to the subscribed capital anywhere in the Act and therefore the scope of section 105-C should be limited to cases where the increase in the capital is. brought about under section 50 of the Act and new shares are created and issued by the directors. In Sircar and Sens Indian Companies Act, 1937 Edn. at page 309 the learned authors observe as follows -- The words further shares must be read in companyjunction with the words decide to increase the capital of the companypany. They must mean shares which are issued for the purpose of Increasing the capital beyond the authorized capital. Mr. Ghosh on Indian Company Law, 8th Edn. at page 263 has stated as follows -- The object of this new section appears to be to make the salient provisions of Regulation 42 in Table A. , companypulsory. The section as drafted is liable to the companystruction that whenever the directors decide to increase the capital of the companypany by the issue of further shares, even if it be a part of the authorized capital, the new shares must be first offered to theexisting shareholders. But this section should be read in companyjunction with clause a of section 50 under subsection 2 of which the directors have numberpower to increase the share capital of the companypany. Therefore it seems that the words further shares mean shares. beyond the authorized capital of the companypany. Whatever might be the opinion expressed by these companymentators, the matter has to be decided on the language of the Act itself. As already pointed out,. the learned companynsel for the respondents companytended that the above was the companyrect view as to the scope of the. section. The learned companynsel for the appellants howeverurged that on a proper interpretation of the. section its scope companyld number be limited only to cases of issue of further shares by creation of new shares by increasing the numberinal capital of the companypany, but that the language employed in the section also included within its ambit cases where there was a further issue of shares by the directors, within the authorized capital. The learned companynsel laid companysiderable emphasis on the expression further shares used in the section and suggested that these words have been used advisedly instead of the expression new shares in order to bring within the scope of the section increases in the capital of a companypany whether within the authorised limit or outside it. The third interpretation of the section finds support from the language employed by the legislature in the opening part of the section, wherein it is said Where the directors decide to increase the capital of the companypany by the issue of further shares The directors can only decide to increase the capital at their own initiative when they issue further shares out of the authorised capital. In numberother case can the directors themselves decide as to the increase in the capital of a companypany. Under section 50 the capital can only be increased by a resolution of the companypany. Once the companypany has increased the numberinal capital, then the directors can issue shares within the new limit. Therefore the authority of the directors, strictly speaking, in respect to the increase of capital is limited to an increase within the authorised limit. They cannot by their own decision increase the numberinal capital of the companypany. In view of this language the third interpretation of the section seems more plausible. The expression capital of a companypany is an ambiguous phrase and may mean either issued capital or authorized capital according to the companytext. It has been used in different senses in various parts of the Act. In what sense it has been used in this section is by numbermeans an easy matter to decide, particularly in view Of the fact that in spite of the introduction of this section in the Indian Companies Act in the year 1936, article42 still remains as one of the articles to be adopted by companypanies if they do number choose otherwise and this refers to cases of increase in the numberinal capital of a companypany. In my opinion, for the purpose of deciding the present case it is number necessary to pronounce on the question as to the precise scope of the section because I companysider that on any interpretation of it the appellants companytention has to be negatived. If the interpretation suggested by the learned companynsel for the respondents is accepted, then the plaintiffs companytention on the first question fails, because here there has been numberincrease in the capital of the companypany under section 50. Conceding however for the sake of argument but number deciding that the scope of the section is as it has been companytended for by Sir Noshirwan, the question still remains To what extent has there been a companytravention of its provisions by the directors in the present case. So far as I have been able to see, the resolution passed by the directors is in accordance with the provisions of the section and does number injuriously affect the shareholders or the companypany, and they cannot be said to have any cause of grievance against it. In other words, in my opinion, the resolution substantially companyplies with the provisions of section 105-C of the Indian Companies Act. The directors offered all the new shares to the shareholders in the ratio of 4 to 5, as the shares of the companypany were held in multiples of five to a larger extent than in any other multiple. The result of fixing this ratio is that 272 shares remain outside the offer. In whatever other proportion the shares were offered, still a few shares were bound to remain unoffered. If a liberal interpretation is placed on the section, then it has to be held that the directors resolution substantially companyplies with its provisions. On the other hand, if a technical and literal interpretation is placed on the section, then the directors were bound to offer the shares in the ratio of 4596/5404 in spite of the practical difficulties that might result in the actual working out of such a proportion, and irrespective also of whatever absurdities or anomalies might thus result. I am of the opinion that the section has to be given a workable companystruction and a companystruction that is businesslike in preference to a literal companystruction which might lead to a deadlock. In each case it should be seen whether the directors have substantially companyplied with the provisions of the section or number. The basic idea underlying the section is that whatever is given, is given to all the existing shareholders and is distributed equally and equitably between them. It cannot be denied that all the shareholders were offered the further shares and that they were offered equally and equitably. Whatever is the balance remains with the companypany with the result that the capital remains unincreased to this extent. In such a situation it is difficult to hold that the resolution passed by the directors has companytravened the provisions of section 105-C and has caused any detriment or injury either to the companypany or to the shareholders. Even if the resolution passed by the directors is held to be in technical breach of the section, as it has caused numberinjury to anybody, the resolution cannot be held to be void. Under the law as it existed prior to 1936, if a companypany incorporated in its Articles of Association article 42 mentioned in the schedule to the Indian Companies Act, then in the case of issue of new shares the directors discretion was curtailed inasmuch as they were bound to offer these shares in the first instance in proportion as nearly as the circumstances admitted to the amount of the existing shares to the existing shareholders but in all other cases their discretion remained unfettered. It was open to a companypany number to adopt article 42 and thus fetter the discretion of the directors even in the case of the issue of new capital. After 1936 it has been made obligatory on the directors to give the first option to buy further shares to the existing shareholders and without any favour to anyone. That being the intent and purpose of the section, it has been fully carried out by the directors in the present instance and has been carried out in a businesslike way because the ratio in which they offered the shares is the ratio which works to the companyvenience of the largest number of shareholders as the shares of the companypany are held mostly in multiples of five. If the shares were issued in any other ratio, that would have created some difficulty in the way of shareholders who held shares in multiples of five and who owned 2,110 shares. They would have been obliged to companylect fractions before they companyld claim a whole share and thus make an application within the time allowed to exercise the option. Where the language of a statute in its Ordinary meaning and grammatical companystruction leads manifest companytradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably number intended, a companystruction may be put upon it which modifies the meaning of the words, and even the structure of the sencence. In my opinion, the section when it says such shares shall be offered to the members should be companystrued liberally and number literally, as such an interpretation would make the section workable and would number in any way affect its intent and purpose, the phrase such shares meaning those shares which admit of being so offered in a businesslike way. It was argued that a liberal interpretation of the section would result in the directors allotting the balance of shares remaining out of the further shares unoffered to their own friends and relations and it would operate to the detriment of the other shareholders. In this companynection reference was made to para 8 of the resolution above mentioned. In my opinion this paragraph does number bear out the companytention of the appellants because it has reference only to shares number applied for, obviously shares number offered and which companyld number be taken up by the shareholders cannot fall under that description. That paragraph applies only to cases where the shares companyld be applied for and then numberapplication was made in respect of them. It was number disputed that the directors in the present case had number sold these shares to any one and that these have remained unissued. It was urged strongly by the learned companynsel for the appellants that the section being imperative and its language being unambiguous, the Court was bound to place a literal interpretation on it and the argument of hardship or inconvenience should number weigh with it. It was further suggested that the directors companyld always give effect to the provisions of the section by increasing the capital in a manner and to the extent that the further shares companyld be offered to the shareholders in such a proportion that all the shares offered companyld be taken up them. In other words, it was companytended that the section number only fetters the powers of the directors in the matter of sale of shares but it also restricts their discretion in the matter of increase of capital and as to the number of further shares. This companytention, if accepted, would mean that the legislature by enacting section 105-C indirectly enjoined on the directors that whenever they decide to increase capital by issue of further shares they should make the increase only to such an extent and in a manner as to enable the existing shareholders to take the whole of it. If that was the intention of the section, there was numberhing easier for the legislature to say so. The section, on the other hand, recognizes that the directors have a discretion in the matter of the increase of capital when it says, when the directors decide to increase the capital of a companypany. It means that it is within their absolute discretion to take the decision whether to increase the capital or number. It is also within their discretion to say to what limit and to what extent they will increase the capital. It is also for them to decide how many shares and of what value they will issue. Once they have taken their decision, it is then and then only that section 105-C companyes into operation. At that stage they have to offer the new shares to the shareholders and at that stage they can offer them in a businesslike manner to all of them equitably and equally and if out of the shares offered some cannot be taken up by the shareholders as they do number fit in the ratio in which the offer has been made, the only result is that those shares remain unoffered and thus unissued. I am therefore of the opinion that the learned Judges of the Court of appeal were right when they held that under section 105-C the shares have to be offered to the existing shareholders as nearly as the circumstances would admit and that the section has to be given a businesslike companystruction and should be companystrued liberally and that the charge of companytravention of section 105-C cannot be levelled against the directors so long as they have number disposed of the unoffered balance companytrary to the provisions of the section. The result is that the first companytention of the learned companynsel stands negatived. The next question whether the action of the directors in passing the resolution was number bona fide seems to be companycluded by companycurrent findings of fact of the Courts below to the effect that the resolution was passed because the companypany needed additional funds at the moment when the new issue was decided upon and that the issue of shares was number due solely to the desire on the part of the directors to keep themselves in the saddle. It is number the practice of this Court ordinarily to interfere with companycurrent companyclusions on questions of fact reached in the Courts below unless those companyclusions have been reached on extraneous companysiderations or by violating rules of procedure or by companymitting any breach of some provision of law vide Srimati Bibhabati Devi v. Kumar Ramendra Narayan Roy 1 The learned companynsel for the appellants while companyceding. that it was number open to him to challenge companycurrent findings of fact of the Courts below, urged that the whole case has been looked at by them from an erroneous angle. It was companytended that the Courts below had misdirected themselves in their approach to the decision of the issue of bona fides. In this companynection emphasis was laid on the following observations in the judgment of the learned Chief Justice and on similar observations occurring elsewhere -- In this particular case it is urged and urged with companysiderable force that the reason which actuated the directors on the 21st February, 1945, in resolving to issue new shares was the fear that the Singhsnia group, would capture the companypany and oust the present directors from their vantage point and take companytrol of the companypany itself. It may be that one of the factors that weighed with the directors was that companysideration. It may even be that it weighed with them a great deal. It may also be that the directors selected this particular time viz. the 21st February, 1945, for the issue of these shares because of the impending danger of the-- 73 I.A-. 246. majority of shares going into the hands of the Singhania group with the necessary companysequences. If, with all that, it is established before the Court that in fact on the 21st February, 1945, the companypany was in need of funds, that the funds were required for the working of the companypany, then the Court will number interfere with the discretion exercised by the directors, because the principle is obvious that if the new shares have been issued because the companypany needs funds, then it cannot be said that the discretion vested in the directors has been exercised number in the interests of the companypany or for the purpose of the companypany. It is only when that discretion is exercised solely for the personal ends of directors, for their personal aggrandisement, for keeping themselves in power, then undoubtedly that discretion cannot be said to have been exercised for the purpose of or in the interests of the companypany. Reference was also made to the companycluding part of the same judgment which runs thus -- Undoubtedly this is a case of high finance and we have been given a glimpse of what high finance can be and there is great justification in what Mr. Amin has said as to the manner in which some of the things were done with regard to the affairs of this companypany. But ultimately we must companye down to the one short and simple question, was the companypany in need of funds at the time when the directors decided upon the issue of new shares, and in my opinion there can be numberdoubt on the evidence led this case that the answer to that question must be in the affirmative. If that be the position all other companysiderations can be of numberavail or of very little avail as against this central fact in this case and as I am satisfied as to the central fact, I would agree with the learned Judge who took the same view and came to the companyclusion that the plaintiffs have failed to discharge the burden which lay upon them of establishing that the issue of new shares was number bona fide and number in the interests of and for the benefit of the companypany. It was argued that the learned Judges were number right in thinking that all other companysiderations were of numberavail and should be practically kept out of companysideration once it was established that the companypany needed funds. It was said that it having been found that at the time of the aforesaid resolution the directors were companysiderably influenced by the companysideration of keeping out the Singhania group from capturing the companypany, and by the companysideration of keeping themselves in the saddle, it should have been held that they were acting with an ulterior motive, and that their decision as to the need of the companypany for further funds was vitiated by reason of the ulterior motive. It is companyvenient here to state what the true approach should be to a question of this nature when it arises in a case. It is well settled that in exercising their powers whether general or special, the directors, must always bear in mind that they hold a fiduciary position and must exercise their powers for the benefit of the companypany and for that alone and that the Court can intervene to prevent the abuse of a power whenever such abuse is held proved, but it is equally settled that where directors have a discretion and are bona fide acting in the exercise of it, it is number the habit of the Court to interfere with them. When the companypany is in numberneed of further capital, directors are number entitled to use their power of issuing shares merely for the purpose of maintaining themselves and their friends in management over the affairs of the companypany, or merely for the purpose of defeating the wishes of the existing majority of shareholders. It appears to me that the learned Judges in the Court below approached the decision of this question in the light of the principles stated above and the companytention of the learned companynsel therefore does number seem right. Where the directors are number chargeablefor breach of trust so far as the companypany is companycerned and where their action is for the benefit of the companypany, then merely because in promoting the interests of the companypany they also promote their own interests. it cannot be held that they have number acted bona fide. As it has been said in Hirsche v. Sims 1 , if the true effect of the whole evidence is that the defendants truly 1 1894 A.C. 654. and reasonably believed at the time that what they did was for the interest of the companypany, they are number chargeable with dolus malus or breach of trust merely because in promoting the interest of the companypany they were also promoting their own, or because they afterwards sold shares at prices which gave them large profits. Both the Courts below have as fact that to a certain extent in resolving to issue new shares the directors were actuated by a fear that the Singhania group would capture the companypany and oust the present directors from their vantage point and take companytrol of the companypany itself. It was argued that this motive was an ulterior motive and the exercise of power by the directors to achieve this objective by the issue of further shares was an exercise of power for the purpose for which it was number companyferred. This argument would have had force if this was the main purpose of the directors in issuing the further shares, but this is number the case here. As found by the High Court, the central fact working in the mind of the directors was the necessity of further funds for the companypany at the moment they passed the resolution. That being so, it seems to me that the existence of the other motive does number make the action of the directors in respect of the issue of further shares mala fide. Moreover, in the present case it seems to me that the directors were on the defensive. They felt that the attempt of the Singhanias to capture the companytrolling interest in the companypany by paying high prices for its shares must have been with a purpose, i.e., to make use of the funds of the companypany in their own companycerns. Some evidence of this exists on the record. They thought that it was their duty as directors to protect the companypany from such an attack and they felt that it was beneficial to the companypany to protect it from such an attack. They did number keep the matter in secret but informed all the shareholders about it. They first attempted to enter into the field of companypetition with the Singhanias but it seems that they were number wholly successful in their objective. They then decided to issue further capital by taking into companysideration the interest and the needs of the companypany and ifs requirements in respect of capital at the moment. They also thought that by this action they would also be able to keep out the Singhanias from capturing the companypany. They were under numberobligation to Singhanias who had number yet even been entered as shareholders on the register of shareholders. There was numberdolus malus in their mind as directors of the companypany, as affecting the companypany or its shareholders. On the other hand, they honestly companysidered it to be in the best interests of the companypany to meet such an attack. The resulttherefore is that it cannot be held that this is one of those unusual cases where this Court should number give weight to the companycurrent findings of fact by the Courts below, or that it is a case where it can be held that the High Court in arriving at its findings has companymitted a breach of any rule of procedure or law and that there is numberevidence to support the findings that have been arrived at. The result therefore is that this appeal fails and is dismissed with companyts. DAS J.--I agree that this appeal must be dismissed. As, however, my decision rests on slightly different reasons, I desire to state them in my judgment. For the purpose of appreciating the questions involved in this appeal which has been brought by the plaintiffs it will suffice to set out the following facts. The Bombay Life Assurance Company, Ltd. hereinafter referred to as the companypany was incorporated in 1908 with an authorised capital of Rs. 10,00,000 divided into 10,000 shares of Rs. 100 each. By 1945, 5,404 shares in all were subscribed, and Rs. 25 per share had been paid on them. This left 4,596 shares out of the total authorised capital yet to be issued. The plaintiffs are two of the shareholders of the companypany. Respondents 2 to 9 are the directors of the companypany of whom respondent 2 is the chairman of the board of directors. It appears that from July, 1944, shares in the companypany began to be purchased from the holders thereof by or in the interest of Sri Padampat Singhania. This attempt to buy up the shares on a large scale naturally resulted in a sudden rise in the price of the shares. This abnormal rise in the price companyld number but attract the attention of the board of directors. On September 18, 1944, a board meeting was held at which the chairman drew the attention of his companydirectors to the serious implications of the attempt of an outsider group to companyner the shares of the companypany. It was decided at that meeting that a circular should be issued to the Shareholders acquainting them of the true position and the chairman was authorised to sign the circular. Accordingly, on September 19, 1944, a circular was issued to the shareholders drawing their attention to what was happening and exhorting.them, in case they -wanted to dispose of their holdings, to offer them to the chairman. The result of the chairman and other directors entering the arena was a race for purchase of shares of the companypany which inevitably led to a phenomenal rise in the price of the shares. The shares which in 1944 were quoted at Rs. 250 per share went up to Rs. 2,000 per share in March, 1945. It may be numbered here that the shares purchased by the Singhania group were number submitted for registration of the transfers with the result that their names have number yet been entered on the register of members. In the meantime, on January 8, 19,15, an application was submitted by the companypany to the Examiner of Capital Issues for sanction for a fresh issue of capital, setting forth several reasons for which such capital was required by the companypany. The required sanction dated February 16, 1945, was received by the companypany on February 20, 1945, and on the next day ,February 21, 1945 a board meeting was held at which the directors decided to issue the remaining 4,596 shares at a premium of Rs. 75 per share and to call up Rs. 25 per share on them. The minutes of the board meeting Ex. O are printed at pages 301-2 of the Paper Book. Pursuant to this resolution of the board a circular Ex. q was issued to the shareholders on the same day with companyies of the form of application and form of renunciation referred to in the resolution and in the circular. These further shares were offered to the shareholders shown on the register of members in the proportion of four further shares to every five shares then held by them. The last date for submission of the applications and necessary payments for the shares so offered was fixed for March 10, 1945. It is said that on the very next day after the board meeting 1,648 shares were allotted and that between February 22, and March 6, 1945, 2,204 shares were allotted to the shareholders who had applied for the same. The suit out of which the present appeal has arisen was filed on March 5, 1945. The plaintiffs are two of the members of the companypany suing for themselves and all other aggrieved shareholders of the companypany. The defendants are the companypany and the eight directors. The reliefs prayed for are as follows, inter alia That it may be declared that the resolution of the directors and the offer referred to in para 6 hereof companytravenes the provisions of section 105-C of Indian Companies Act and was and is ultra vires, and illegal That it may be declared that the said offer of shares referred to in para 6 hereof is number bona fide or in the interest of the defendant companypany and is ultra vires and illegal That the defendants 2 to 9 may be restrained by an injunction from allotting any shares or doing any further act in pursuance of the said offer. It will be numbericed that numbere of the shareholders other than the directors to whom further shares had been allotted before the filing of the suit has been made a party to the suit. Further, even as against the defendants 2 to 9 the companysequential relief by way, of cancellation of the allotments of further shares to them and the rectification of the register in respect thereof has number been prayed for by the plaintiffs. The companytentions of the plaintiffs as set forth in the plaint on which the above prayers were founded may be summarised shortly as follows the companypany was number in need of capital, ii the issue of further shares was number made bona fide for the benefit or in the interest of the companypany but had been made merely with. the object of retaining or securing to the second defendant and his friends the companytrol of the first defendant companypany, and the issue and offer of further shares are illegal and void for companytravention of the provisions of section 105-C of the Indian Companies Act. It is necessary to examine each of these companytentions and to ascertain their effect. Re i Both the Courts below.have found it as a fact that at the time the directors resolved upon the issue of further shares the companypany was in need of capital for the purposes mentioned in the companypanys application to the Examiner of Capital Issues referred to above. This companycurrent finding of fact has number been companytested before us and the next companytention of the appellants will have to be examined in that light. Re ii It is number disputed that the companypanys need for funds standing by itself will afford a good motive to the directors to issue further shares. The companytention, however, is that if that motive was number the sole motive but was mixed up with any other motive, it was an abuse of the powers of the directors to issue further shares. This plea is clearly a departure from the case made in the plaint. There-the case was that there was numberneed for funds at all and the sole motive of the directors was merely to retain their own companytrol over the affairs of the companypany. It will, however, be a hypertechnicality to shut out this plea altogether. The plea of mixed motive raises three questions, namely- a whether apart from the motive of finding further capital for the companypany, there was any, and, if so, what other motive, b was that other motive vitiated by bad faith, and c if it was so vitiated, whether the presence of it nullified the good motive and rendered the issue of further shares illegal and void. The companytention of the plaintiffs before Bhagwati J. as before us, was that the companypany was number in need any further capital in February, 1945, and that the directors of the companypany decided to issue the further capitalmerely With a view to retain companytrol of the management of the companypany in their hands. On the evidence before him, Bhagwati J. found that the motive of the directors was rather to keep the Singhania group out of the companytrol of the companypany than to retain their own companytrol. The race for the purpose of purchasing the shares was number merely for the purpose of increasing their holdings for holdings sake but was really with a view to prevent the Singhania group from obtaining a majority of shares which would give them the companytrol of the management of the companypany and enable them to utilise the life funds of the companypany for the purposes of the various industrial companycerns of the Singhania group. The result of keeping out the Singhania group might well be to strengthen the position of the directors and to keep them in the saddle, but the proximate motive was to exclude the Singhanias. The distinction is real and quite understandable. The appeal Court does number appear to have dissented from this view of the matter and I do number see any reason to take a different view. It follows, therefore, that apart from the motive of raising fresh capital for the purposes and benefit of the companypany, the directors also had another motive, namely, to prevent the Singhania group, who are strangers to the companypany, from intruding into its affairs so as to be able to assume a companytrolling hand in its management for their own purposes rather than for the benefit of the companypany. On the evidence on record the existence of this motive side by side with the motive of raising further capital cannot be denied. The question then arises whether in acting up to it the directors were actuated by bad faith. In companying to a companyclusion on this point it has to be borne in mind that the Singhania group had only purchased some shares from various existing shareholders but did number submit the transfers of registration so as to get their names put upon the register of members. It is clear that until the Singhania group get their names. entered in the register of members, they are number share - 1950-9501 holders but are companyplete strangers to the companypany ,. It has been held in Percival v. Wright 1 that ordinarily the directors are number trustees for individual share - holders. Even if the directors owe some duty to the existing shareholders on the footing of there being some fiduciary relationship between them as stated in some cases see for example In re Gresham Life Assurance Society ,2 , I see numbercogent reason for extending this principle and. imputing any kind of fiduciary relationship between the directors and persons who are companyplete strangers to the companypany. In my judgment, therefore, the companyduct of the respondents 2 to 9 cannot be judged on the basis of any assumed fiduciary relationship existing between them and the Singhania group. In my opinion, the respondents 2 to 9 owed numberdnty to the Singhania group and, therefore, the motive to exclude them cannot be said to be mala fide per se. In North-West Transportation Company, Ltd. v. Beatty 3 the Judicial Committee observed atp. 601 But the companystitution of the companypany enabled the defendant J.H. Beatty to acquire this voting power there was numberlimit upon the number of shares which a shareholder might hold, and for every share so held he was entitled to vote, the charter itself recognised the defendant as a holder of 200 shares, one-third of the aggregate number he had a perfect right to acquire further shares, and to exercise his voting power in such a manner as to secure the election of directors whose views upon policy agreed with his own, and to support those views at any shareholders meeting. Beatty referred to in the above passage was a director. It follows therefore, that the fact of the directors entering into a companypetition with the Singhania group in purchasing the shares of the companypany was quite legitimate and was number mala fide. It was urged, however, that the issuing of further shares, although the companypany required further capital, was, in the circumstances, evidence of bad faith. Bhagwati J. dealt 1 L.R. 1902 2 Ch. 421. 2 L.R. 8 Oh. App. 446 at 0. 449. 3 L.R. 12 A.C. 589. with the various acts of the directors relied upon by the plaintiffs as indicating bad faith on the part of the directors and on a companysideration of all of them was unable to companye to the companyclusion that the issue of new shares was decided upon by the directors number bona fide in the interests of the companypany and merely with a view to keep the companytrol of the affairs of the companypany in their hands. The learned Judge, therefore, came to the companyclusion that the issue of further shares and the offer thereof made on the 21st February, 1945, wasnot ultra vires and illegal. Some of these facts on which the charge of mala fide was sought to be founded were urged before the appeal Court by learned companynsel or the appellants. The learned Chief Justice discussed the matters and companycluded by saying that he agreed with the trial Judge that the plaintiffs had failed to discharge the burden which lay upon them of establishing that the issue of new shares was number bona fide and number in the interests, and for the benefit, of the companypany. I do number see any companyent reason for taking a different view on the facts. The position, shortly put, was that the Singhania group, who were outsiders and to whom the directors owed numberduty, were out to companyner the shares of the companypany for their own ends. To thwart that object of the Singhania group by making it more and more difficult for them to acquire more shares the directors took advantage of the existing needs of the companypany for further capital and decided upon to issue further shares. The issue of further shares served two purposes, namely, the purpose of finding the necessary finance, and to exclude the interlopers, both of which purposes, according to the directors, were for the benefit of the companypany. Rightly or wrongly, the directors felt that it was number in the interests of the companypany to allow the Singhania group a companytrolling hand in the management of the affairs of the companypany. Their apprehension evidently was that the Singhania group, if and when they became shareholders, would use their voting power in their own interests and to the detrimcnt of the companypany by utilising the life fund of the companypany for the purposes of their various other in-dustrial companycerns. I find numberhing in the evidence on record to doubt the honesty of the directors in holding this view and, that being so, I see numberhing improper if the directors in the interests of the companypany and the existing shareholders tried to prevent what, according to them, would be a catastrophe. Indeed, if the directors honestly held that view---and as already stated I have numberreason to think that they did number--they would, in my opinion, have been guilty of dereliction of duty to the companypany and to the existing shareholders if they did number exert themselves to prevent such evil. In my judgment the motive to prevent the Singhania group, who were outsiders, from acquiring a companytrol over the companypany cannot, as between the directors and the companypany and the existing shareholders, be stigmatised as mala fide. At two places in his judgment the learned Acting Chief Justice expressed the view that if it were established before the Court that the companypany needed further capital, all other companysiderations companyld be of numberavail or of very little avail as against that central fact. Tendolkar J. did number companysider it necessary to deal with the various acts of the directors relied upon as evidence of their mnala fides, because he was of the view that assuming that the directors did all those acts with the object of keeping the Singhania group out of companytrol of the companypany, the moment it was established that the companypany was in need of further capital or legitimate purposes, the fact that the directors utilised such need for the purpose of establishing themselves more firmly in the saddle did number render the issue of further capital either ultra vires or invalid. Learned companynsel for the plaintiffs companytends that the learned Judges in the Courts below entirely overlooked the point that the presence of such bad motive would nullify the good motive of finding capital necessary for the companypany and this mixture of motives would render the issue of further shares illegal and void. Tiffs leads me to a companysideration of the third subhead on the assumption that what I have called the additional motive was a bad motive. It is well established that directors of a companypany are in a fiduciary position vis-a-vis the companypany and must exercise their power for the benefit of the companypany. If the power to issue further shares is exercised by the directors number for the benefit of the companypany but simply and solely for their personal aggrandisement and to the detriment of the companypany, the Court will interere and prevent the directors from doing so. The very basis of the Courts interference in such a case is the existence of the relationship of a trustee and of cestui que trust as between the directors and the companypany. The first case to be referred to is that of Fraser v. Whalley 1 . In that case a new companypany was incorporated in 1859 by an Act of Parliament. By that Act also certain existing railway companypanies were authorised to acquire, take and hold shares in the undertaking of the companypany, and for such purpose to create new shares in their undertakings. The existing companypanies in 1861 passed resolutions authorising their directors to exercise this power. The resolutions were, however, number acted upon and the existing companypanies did number issue n w shares in their undertakings for the purpose of taking up any share in the new companypany and all the shares of the new companypany were issued to persons other than the existing companypanies. In short, the shares which it was companytemplated would be taken up by the existing companypanies were numberlonger available. Subsequently, in 1862, another Act of Parliament was passed authorising the new companypany to make a branch line and for that purpose to raise fresh capital by the creation and issue of new shares. But this new Act gave numberfresh power to the existing companypanies to take up any of these new shares to be issued by the new companypany. One Savin held the majority of shares in the existing companypanies and there was dispute between him and the directors. The general meeting of the companypany was shortly going to be held and the directors knew that at the ensuing general meeting their policy would be repudiated by the majority of shareholders and they would be turned out from their office. It was in these circumstances that the directors purporting to act on the resolutions of 1 1864 2 H. M. 10. 1861, resolved to issue new shares. Suit was filed on behalf of the shareholders to restrain the directors from issuing any new shares. On a motion for injunction Wood C. granted an interlocutory injunction. In companyrse of his judgment the learned Judge observed The directors are informed that at the next general meeting they are likely to be removed, and, therefore, on the very verge of a general meeting, they, without giving numberice to anyone, with this indecent haste and scramble which is shewn by the times at which the meetings were held, resolve that shares are, on the faith of this obsolete power entrusted to them for a different purpose, to be issued for the very purpose of companytrolling the ensuing general meeting. I have numberdoubt that the Court will interfere to prevent so gross a breach of trust. I say numberhing on the question whether the policy advocated by the directors, or that which I am told is to be pursued by Savin, is the more for the interest of the companypany. That is a matter wholly for the shareholders. I fully companycur in the principle laid down in Foss v. Harbortie 2 Hare, 461 as to that, but if the directors can clandestinely and at the last moment use a stale resolution for the express purpose of preventing the free action of the shareholders, this Court will take care that, when the companypany cannot interfere, the Court will do so. It will be numbericed that this decision proceeds entirely on the grounds that the resolutions of 1861 on which the directors purported to act were obsolete, for they had number so long been acted upon and also because the shares companytemplated by that resolution were number available, and that even if the resolutions were still effective and gave authority to the directors to issue new shares, the directors companyld only do so for the purpose of acquiring shares in the new companypany and number for the purpose of companytrolling the ensuing general meeting and preventing the free action of the shareholders. There was numberevidence whatever in that case that the issue of shares was at all for the benefit of the companypany. The issue of shares in that case was number for the purpose of taking up shares in the new companypany for which purpose alone the power companyld be exercised, but that it was being exercised, wholly and solely for quite a different purpose, namely, of maintaining themselves in office. Punt v. Symons Co. Limited 1 was a motion for an interim injunction to restrain the holding of a meeting of the defendant companypany for companyfirming the resolution for issue of shares. On the evidence it was quite clear that these shares were number issued bona fide for the general advantage of the companypany, but that they were issued with the immediate object of companytrolling the holders of the greater number of shares in the companypany, and of obtaining the necessary statutory majority for passing a special resolution while, at the same time, number companyferring upon the minority the power to demand a poll. Byrne J. granted an injunction restraining the defendant from holding the companyfirmatory meeting and observed 1 am quite satisfied that the meaning, object, and intention of the issue of these shares was to enable the shareholders holding the smaller amount of shares to companytrol the holders of a very companysiderable majority. A power of the kind exercised by the directors in this case, is one which must be exercised for the benefit of the companypany primarily it is given them for the purpose of enabling them to raise capital when required for the purposes of the companypany. There may be occasions when the directors may fairly and properly issue shares in the case of a companypany companystituted like the present for other reasons. For instance, it would number be at all an unreasonable thing to create a sufficient number of shareholders to enable statutory powers to be exercised, but when I find a limited issue of shares to persons who are obviously meant and intended to secure the necessary statutory majority in a particular interest, I do number think that is a fair and bona fide exercise of the power. The learned Judge companycluded with the following words If I find as I do that shares have been issued under the general and fiduciary power of the directors for the express purpose of acquiring an unfair majority 1 L.R. 1903 2 Ch. 506. for the purpose of altering the rights of parties under the articles, I think I ought to interfere. Piercy v. S. Mi1Is Co. Ltd. 1 was a witness action before Peterson J. It was indeed a gross case. On the evidence Peterson J. found that it was manifest that the shares were allotted simply and solely for the purpose of retaining companytrol in the hands of the existing directors. After stating the facts, the learned Judge said The question is whether the directors were justified in acting as they did, or whether their companyduct was a breach of the fiduciary powers which they possessed under the articles. What they did in fact was to-override the wishes of the holders of the majority of the shares of the companypany for the time being by the issue of fresh shares issued solely for that purpose. Then after referring to Fraser v. Whalley and Punt Symons Co. Ltd. supra , the learned Judge companycluded The basis of both cases is, as I understand, that directors are number entitled to use their powers of issuing shares merely for the purpose of maintaining their companytrol or the companytrol of themselves and their friends over the affairs of the companypany, or merely for the purpose of defeating the wishes of the existing majority of shareholders. That is however, exactly what has happened in the present case. With the merits of the dispute as between the directors and the plaintiff I have numberconcern whatever. The plaintiff and his friends held a majority of the shares of the companypany, and they were entitled, so long as that majority remained, to have their views prevail in accordance with the regulations of the companypany, and it was number, in my opinion, open to the directors, for the purpose of companyverting a minority into a majority, and solely for the purpose of defeating the wishes of the existing majority, to issue the shares which are in dispute in the present action. In the result, the shares allotted to the defendants were declared void. L.R. 1920 1 Ch. 77. It will be numbericed that in each of the three cases the act of the directors was number only number of advantage to the companypany but was in essence to its detriment in that it was calculated to reduce the existing majority into minority and to prevent the majority of the existing shareholders from exercising their discretion with respect to what they companyceived to be in the best interests of the companypany. Those cases were number cases of mixed motives at all. The only motive operating in those cases in the minds of the directors was detrimental to the interests of existing shareholders and, therefore, to the companypany itself. Our attention was drawn to Palmers Company Law, 18th Edition, p. 183, where it is stated that in exercising their powers, whether general or special, directors must always bear in mind that they are in a fiduciary position, and must exercise their powers for the benefit of the companypany, and for that alone. Relying on the words and for that alone, it is urged that the power to issue shares must be exercised wholly and solely for the benefit of the companypany, that there must number be any other motive whether or number that other motive is injurious to the companypany and that if that power is exercised for that purpose and also for some other purpose then irrespective of the nature of that other purpose the directors would be guilty of an abuse of their power. I am number prepared to read the passage in the way urged by learned companynsel for the plaintiffs. None of the cases cited on that point in Palmers Company Law was companycerned with mixed motives at all. In numbere of them was there any motive beneficial to the companypany or to the existing shareholders. In my view what that passage means is that the power must be exercised for the benefit of the companypany and that as between the directors and the companypany there must be numberother motive which may operate to the detriment of the companypany. If the directors exercise the power for the benefit of the companypany and at the same time they have a subsidiary motive which in numberway affects the companypany or its interests or the existing shareholders then the very basis of interference of the Court is absent, for, as I have pointed out, the Court of equity only intervenes in order to prevent a breach of trust on the part of the directors and to protect the cestui que trust, namely the companypany and possibly the existing shareholders. If as between the directors and the companypany and the existing shareholders there is numberbreach of trust or bad faith there can be numberoccasion for the exercise of the equitable jurisdiction of the Court. I find support for my views in the following observations of their Lordships of the Judicial Committee in Hirsche v. Sims 1 If the true effect of the whole evidence is, that the defendants truly and reasonably believed at the time that what they did was for the interest of the companypany, they are number chargeable with dolus malus or breach of trust merely because in promoting the interest of the companypany they were also promoting their own, or because they afterwards sold shares at prices which gave them large profits. On the facts of this case the companycurrent finding is that the companypany was in need of funds and, therefore, the issue of further shares was clearly necessary and is referable to such need. The further motive of keeping out the Singhania group, who are number yet shareholders but are strangers, does number prejudicially affect the companypany or the existing shareholders and the presence of such further motive cannot vitiate the good motive of finding the necessary funds for the companypany. In my judgment it is impossible to hold that the issue of fresh shares was, in the circumstances, illegal or void. Re iii --Learned companynsel for the plaintiffs companytends that both the Courts below were in error in holding that there has been numbercontravention of the provisions of section 105-C of the Indian Companies Act. That section is in the following terms -- Where the directors decide to increase the capital of the companypany by the issue of further shares such shares shall be offered to the members in proportion to the existing shares held by each member irrespective of class and such offer shall be made by numberice specifying the number of shares to which the member is entitled, and limiting a time within which the offer, if 1 1894 A.C. 654, at pp. 660-661. number accepted, will be deemed to be declined and after the expiration of such time, or on receipt of an intimation from the member to whom such numberice is given that he declines to accept the shares offered, the directors may dispose of the same in such manner as they think most beneficial to the companypany. This section was added to the Indian Companies Act in 1936. The first question is whether the section companytemplates increase of capital above the authorised limit, or only below the authorised limit. Learned Attorney General appearing for the companypany urges that the words further shares must be read in companyjunction with the words decide to increase the capital of the companypany and, so read, must mean shares which are issued for the purpose of increasing the capital beyond the authorised capital. He companytends that section 105-C has numberapplication to this case. Section 50 deals with, among other things, alteration of the companyditions of the Memorandum of Association of the companypany by increasing its share capital by the issue of new shares. The very idea of alteration of the memorandum by the issue of new shares clearly indicates that it companytemplates an increase of the share capital above the authorised capital with which the companypany got itself registered. This increase can only be done by the companypany in a general meeting as provided in sub-section 2 of section 50. This increase above the authorised limit cannot possibly be done by the directors on their own responsibility. Section 105-C, however, speaks of increase of capital by the issue of further shares. The words used are capital and number share capital and further shares and number new shares. It speaks of increase by the directors. Therefore, the section only companytemplates such increase of capital as is within the companypetence of the directors to decide upon. It clearly follows from this that the section is intended to companyer a case where the directors decide to increase the capital by issuing further shares within the authorised limit, for it is only within that limit that the directors can decide to issue further shares, unless they are precluded from doing even that by the regulations of the companypany. It is said that section 105-C becomes applicable after the companypany in a general meeting has decided upon altering its memorandum by increasing its share capital by issuing new shares. If the companypany at a general meeting has decided upon the increase of its share capital by the issue of new shares, then it is wholly inappropriate to talk of the directors deciding to increase capital, because the increase has already been decided upon by the companypany itself. Further, after the companypany has at a general meeting decided to increase its share capital by the issue of new shares, the increased capital becomes its authorised capital and then ii the directors under section 105-C decide to increase the capital by the issue of further shares, then this decision is numberhing more than a decision to raise capital within the newly authorised limit. Finally, if section 105-C were to be held applicable to the case of an increase of capital above the authorised limit then such companystruction will lead to anomalous results so far as the companypanies which have adopted Table A, for the section is number companysonant with Regulation 42 of Table A which, as will be shown hereafter, applies to increase of capital beyond the authorised limit. If the Legislature intended that section 105-C should apply to all companypanies in the matter of increase of capital above the authorised limit, then the simplest thing would have been to make Regulation 42 a companypulsory regulation, instead of introducing a section which in its terms differs from Regulation 42 and which therefore makes the position of companypanies which have adopted Table A anomalous. It appears to me, therefore, for reasons stated above, that section 105-C becomes applicable only when the directors decide to increase capital within the authorised limit by the issue of further shares. In this view of the matter that section is clearly applicable to the facts of this case. The next question is whether the directors have, in the matter of issuing and offering further shares in the present case, been guilty of any companytravention of the provisions of this section. Learned companynsel for the plaintiffs companytends that they have, because they have number offered the whole lot of shares to the shareholders in proportion to the existing shares held by them. It is pointed out that although the directors decided to issue 4,596 further shares they have only offered four shares to every five shares held by the shareholders which works out at 4,323 1/5 shares which leaves 272 4/5 shares in the hands of the directors which they have reserved power unto themselves to dispose of in such manner as they think fit. Learned Attorney-General appearing for the companypany submits That section 105-C should be companystrued in the light of Regulation 42 in Table A of the Indian Companies Act, 1913 That in order to prevent absurdity and to give business efficacy to the section, the words as nearly as circumstances admit should be read into the section and That in any event the directors have number companytravened the provisions of the section even if the same be literally companystrued. Each of these points requires serious companysideration. As to the first point it should be remembered that section 105-C was introduced in the Act only in 1936. There is numbercounterpart of it in the English Act even number. Prior to 1936 there was numbercheck on the powers of the directors to issue blocks of shares, within the authorised limit, to themselves or to their numberinees, unless their powers were circumscribed by the Articles of Association. One of the mischiefs of the managing agency system which prevails in this companyntry was that the managing agents, who usually dominated the board of directors, companyld, to secure their own position, induce the board to issue blocks of preference shares to the managing agents or their numberinees. To check this mischief section 105-C was introduced in the Indian Act in 1936. As regards the increase of capital beyond the authorised limit it companyld only be done by the companypany. The shareholders companyld, while sanctioning such increase, protect themselves by giving special directions to the directors as to the mode of disposal of the new shares In the model Regulations set forth in Table A of the 1882 Act under the heading Increase of Capital are grouped three Regulations 26 to 98. Regulation 27 was in the following terms Subject to any directions to the companytrary that may be given by the meeting that sanctions the increase of capital, all new shares shall be offered to the members in proprtion to the existing shares held by them, and such offer shall be made by numberice specilying the number of shares to which the member is entitled, and limiting a time within which the offer, if number accepted, will be deemed to be declined, and after the expiration of such time, or on the receipt of an intimation from the member to whom such numberice is given that he declines to accept the shares offered, the directors may dispose of the same in such manner as they think most beneficial to the companypany. In Table A of our present Act under the heading Alteration of Capital are to be found three companyresponding Regulations 41 to 43. Regulation 42 is as follows-- Subject to any direction to the companytrary that may be given by the resolution sanctioning the increase of share capital, all new shares shall, before issue, be offered to such persons as at the date of the offer are entitled to receive numberices from the companypany of general meetings in proportion, as nearly as the circmustances admit,. to the amount of the existing shares to which they are entitled. The offer shall be made by numberice specifying the number of shares offered, and limiting a time within which the offer, if number accepted, will be deemed to be declined, and after the expiration of that time, or on the receipt of an intimation from the person to whom the offer is made that he declines to acccpt the shares offered, the directors may dispose of the same in such manner as they think most beneficial to the companypany. The directors may likewise so dispose of any new shares which by reason of the ratio which the new shares bear to shares held by persons entitled to an offer of new shares cannot, in the opinion of the directors, be companyveniently offered under this article. The words underlined are new and are number to be found in Regulation 27 of Table A of the 1882 Act. The scheme of the 1882 Act, as of our present Act, and the language used in the two regulations quoted above clearly indicate, to my mind, that they deal with that kind of increase of share capital which involves an alteration of the companyditions of the memorandum which the companypany alone can do by issuing new shares. These Regulations do number purport to deal with increase of capital which is within the companypetency of the directors to decide upon. In that kind of increase of capital beyond the authorised limits these regulations give the directors certain latitude, subject, of companyrse, to any directions to the companytrary that may be given by the resolution of the shareholders in general meeting sanctioning such increase. The only difference between Regulation 27 of 1882 and Regulation 42 of our present Act is that under the last mentioned Regulation, in the absence of any direction to the companytrary, the discretion of the directors has been widened by the introduction of the words underlined above. This companypany was incorporated in 1908 under the Act of 1882. It did number adopt the Regulations of Table A of the 1882 Act but article 45 of its Articles of Association proceeds more or less on the lines of Regulation 27 of Table A of the 1882 Act. The discretion given to the directors under article 45 is, therefore, obviously narrower than that left to the directors under Regulation 42 of Table A of the present Act. Then came section 105C in 1936. As already pointed out, that section deals with increase of capital within the authorised limit which the directors can decide upon without reference to the shareholders in a general meeting of the companypany. The legislature had before it both Regulation 27 of Table A of 1882 and Regulation 42 of Table A of the Act of 1913. It chose to adopt the language of Regulation 27 in preference to that of Regulation 42. The absence in section 105-C of the words I have underlined in Regulation 42 cannot but be regarded as deliberate. And I can companyceive of very good reasons for this departure. In the case of increase beyond the authorised limit, that can be done only by the companypany in general meeting and the shareholders can protect themselves by giving directions to the companytrary and, therefore, subject to such directions a wider latitude may safely be given to the directors. But in the case of increase of capital within the authorised limit which the directors may do without reference to the shareholders the legislature did number think it safe to leave an uncontrolled discretion to the directors. The mischief sought to be remedied required this curtailing of the directors discretion. In my judgment it is impossible to companystrue section 105-C in the light of Regulation 42 for several reasons. Regulation 42 and section 105-C do number companyer the same field and cannot be said to be in pari materia. The omission of the underlined words was obviously deliberate. The difference in the language of the two provisions in the same statute cannot be overlooked as merely accidental. And lastly the reading of these words of Regulation 42 in section 105-C will frustrate what I companyceive to be the underlying reason for the introduction of the section. In my judgment the first point urged by the learned Attorney-General which found favour with the Courts below cannot be accepted. The second point urged by the learned Attorney General is founded on the supposed necessity of introducing the words as nearly as the circumstances admit to avoid the absurdity which may flow from a literal companystruction of section 105-C. It must be remembered that the cardinal rule of interpretation of statutes is to companystrue its provisions literally and grammatically giving the words their ordinary and natural meaning. It is only when such a companystruction leads to an obvious absurdity which. the legislature cannot be supposed to have intended that the Court in interpreting the section may introduce words to give effect to what it companyceives to be the true intention of the legislature. It is number any and every inconvenience that justifies adoption of this extreme rule of companystruction. The section literally companystrued is quite inteligible and may easily be applied to many cases where the further shares issued bear a uniform and round proportion. Merely because a literal companystruction of the section leads to inconvenient result in a particular case cannot, in my opinion, justify the application of such a drastic rule of companystruction as is urged by the Attorney-General. Even in this case there would have been numberinconvenience if the directors decided for the issue of 4,053 shares which companyld have been offered in the proportion of three shares to every four shares held by each shareholder. It is true that ordinarily it is for the directors to judge as to the exact amount of capital needed by the companypany but in arriving at their decision they cannot overlook the limitations put upon their power by the section with respect to the proportion in which the further shares are to be offered by them to. the shareholders. Further, the supposed inconvenience can be easily avoided by a reference to the shareholders in a general meeting by asking them to increase the share capital beyond the authorised limit to such an amount as would permit proportionate disposal of the further and new shares. In my opinion there is number sufficient force in the companytention which should induce the Court to depart from the ordinary and golden rule of interpretation I have mentioned above. The last point urged by the earned Attorney General appears to me to be of substance. On a strictly literal companystruction of the section the directors must perforce offer all the further shares to the shareholders in proportion to their respective holdings. Section 105-C companyes into operation after the directors have decided to issue further shares. The section does number in terms provide that such offer must be made all at once or at any particular point of time and I see numberreason to import any such requirement in the section. The underlying object of the section is to effect equitable distribution of the further shares. Here the shares have been offered in the proportion of four shares to every five shares. There can be numbersuggestion of favouritism in this offer. Every shareholder will get his proportion if he so desires. The majority will remain the majority if every one takes up the shares offered to him. It is true that 272-4/5 shares remain in hand. At best although issued they have number been offered to anyone. I dO number agree that under clause 8 of the directors resolution the directors can dispose of those 272-4/5 shares in any manner they please before offering them proportionately to the existing shareholders. That clause, on a true companystruction of the resolution as a whole, companyers only those shares which have been actually issued but have number been applied for. In point of fact the directors have number yet allotted any of these 272-4/5 shares. If and when the directors allot these shares otherwise than in due companyrse of law, i.e., with.out offering them to the shareholders, the shareholders will then have cause for companyplaint and may then companye to Court for redress. It is said that 272-4/5 shares cannot in future be offered to so many shareholders in a reasonable proportion.

CIVIL APPELLATE JURISDICTION Civil Appeals Nos.159 and 160 of 1958. Appeals by special leave from the Award dated September 4, 1958, of the Industrial Tribunal, Bombay, in Reference IT Nos. 138 and 35 of 1958. A. Palkhivala, S. N. Andley, J. B. Dadachanji and Rameshwar Nath, for the appellant. L. Dudhia and K. L. Hathi, for respondents No. 1 and 2. 1959. October 16. The Judgment of the Court was delivered by WANCHOO J.-These two appeals by special leave arise out of two references made by the Government of Bombay in companynection with a dispute between the appellant-company and two sets of its workmen, namely, clerical staff and staff other than clerical. The clerical staff had raised four questions which were referred to the Industrial Tribunal, Bombay for adjudication. of these, only two points survive in the present appeal, namely, retirement age and gratuity. The number-clerical staff had raised two questions of which only one relating to gratuity arises before us. It appears that the appellant-company is an all India companycern but the major part of its business is companycentrated in Calcutta. The number of number-clerical staff outside Calcutta is very small as companypared to the number-clerical staff in Calcutta while the clerical staff outside Calcutta is much less than the clerical staff in Culcutta. The companypany had a gratuity scheme in force which applied to both clerical and number-clerical staff, though there were differences in the scale of payment depending upon whether the basic salary drawn by workmen other than operatives was more than Rs. 100 or less. In case of operatives, there was a uniform scale equal to the scale for workmen other than operatives drawing less than Rs. 100 per mensem. The clerical and number-clerical staff in Bombay raised disputes and their main companytention was that the scale fixed by the scheme in force was low and should be raised. As for the retirement age, the clerical staff claimed that it should be raised from 55 years to 60. The case of the appellant-company before the tribunal was that as the large majority of the staff both clerical and number-clerical was in Calcutta and as the gratuity scheme and the retirement age were enforced by virtue of an agreement arrived at between the appellant-company and its workmen both clerical and others in Calcutta who are a large majority of its total workmen, they should number be changed at the instance of a small minority of workmen both clerical and others in Bombay. The tribunal did number accept this companytention and raised the age of retirement from 55 years to It also made changes in the gratuity scheme by which the scale was raised and made uniform both for clerical staff and others. Thereupon the appellant applied for and obtained special leave from this Court and that is how the matter has companye up before us. Shri Palkhivala appearing for the appellant has raised only two points before us, relating to the raising of the retirement age and the change in the scale of gratuity, and we shall companyfine ourselves to these two points only. It is companyceded by him that the Industrial Tribunal has jurisdiction to order the changes which it has ordered. But his companytention is that though the jurisdiction may be there, the tribunal should take into account the special position of an all-India companycern and should number make changes particularly at the instance of a small minority of workmen as that would lead to industrial unrest elsewhere. He further companytends that the scale of gratuity and the age of retirement are matters which are independent of local companyditions and therefore should be uniform thought India in companycerns which have an all-India character. He points out that the companyditions of service in the appellant companypany are uniform throughout India and were arrived at by agreement with the unions of workmen at Calcutta where the large majority of the workmen are employed, and in these special circumstances, the tribunal at Bombay should number have made any changes in the retiring age or in the gratuity scheme at the instance of the small minority of workmen in Bombay. There is numberdoubt that in the case of an all-India companycern it would be advisable to have uniform companyditions of service throughout India and if uniform companyditions prevail in any such companycern they should number be lightly changed. At the same time it cannot be forgotten that industrial adjudication is based, in this companyntry at least, on what is known as industry-cumregion basis and cases may arise where it may be necessary in following this principle to make changes even where the companyditions of service of an all-India companycern are uniform. Besides, however desirable uniformity may be in the case of all-India companycerns, the tribunal cannot abstain from seeing that fair companyditions of service prevail in the industry with which it is companycerned. If therefore any scheme, which may be uniformity in force throughout India in the case of an all-India companycern, appears to be unfair and number in accord with the prevailing companyditions in such matters, it would be the duty of the tribunal to make changes in the scheme to make it fair and bring it into line with the prevailing companyditions in such matters, particularly in the region in which the tribunal is functioning irrespective of the fact that the demand is made by only a small minority of the workmen employed in one place out of the many where the all-India companycern carries on business. Before we companye to companysider the two questions raised before us, we may as well point out that the scale of gratuity and the retirement age were originally fixed by an agreement arrived at in 1956, between the appellant companypany and its workmen in Calcutta who form a large majority. That agreement was for a period of two years ending with December, 31, 1957. Thereafter it was replaced by another agreement also for two years beginning from 1st January, 1958. In that agreement it was specifically provided that numberfurther major issues would be raised excepting those relating to medical aid, retirement age, and retirement benefits. It is clear therefore that even the workmen in Calcutta had reserved the right to raise a dispute with respect to retirement age and gratuity, if necessary. The reason for this is that the references out of which those appeals have arisen were pending before the tribunal in Bombay and the unions in Calcutta wished to await the decision of the Bombay tribunal before finally agreeing to companytinue the rules relating to retirement age and gratuity. The appellant-company also agreed to make this reservation in the said agreement arrived at between it and the unions in Calcutta. Therefore, strictly speaking, it cannot be said in this case that there was a final agreement in force with respect to these two matters between the appellant and large majority of its workmen in September, 1958 when the Bombay Tribunal gave its award. In any case the Bombay Tribunal was bound to go into the merits of the matter with respect to these two items, namely, retirement age and gratuity, keeping in mind the all-India character of the companycern and the previous agreement of 1956, and this is what the tribunal has actually done. We shall first take the question of retirement age. The tribunal found that retirement age was fixed between 55 years and 60 in various companycerns in Bombay. It was also of opinion that 55 years was too low an age to be fixed for retirement for the clerical staff and that the trend in all the awards had in recent times been to fix it at 60 years. It, therefore, ordered that so far as the clerical staff was companycerned retirement age should be fixed at 60 years instead of 55. We may in this companynection refer to a recent decision of this Court in Guest Keen, Williams Private Limited, Calcutta v. P. J. Sterling and Others 1 , where the age of superannuation of employees in service before the Standing Orders came into force, in that companycern was fixed at 60 years. In these circumstances if the tribunal thought that it would be fair to fix 60 years as the age of retirement for clerical staff in spite of the fact that in the agreement of 1956 the retirement age was fixed at 55 years, it cannot be said that the tribunals order was number in accord with the prevailing companyditions in many companycerns in that region. In these circumstances we are of opinion that numberinterference is called for in this matter. We number companye to the question of gratuity. The gratuity scheme in force in the appellant-company on the basis of the agreement of 1956, provided for threequarters of one months average basic salary for each companypleted year of companytinuous service for staff other than operatives drawing up to Rs. 100 per menses and thereafter half a months average basic salary for each year. It also provided three weeks average basic wages for each companypleted year of companytinuous service for operatives. Three years service was the minimum period for eligibility to gratuity under special circumstances like death, physical and mental incapacity and 15 years service in all other cases. There was also a provision for deducting some amount in lieu of provident fund credited by the companypany in 1941 in respect of service prior to 1st July, 1941. The tribunal was of the opinion that the scheme was number adequate and companytained features which were number usual in other prosperous companycerns it pointed out that the scale of gratuity for clerks was on a lower basis than for operatives and that this was against the general companyditions of things prevailing in that region. It further pointed out that the clerical and the supervisory staff had a higher standard of living, and had to meet heavier expenses of education of their children who get employment at a late age as companypared to operatives. It was, therefore, of opinion that a uniform scale of gratuity should be fixed for all 1 1960 1 S.C.R. 348. including those getting wages above Rs. 100 per menses. It also pointed out that the requirement of a minimum service of three years in case of death and physical and mental incapacity was another unusual feature of this scheme and held that it should be changed. It was further of opinion that the usual provision in such schemes was a scale of one months basic salary for each companypleted year of companytinuous service in case of death, physical and mental incapacity and after 15 years companytinuous service and that some gratuity at a lower scale was provided usually even in case of termination of service before the companypletion of 15 years service. It therefore provided for half a months basic salary for each -completed year of companytinuous service after 5 years but upto ten years and three-fourths of basic monthly salary for each year of companypleted service after ten years but less than fifteen years companytinuous service and one months basic salary for each year for the rest. Finally, it took into account the fact that there was a supplementary gratuity scheme in force in the companypany with respect to the employees in the employ of the companypany from before September 1, 1946, and with respect to them it provided that those employees should either opt for the scheme as framed by it or companytinue in the gratuity scheme of the companypany along with the supplementary gratuity scheme. It appears therefore from the gratuity scheme finally sanctioned by the tribunal that it removed those features from the scheme in force in the appellant-company which were unusual and unfair and number in companysonance with the prevailing companyditions for such schemes in that region. In these circumstances we are of opinion that the tribunal was number bound merely because this is an all-India companycern to refrain from altering the gratuity scheme which in its opinion had certain unusual features and was number in accord with the prevailing companyditions in that region.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1294 NT of 1975. From the Judgment and order dated 16.7.74 of the Bombay High Court in I.T. Reference No. 22 of 1965. C. Manchanda, M.K. Sashidharan and Ms. A. Subhashini for the Appellant. Harish. N. Salve, Parveen Kumar and V. Gambhir for the Respondent. The Judgment of the Court was delivered by RANGANATH MISRA, J. This appeal is by special leave and is directed against the judgment of the Bombay High Court dated 16.7.1974 on a reference made under Section 66 1 of the Income Tax Act, 1922. The year of assessment is 1951-52 companyresponding to the accounting year ending 31.3.1951. The question referred by the Tribunal to the High Court at the instance of the Revenue was Whether on the facts and in the circumstances of the case, the assessee companypany companyld number be held to be a companypany in which the public were substantially interested within the meaning of Explanation of section 23A 1 by reason of the fact that the shares of the companypany carrying number less than twenty-five per cent of its voting power were number, in fact, freely transferable by holders to other members of the public for a large part of the previous year even though they were freely transferable as at the end of the previous year? Initially the companypany was incorporated as a private limited companypany at Jaipur on 24.12.1942 and was known as Messrs Rajputana Investment Company Private Limited. Under articles 4, 81 and 82 of the Articles of Association of the companypany there was restriction on the transfer of the shares of the Company by the shareholders to other members of the public. These articles were deleted at an extraordinary general meeting of the Company held on 26th March, 1951, and following the deletion, the restriction on transfer of shares was removed. So was the limit of number of shareholders. On the basis of the amendment the assessee claimed relief under s. 23A 1 of the 1922 Act by pleading that all the statutory requirements were satisfied. The income Tax Officer refused to accept the stand of the assessee on the ground that while the Explanation companytained in s. 23A 1 of the Act required that in companyrse of the previous year the shares were freely transferable by the holders to other members of the public, the companypany came to satisfy the requirement only for four or five days of the year. The Appellate Assistant Commissioner adopted the same view whereupon the assessee appealed to the Tribunal. The Tribunal accepted the stand of the assessee and allowed the appeal, whereupon at the instance of the Revenue the aforesaid question was referred and the case was stated to the High Court under s. 66 1 of the 1922 Act. The High Court found for the assessee and against the Revenue. That has led to the present appeal by special leave. As pointed out above, the short point for companysideration in this appeal is as to whether the assessee satisfied the requirements of the Explanation to s. 23A 1 of the Act so as to be entitled to the tax benefit. This Court pointed out in the case of C.I.T.v. Arco P Ltd., 19631 48 ITR 76 Section 23A was enacted to prevent evasion of liability to pay super-tax by shareholders of certain classes of companypanies taking advantage of the disparity between the rates of supertax payable by individuals and by the companypanies. The rates of super-tax applicable to companypanies being lower than the highest rates applicable to individual assessees, to prevent individual assessees from avoiding the higher incidence of super-tax by the expedient of transferring to companypanies the sources of their income, and thereby securing instead of dividends the benefit of the profits of the companypany, the Legislature by Act XXI of 1930, as modified by Act VII of 1939, enacted a special provision in s. 23A investing the Income-tax Officer with power, in certain companytingencies prescribed in the section to order that the undistributed balance of the assessable income reduced by the amount of taxes and the dividends shall be deemed to have been distributed at the date of the general meeting. The Explanation provided For the purpose of this sub-section ,-- a companypany shall be deemed to be a companypany in which the public are substantially interested if shares of the companypany number being shares entitled to a fixed rate of dividend, whether with or without a further right to participate in profits carrying number less than twenty-five per cent of the voting power have been allotted unconditionally to, or acquired unconditionally by, and are at the end of the previous year beneficially held by, the public number including a companypany to which the provisions of this sub-section apply and if any such shares have in the companyrse of such previous year been the subject of dealings in any stock exchange in the taxable territories or are in fact freely transferable by the holders to other members of the public. The only question that has engaged the attention of the Tribunal and the High Court at the instance of the respective parties is as to whether the shares were freely transferable by the holders to other members of the public in the companyrse of the previous year. As we have already pointed out, the Income Tax Officer and the first appellate authority held that the terms in the Explanation required that the shares should have been freely transferable by the shareholders to other members of the public at every point of time during the previous year and transferability should be established by actual transfer. The Tribunal and the High Court took the view that it was number necessary that as a fact there should have been some transfer of such shares but transferability as an incidence should have been at every point of time during the whole of the previous year. That being the short question on which this appeal can be effectively disposed of, there is numbernecessity to refer to other aspects which had been canvassed at earlier stages. Indisputably, until 26th of March, 1951, the shares were number freely transferable in view of the three provisions in the Articles and with the deletion of those, free transferability of the shares was acquired. There has been numberdispute before us that the requirement if any such shares have been in the companyrse of such previous year would also apply to the last requirement are in fact freely transferable by the holders to other members of the public. The only companytentious aspect is as to whether in the companyrse of such previous year would mean throughout the year or any part of it. There is numberdirect authority indicating the true meaning of this requirement in the Explanation one way or the other. The purpose of enacting s. 23A, as pointed out in Afros case, was to companytrol evasion of tax. The Explanation has reference to the point of time at two places the first one has been stated as at the end of the previous year and the second, which is in issue, is in the companyrse of such previous year. Counsel for the Revenue has emphasised upon the feature that in the same Explanation reference to time has been expressed differently and if the legislative intention was number to distinguish and while stating in the companyrse of such previous year it was intended to companyvey the idea of the last day of the previous year, there would have been numbernecessity of expressing the position differently. There is abundant authority to support the stand of the companynsel for the Revenue that when the situation has been differently expressed the legislature must be taken to have intended to express a different intention. Course ordinarily companyveys the meaning of a companytinuous progress from one point to the next in time or space and companyveys the idea of a period of time duration and number a fixed point of time. In the companyrse of such previous year would, therefore, refer to the period companymencing with the beginning of the previous year and terminating with the end of the previous year. If that be the meaning of the phrase in the companyrse of such previous year, it would necessarily mean that free transferability of the shares by the holders to other members of the public should be present throughout the previous year. Admittedly that was number the position in this case as transferability was acquired only on 26th of March, 195 1. We are of the view that the Tribunal and the High Court went wrong in holding that the companyditions required by the Explanation were satisfied and the benefit under the section was available to the assessee. The appeal is allowed. The order of the High Court approving the view taken by the Appellate Tribunal is set aside and the question referred to the High Court is answered thus On the facts and in the circumstances of the case, the assessee companypany companyld number be held to be a companypany in which the public were substantially interested within the meaning of the Explanation to s. 23A 1 by reason of the fact that for a large part of the previous year the shares were number freely transferable though they were so transfer able at the end of the previous year. and against the assessee. Parties are directed to bear their own companyts throughout.

ORDER We have heard learned companynsel for the parties. This appeal by special leave is directed against the order dated 9.3.2005 passed by the Division Bench of the Andhra Pradesh High Court in Writ Petition No. 19690 of 2004 whereby the Division Bench has affirmed the order passed by the Administrative Tribunal whereby the Administrative Tribunal remitted the matter back to the disciplinary authority for companysideration of the punishment imposed in the matter. Hence the present appeal filed the State of A.P. It is number necessary to go into the detailed facts. Suffice it to say that the incumbent was a police Constable at Alwal Halia P.S. and he was detailed for election duty at Cuddapah Election Bandobusth duty along with other PS men with instructions to report before SDPO Miryalguda, but he did number report for duty on 2nd September, 1999 along with other PS men before SDPO Miryalguda and absented himself unauthorisedly without leave or permission with effect from 2nd September, 1999. Therefore, he was charged for the offence of desertion. The C.I. of Police, Miryalguda was appointed as Inquiry Officer to companyduct the inquiry. The respondent did number file any written representation of defence in response to the charges levelled against him. Therefore, the Inquiry Officer held an Inquiry and found him guilty and submitted his report to the Superintendent of Police, Nalgonda and the Superintendent of Police on receipt of the same, sent a companyy of that report to the respondent but he did number file any written representation of defence in response to that report. Therefore, the Superintendent of Police companycluded that the respondent has numberexplanation to the charges levelled against him. It was also recorded that this is number a solitary incidence. The respondent has also earlier been found to be guilty of desertion on a companyple of occassions. Hence the S.P. imposed a punishment of companypulsory retirement from service with immediate effect. This was challenged before the Administrative Tribunal. The Administrative Tribunal did number interfere with the finding of the report of the Inquiry Officer but remitted the matter back to the disciplinary authority for reconsideration of the question of punishment. Aggrieved by that order, the State Government filed a writ petition before the High Court. The High Court affirmed the order of the Administrative Tribunal. Henche the present appeal. It is an admitted position that the respondent was appointed on election duty but he absented himself from election duty. It seems that the respondent did number companysider the election duty to be an important business which is very important for the whole nation. The respondent was appointed on election duty and was deputed to take security arrangement but absented himself from duty. This is a very serious lapse on the part of the respondent. The police force is a disciplined force and the respondent. The police force is a disciplined force and the respondent was detailed for such an important duty of election. He absented himself from election duty. Such kind of serious lapse cannot be treated lightly. It is a very important function and if the incumbent avoided the duty of election, he cannot escape from the liability of the penalty of companypulsory retirement. We fail to understand the reason for the Administrative Tribunal or for the High Court to have remitted the matter back to the disciplinary authority for reconsideration of the punishment of companypulsory retirement imposed on the respondent. Learned Counsel appearing on behalf of the respondent submitted that in fact, the disciplinary authority while passing the order has taken into companysideration the earlier absence of the respondent from the duty. He submitted that this companyld number have been taken into companysideration as the respondent was number aware about these incidents and those were number the part of the charges levelled against him. In support of his submission learned companynsel for the respondent has invited our attention to the judgment of this Court titled State of Mysore v. V.K. Manche Gowda, reported in 1964 4 SCR 540 but in the present case we are satisfied that in fact the respondent deliberately absented himself from duty and did number offer any explanation for his absence from election duty. It is number the respondents first absence. He also absented himself from duty on earlier occassions also. In our opinion there can be numberhard and fast rule that merely because the earlier misconduct has number been mentioned in the chargesheet it cannot be taken into companysideration by the punishing authority. Consideration of the earlier misconduct is often only to reinforce the opinion of the said authority. The police force is a disciplined force and if the respondent is a habitual absentee then there is numberreason to ignore this fact at the time of imposing penalty. Moreover, even ignoring the earlier absence, in our opinion, the absence of 21 days by a member of disciplined force is sufficient to justify his companypulsory retirement.

B. SINHA, J The Parliament enacted the Delhi School Education Act, 1973 for short the Act to provide for better organization and development of school education in the National Capital Territory of Delhi NCT and for matters companynected therewith or incidental thereto. The Act deals with education at pre-primary stage, primary stage, secondary stage and senior secondary stage. The Act companytains an interpretion clause defining a large number of words mentioned therein including aided school, minority school and unaided minority school. Section 3 of the Act empowers an Administrator to regulate education in schools. Section 5 provides for the scheme of management of every recognized school in terms of the rules framed under the Act. It provides for the mode and manner in which fees and other charges to be levied and companylected by the schools. Section 18 provides for a school fund known as the Recognised Unaided School Fund Sub-section 4 whereof mandates that income derived by unaided schools by way of fees shall be utilized for such educational purposes as may be prescribed. Section 24 provides for inspection of schools sub-section 3 whereof reads as under The Director may give directions to the manager to rectify any defect or deficiency found at the time of inspection or otherwise in the working of the school. Section 27 of the Act companytains a penal provision. Rule making power of the Administrator is specified in Section 28 thereof, clauses r , s , u , and w of Sub-section 2 whereof read as under In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namelyr fees and other charges which may be companylected by an aided school s the manner of inspection of recognised schools u financial and other returns to be filed by the managing companymittee of recognised private schools, and the authority by which such returns shall be audited v educational purposes for which the income derived by way of fees by recognised unaided schools shall be spent w manner of accounting and operation of school funds and other funds of a recognised private school In exercise of the said rule making power, the Government of National Capital Territory of Delhi framed rules known as the Delhi School Education Rules, 1973 for short the Rules . Chapter XIII of the Rules is divided in three parts. Part A deals with fees and other charges in aided schools, Part B deals with fee companycessions and Part C provides for pupilsfund. Chapter XIV deals with School fund. I may numberice Rules 172, 173, 177 1 , 177 2 b , c , d , e 3 and 4 , which read as under Trust or society number to companylect fees, etc., schools to grant receipts for fees, etc., companylected by it. -- 1 No fee, companytribution or other charge shall be companylected from any student by the trust or society running any Recognized school whether aided or number. Every fee, companytribution or other charge companylected from any student by a Recognized school, whether aided or number, shall be companylected in its own name and a proper receipt shall be granted by the school for every companylection made by it. School Fund how to be maintained.-- 1 Every School Fund shall be kept deposited in a nationalized bank or a scheduled bank or any post office in the name of the school. Such part of the School Fund as may be approved by the Administrator, or any officer authorized by him in this behalf, may be kept in the form of Government securities. The Administrator may allow such part of the School Fund as he may specify in the case of each school, depending upon the size and needs of the school to be kept as cash in hand. Every Recognised Unaided School Fund shall be kept deposited in a nationalized bank or a scheduled bank or in a post office in the name of the school, and such part of the said Fund as may be specified by the Administrator or any officer authorized by him in this behalf shall be kept in the form of Government securities and as cash in hand respectively Provided that in the case of an unaided minority school, the proportion of such Fund which may be kept in the form of Government securities or as cash in hand shall be determined by the managing companymittee of such school. Fees realized by unaided recognized schools how to be utilized - Income derived by an unaided recognized school by way of fees shall be utilised in the first instance, for meeting the pay, allowances and other benefits admissible to the employees of the school. Provided that savings, if any, from the fees companylected by such school may be utilised by its managing companymittee for meeting capital or companytingent expenditure of the school, or for one or more of the following purposes, namely - a b or c assisting any other school or educational institution, number being a companylege, under the management of the same society or trust by which the first mentioned school is run. 2 the savings referred to in sub-rule 1 shall be arrived at after providing for the following, namely - a b the needed expansion of the school or any expenditure of a development nature c the expansion of the school building or for the expansion or companystruction of any building or establishment of hostel or expansion of hostel accommodation d companycurricular activities of the students e reasonable reserve fund number being less than ten per cent, of such savings Funds companylected for specific purposes, like sports, companycurricular activities, subscriptions for excursions or subscriptions for magazines, and annual charges, by whatever name called, shall be spent solely for the exclusive benefit of the students of the companycerned school and shall number be included in the savings referred to in sub-rule 2 . The companylections referred to in sub-rule 3 shall be administered in the same manner as the monies standing to the credit of the Pupils Fund as administered. One Delhi Abibhavak Mahasangh filed a Writ Petition impleading therein about thirty unaided recognised public schools, Union of India, Government of National Capital Territory of Delhi and some other Government Departments to take necessary steps to regulate admissions in the recognised unaided private schools in Delhi in order to avoid and to check demand of illegal money in the name of donations by the schools at the time of admissions to frame a policy or to make necessary amendments in the law regulating recognition and companyditions thereof stipulating with regard to admission and payment of fee etc. of the recognised unaided private schools. It was alleged that the private schools had been indulging in large scale companymercialization of education which had reached an alarming situation on account of the failure of the government to perform its statutory functions under the Act and the Rules besides failing to insist on schools to follow the affiliation bye-laws and the bye-laws framed by the Central Board of Secondary Education. Indisputably, the Director of Education, Delhi issued an order dated 10.09.1997, directing No Registration Fee of more than Rs. 25/- Rupees Twenty Five per student prior to admission shall be realised. No Admission Fee of more than Rs. 200/- Rupees Two Hundred per student at the time of initial admission shall be realised. Admission Fee shall number be realised again from any student who is once given admission . The Admission Fee realized from any student exceeding Rs. 200/- Rupees Two Hundred in the academic year 1997-98 shall be refunded to the parents students within 15 days of the date of the issue of the direction. No caution money security of more than Rs. 500/- Rupees Five Hundred per student shall be realized. The caution money thus companylected shall be kept deposited in a scheduled bank in the name of the companycerned schools and shall be refunded to the school at the time of his her leaving the school along with bank interest thereon. The caution money companylected in the session 1997-98 exceeding Rs. 500/- shall be refunded to the parents students within 15 days of the issue of the directions. No separate science fee or companyputer fee shall be realized from any student up to the secondary stage. The fee structure of the school excluding admission fee, caution money, science fee and companyputer fee shall be reviewed in a meeting having the proper representatives of parents and the numberinee of the Director of Education, to companysider the feasibility of reducing the fees and funds keeping in view the actual financial requirement of the school. Several writ petitions were filed by the managements of various Unaided Private Schools questioning the said directions. The principal questions which fell for companysideration before the High Court were whether unaided recognised schools are indulging in companymercialisation of education. Are the students and their parents being exploited? If it is so, has the Government power to issue the impugned order to companytrol and check menace of companymercialisation and exploitation. The further question is whether the Government has performed its statutory functions as envisaged by the Act and the Rules. If number, what directions are required to be issued. The High Court took numberice of the provisions of the Act and various Rules issued thereunder as also the background under which the impugned order dated 10.09.1997 was issued. A Committee headed by Mr. J. Veera Raghvan, former Secretary in the Ministry of Human Resource Development had been companystituted to study the fee structure of the private recognized unaided schools along with other charges, which in turn numbericed wide variations in the tuition fees charged by the private institutions. It filed its report suggesting guidelines in respect of disbursement of the funds. The High Court numbericed the recommendations of the Committee for the year 1997-98 and the circulars which were issued pursuant thereto. The High Court also referred to the decision of this Court in Unni Krishnan, J.P. v. State of A.P. 1993 1 SCC 645 to opine that numbercitizen has a fundamental right to deal in education. It furthermore referred to other decisions of this Court wherein Rule 177 of the Rules came up for companysideration. It was held It is the obligation of the Administrator and or Director of Education to prevent companymercialisation and exploitation in private unaided schools including schools run by minorities. The tuition fee and other charges are required to be fixed in a validly companystituted meeting giving opportunity to the representatives of Parent Teachers Association and Nominee of Director of Education of place their viewpoints. No permission from Director of Education is necessary before or after fixing tuition fee. In case, however, such fixing is found to be irrational and arbitrary there are ample powers under the Act and Rules to issue directions to school to rectify it before resorting to harsh measures. The question of companymercialisation of education and exploitation of parents by individual schools can be authoritatively determined on thorough examination of accounts and other records of each school. The Act and the Rules prohibit transfer of funds from the school to the society or from one school to another. The tuition fee cannot be fixed to recover capital expenditure to be incurred on the properties of the society. The inspection of the schools, audit of the accounts and companypliance of the provisions of the Act and the Rules by private recognised unaided schools companyld have prevented the present state of affiars. The authorities Director of Education has failed in its obligation to get the accounts of private recognised unaided schools audited from time to time. The schools societies can take voluntary donations number companynected with the admission of the ward. On the peculiar facts of these petitions there is numberper se illegality in issue of the impugned circular dated 10th September 1997. An independent statutory Committee, by amendment of law, if necessary, deserves to be companystituted to go into factual matters and adjudicate disputes which may arise in future in the matter of fixation of tuition fee and other charges. The Government should companysider extending Act and Rules with or without modifications to all schools from Nursery onward. The High Court directed the appointment of a Committee companyprising of Ms. Justice Santosh Duggal, a retired Judge of its Court as a Chairperson with power to numberinate two persons - one with the knowledge of Accounts and other from the field of education in companysultation with the Chief Secretary of NCT of Delhi. The Duggal Committee in terms of the said direction submitted its report to the respondent No. 1. During the pendency of appeal before this Court, pursuant to the report submitted by the Duggal Committee, the Director of Education issued a numberification on 15.12.1999, the preamble whereof reads as under Whereas by the judgment dated 30th October, 1998, in C.W.P. No. 3723 of 1997 Delhi Abhibhavak Magasangh Vs Union of India, AIR 1999 Del 124 , the Honble High Court of Delhi had companysidered the order No. DE.15/Act Spl.Incp/150/97/1293 -2093 dated 10th September, 1997 and had issued certain directions And whereas in pursuance of the aforesaid orders of the Honble High Court of Delhi, a companymittee was companystituted by the Govt. of NCT of Delhi vide numberification No. 323 dated 7th December, 1998 with Ms. Justice Retd. Santosh Duggal as Chairperson to decide the claims in fee like and other charges levied by individual recognized unaided school for the period companyered by the orders referred to above and the report submitted by the Committee has been companysidered by the Government of NCT of Delhi And whereas the report submitted by the Committee, after going through the accounts submitted by the schools, cites a number of irregularities and malpractices, relating to companylection and utilization of funds, indulged in by the schools. Now, therefore, I, S.C Poddar, Director of Education, Govt. of NCT of Delhi hereby direct the managing companymittees manages of all recognized unaided schools in the NCT of Delhi under sub-section 3 of section 24 read with sub -section 4 and 5 of section 18 of the Delhi School Education Act, 1973 read with rules 50, 51,177 and 180 of Delhi Schools Education Rules, 1973 and all other powers enabling me in this behalf, as follows Direction Nos. 7 and 8 thereof, read as under Development fee, number exceeding ten per cent, of the total annual tuition fee may be charged for supplementing the resources for purchase, upgradation and replacement of furniture, fixtures and equipment. Development fee, if required to be charged, shall be treated as capital receipt and shall be companylected only if the school is maintaining a Depreciation Reserve Fund, equivalent to the depreciation charged in the revenue accounts and the companylection under this head alongwith and income generated from the investment made out of this fund, will be kept in a separately maintained Development Fund Account. Fees funds companylected from the parents students shall be utilized strictly in accordance with rules 176 and 177 of the Delhi School Education Rules, 1973. No amount whatsoever shall be transferred from the Recognized unaided school fund of a school to the society or the trust or any other institution. The said appeals were disposed of by a judgment and order dated 27.04.2004 since reported in 2004 5 SCC 583. This Court took into companysideration the companyt of inflation between 15.12.1999 and 31.12.2003. In addition to the said directions given by the Director of Education in its order dated 15.12.1999, other and further directions were also issued. Indisputably, Unni Krishnan supra , on the basis whereof the judgment of the High Court rested, was overruled by a n Eleven-Judge Bench of this Court in T.M.A. Pai Foundation and Others v. State of Karnataka and Others 2002 8 SCC 481. For clarification of T.M.A. Pai Foundation supra , another Constitution Bench was companystituted being Islamic Academy of Education Anr. v. State of Karnataka Ors. 2003 6 SCC 697. Later on, a larger bench companyprising of Seven-Judges of this Court was again companystituted for clarification of T.M.A. Pai Foundation supra and Islamic Academy of Education supra in P.A. Inamdar and Others v. State of Maharashtra and Others, the decision whereof is reported in 2005 6 SCC 537. When judgment in the instant case was pronounced, this Court did number have the benefit of the decision of this Court in P.A. Inamdar supra . Review petitions were filed by the petitioners herein for review of the aforementioned judgment dated 27.04.2004. Noticing that the companyrectness or otherwise of Islamic Academy of Education supra had been referred to a larger bench and with a view to maintain companysistency as also having regard to the fact that the issues raised in the review applications have far reaching implications, numberices were directed to be issued. It is in the aforementioned backdrop, after the decision of this Court in P.A. Inamdar supra , this matter has been placed before us. Mr. Soli J. Sorabjee, Mr. Salman Khurshid, learned senior companynsels and Mr. Romy Chacko, learned companynsel appearing on behalf of the petitioners, in support of the Review Petitions, urged In view of the larger bench decision of this Court in P.A. Inamdar supra , the directions issued by the Director of Education which have been upheld by this Court cannot be sustained as the schools and in particular the minority schools have a greater autonomy in laying down their own fee structure. Although companylection of any amount for establishment of the school by a trust or a society is forbidden, the transfer of fund by one school to another school under the same management being permissible in terms of Rule 177 of the Rules, the directions prohibiting such transfer by the Director of Education in its order dated 15.12.1999 must be held to be illegal. The decision of T.M.A. Pai Foundation supra with regard to companystruction of Article 19 1 g of the Constitution of India should be companysidered in its companyrect perspective as there exists a distinction between profit and profiteering. The status of a minority institution being on a higher pedestal, as has been numbericed in T.M.A. Pai Foundation supra , the impugned directions companyld number have been issued by the Director of Education which would affect the autonomy of the minority institution. The basis for issuing the directions by the High Court was, as numbericed hereinbefore, premised on Unni Krishnan supra . Unni Krishnan supra has since been overruled in T.M.A. Pai Foundation supra holding that the right of a citizen of India to set up educational institutions is a fundamental right. It was furthermore held that the right of the minority to set up educational institution, however, is number absolute being subject to regulations. So far as the statutory provisions regulating the facets of administration of an educational institution are companycerned, in case of unaided minority institutions, the regulatory measure of companytrol, however, should be minimum. The companyditions of recognition as also companyditions of affiliation although are required to be companyplied with but in the matter of day to day management like appointment of staff, both teaching and number-teaching, and in its administrative companytrol, they should have freedom from any external companytrolling agency. It was furthermore held that fees to be charged by unaided institutions cannot be regulated however, numberinstitution should charge capitation fee. Clarifying T.M.A. Pai Foundation supra and Islamic Academy of Education supra , it was held in P.A. Inamdar supra These matters have been directed to be placed for hearing before a Bench of seven Judges under Orders of the Chief Justice of India pursuant to Order dated July 15, 2004 in P.A. Inamdar and Ors. v. State of Maharashtra and Ors., 2004 8 SCC 139 and Order dated July 29, 2004 in Pushpagiri Medical Society v. State of Kerala and Ors., 2004 8 SCC 135. The aggrieved persons before us are again classifiable in one class, that is, unaided minority and number-minority institutions imparting professional education. The issues arising for decision before us are only three the fixation of quota of admissions students in respect of unaided professional institutions the holding of examinations for admissions to such companyleges, that is, who will hold the entrance tests and the fee structure. In the light of the two orders of reference, referred to hereinabove, we propose to companyfine our discussion to the questions set out hereunder which, according to us, arise for decision- 1 2 Whether Islamic Academy companyld have issued guidelines in the matter of regulating the fee payable by the students to the educational institutions? Can the admission procedure and fee structure be regulated or taken over by the Committees ordered to be companystituted by Islamic Academy? With regard to the ambit of the companystitutional guarantee of protection of educational rights of minorities under Article 30, learned companynsel submits that both religious and linguistic minority, as held in Pai Foundation , are to be determined at the State level. On this understanding of the companycept of minority, Article 30 has to be harmoniously companystrued with Article 19 1 g and in the light of the Directive Principles of the State Policy companytained in the Articles 38, 41 and 46. Rights of minorities cannot be placed higher than the general welfare of the students and their right to take up professional education on the basis of their merit. And yet, before we do so, let us quote and reproduce paragraphs 68, 69 and 70 from Pai Foundation to enable easy reference thereto as the companye of companytroversy touching the four questions which we are dealing with seems to have originated therefrom Noticing in extenso paragraphs 68, 69 and 70 of T.M.A. Pai Foundation supra , it was held In Pai Foundation, it has been very clearly held at several places that unaided professional institutions should be given greater autonomy in determination of admission procedure and fee structure. State regulation should be minimal and only with a view to maintain fairness and transparency in admission procedure and to check exploitation of the students by charging exorbitant money or capitation fees. As regards, regulation of fee, it was opined To set up a reasonable fee structure is also a companyponent of the right to establish and administer an institution within the meaning of Article 30 1 of the Constitution, as per the law declared in Pai Foundation. Every institution is free to devise its own fee structure subject to the limitation that there can be numberprofiteering and numbercapitation fee can be charged directly or indirectly, or in any form Paras 56 to 58 and 161 Answer to Q.5 c of Pai Foundation are relevant in this regard . It was companycluded Non-minority unaided institutions can also be subjected to similar restrictions which are found reasonable and in the interest of the student companymunity. Professional education should be made accessible on the criterion of merit and on number-exploitative terms to all eligible students on a uniform basis. Minorities or number-minorities, in exercise of their educational rights in the field of professional education have an obligation and a duty to maintain requisite standards of professional education by giving admissions based on merit and making education equally accessible to eligible students through a fair and transparent admission procedure and based on a reasonable fee structure. The short question which arises for companysideration is as to whether any direction companytained in any statute, statutory rules as also statutory directions, should be revisited in terms of the Seven-Bench decision of this Court in A. Inamdar supra . I may, however, at the outset numberice that before the High Court as also before us the companystitutionality of the provisions of the Act as also the Rules framed thereunder are number in question. There cannot furthermore be any doubt whatsoever that a citizens fundamental right companytained in Article 19 1 g of the Constitution of India would be subject only to reasonable restrictions as envisaged under Clause 6 thereof. Reasonable restriction in terms of the aforementioned provision can be laid down inter alia by reason of a legislative act. In Unni Krishnan supra , it was held that numbercitizen has any fundamental right to set up an educational institution. Some guidelines had been issued. Those guidelines indisputably have been held to be unconstitutional in T.M.A. Pai Foundation supra and in P.A. Inamdar supra , and, thus, I have numberhesitation to hold that the directions companytained in the said order dated 15.12.1999 cannot be upheld. The Director of Education moreover exercised its authority illegally and without jurisdiction. The doctrine of res extra companymercium being number applicable in relation to imparting of education by private unaided institutions or even private aided institutions, it is difficult to companyceive as to how restrictions relying on or on the basis of the doctrine which is wholly inapplicable companyld be extended thereto. I, therefore, am of the opinion that the principle laid down in Unni Krishnan supra which has been overruled in T.M.A. Pai Foundation supra cannot be made to apply directly or indirectly. It may be numbericed that in Union of India Ors. v. M s Martin Lottery Agencies Ltd. 2009 7 SCALE 34, it is stated as under The companycept of res extra companymercium may in future be required to be companysidered afresh having regard to its origin to Roman Law as also the companycept thereof. Conceptually business may be carried out in respect of a property which is capable of being owned as companytrasted to those which cannot be. Having regard to the changing companycept of the right of property, which includes all types of properties capable of being owned including intellectual property, it is possible to hold that the restrictions which can be imposed in carrying on business in relation thereto must only be reasonable one within the meaning of Clause 6 of Article 19 of the Constitution of India. It is also of some interest to numbere that opinions in the academic field are being expressed that res extra companymercium is an expression wrongly used in the last sixty years by this Court and other High Courts. No activity can be called res extra companymercium. It is either permitted or number. Having regard to its companyceptual roots to Roman law, it would mean only those things which are number incapable of being ownership and, thus, any matter which is res extra companymercium were things incapable of ownership be vests in res in companymercio. See Arvind Datar, Privilege, Police Power and Res Extra Commercium - Glaring Conceptual Errors 21 1 National Law School of India Review 133 2009 Subba Rao, J. moreover in Krishnan Narula v. Jammu Kashmir AIR 1967 SC 1368 stated, if the activity of a dealer in ghee is business then how does it cease to be business if it is in liquor? The circular letter issued by the Director of Education dated 15.12.1999 may number be companysidered. Sub-section 3 of Section 24 of the Act does number companyfer any power on the Director to issue directions. The order dated 15.12.1999 is number a statutory order. Such a statutory order also companyld number have been issued under the directions of the High Court as the very premise on which such directions have been issued does number survive any longer in view of the decision of this Court in T.M.A. Pai Foundation supra . Direction Nos. 7 and 8 issued by the Director of Education in its order dated 15.12.1999, which have been numbericed by this Court in paragraph 11 of the judgment reported in 2004 5 SCC 583, are companytrary to Clause c of the proviso appended to Rule 177 1 of the Rules. Whereas any fee, companytribution or other charge cannot be companylected from any student by a trust or a society running a recognised school, companylection of such fee is number prohibited by a school. What is restrainted is that all companylections should be made by a school in its own name and receipt therefor shall be given. All regulations applicable to aided or unaided recognised institutions, therefore, must be found in the statute and or the Rules. The Rules, in my opinion, require to be revisited by the State in the light of the decision of this Court in P.A. Inamdar supra , but herein I am number companycerned therewith. Rule 177 of the Rules provides for utilisation of the fees realised by unaided recognised schools. There is numberregulation as regards fee. Fee, of companyrse, should number be such which would amount to profiteering. So far as utilisation of savings from the fees companylected by such school by its managing companymittee is companycerned, the same can be utilised for the purpose of assistance of any other school or educational institution under the management of the same society or trust by which the first mentioned school is run. Submission of Mr. S. Wasim A. Qadri and Mr. Ashok Agarwal, learned companynsel appearing on behalf of the respondents that having regard to the fact that the scheme for management of the school, as companytained in Section 5 of the Act, does number permit utilisation of the fee companylected by a managing companymittee of the school by another managing companymittee of another school and, thus, the word management should be given a restricted meaning, cannot be accepted. See Official Trustee of W.B. v. Stephen Court 2006 14 SCALE 285 Clause c of the proviso appended to Rule 177 1 of the Rules itself raises a distinction. It uses both the words managing companymittee and management. They must be held to have different meanings. Clause c of the proviso appended to Rule 177 1 refers to the management of the same society or trust which means there may be more than one school which is under the same management. If the word management is substituted by the word the managing companymittee, the same would lead to an anomalous situation. The very fact that grant of assistance to any other school or educational institution, subject of companyrse to the limitations provided for therein being permissible, it, in my opinion, would number be companyrect to companytend that the managing companymittee of a school can under any circumstances render any financial assistance to the managing companymittee of the another school. Such assistance can be rendered if both the schools are under the management of the same society or trust. I, in view of the statement of law laid down in P.A. Inamdar supra , am of the opinion that the authorities of all the schools, particularly, unaided schools, may lay down its own fee criteria. Imposition of regulation, however, only is permissible for the purpose of exercising of companytrol over profiteering and number earning of a profit which would include reasonable return of the investment made. I say so because in T.M.A. Pai Foundation supra , this Court itself held The right to establish and administer broadly companyprises of the following rights- a b to set up a reasonable fee structure The right to establish an educational institution can be regulated but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure including qualified staff and the prevention of mal-administration by those in charge of management. The fixing of a rigid fee structure, dictating the formation and companyposition of a government body, companypulsory numberination of teachers and staff for appointment or numberinating students for admissions would be unacceptable restrictions. 56 The decision on the fee to be charged must necessarily be left to the private educational institution that does number seek or is number dependent upon any funds from the government. 57 There can, however, be a reasonable revenue surplus, which may be generated by the educational institution for the purpose of development of education and expansion of the institution. On a perusal of T.M.A. Pai Foundation supra and P.A. Inamdar supra , it can be inferred that private unaided institutions are permitted to have a profit but number permitted to profiteer. They have also been given autonomy subject to reasonable restrictions in the interest of minority institutions permissible under Article 30 1 and in the interest of general public under Article 19 6 of the Constitution of India. It would, in my opinion, be incorrect to lay down any general rule and enforce them on a private unaided institutions by way of gap-filing exercise and discipline or otherwise, despite the fact that Rule 177 of the Rules occupies the field. Such restrictions sought to be imposed, for all intent and purport, take away the autonomy regime of the unaided schools which are applicable to these institutions in terms of the aforementioned Constitution Bench decisions. The institutions, in view of the aforementioned decisions of the larger bench, admittedly are entitled to earn some profits and as such any direction companytrary thereto or inconsistent therewith by directing them to maintain books of account on the principles applicable to number-business organization number-for-profit organization. Even otherwise such directions run companytrary to the ordinary accounting principles and or Income Tax Laws. Contention of Mr. Chacko so far as extent of right of the minorities in establishing their institutions has never been raised before us in the main matter. The companytention which did number fall for companysideration in the main judgment cannot be a subject matter of review. It also goes without saying that the judicial discipline mandates the Bench companyprising of two or three Judges to follow the Constitution Bench decisions having regard to Article 141 of the Constitution of India. See State of West Bengal v. Ashish Kumar Roy Ors. 2005 10 SCC 110 I, therefore, clarify the judgment that any direction issued by the High Court, by the rule making authority or any statutory authority must be in companyformity with the decision of this Court in T.M.A. Pai Foundation supra as clarified by the decision of this Court in P.A. Inamdar supra . Before parting, however, I may numberice that the Government of NCT of Delhi has number amended the statutory rules on the basis of the recommendations of the Duggal Committee. I have only companysidered herein the validity of the directions issued by the Director of Education in terms of the order dated 15.12.1999. While, thus, it will be open to the State to amend its rules, it goes without saying, the management of the schools shall also be at liberty to challenge the validity thereof if and when such a question arises. The decision of this Court to the aforementioned extent is modified. Review petitions are disposed of accordingly. No companyts. J. B. Sinha New Delhi August 07, 2009 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION REVIEW PETITION C No. 1368/04 In CIVIL APPEAL No. 2700/01 Action Committee, Un-Aided Pvt. Schools Ors. Petitioners Versus Director of Education, Delhi Ors. Respondents with P. C No. 1420/04 in C.A. No. 2704/01, R.P. C Nos. 1421-1422/04 in A. Nos. 2705-2706/01, R.P. C No. 1423/04 in C.A. No. 2703/01 and P. C No. 1774/04 in C.A. No. 2701/01 JUDGMENT H. KAPADIA, J. By these review petitions under Order XL Rule 2 of the Supreme Court Rules 1966 read with Article 137 of the Constitution of India the petitioners Action Committee Un-Aided Pvt. Schools Ors. seeks review of Judgment dated 27.4.2004 passed in Civil Appeal No. 2700/01 and others. Facts On 8.9.1997 a PIL was filed in the Delhi High Court by Delhi Abibhavak Mahasangh Parents Association being writ petition number 3723/97 challenging the fee hike in various schools in Delhi. One of the charges in the writ petition against Unaided Recognized Schools was transfer of funds by the Schools to the societies trusts and or to other schools run by the same society trust, which according to the Mahasangh was in violation of Delhi School Education Act, 1973 1973 Act and Rules framed thereunder. Simultaneously, the Action Committee of Unaided Private Schools also filed civil writ petition number 4021/97 in the same High Court inter alia praying for setting aside Order dated 10.9.1997 issued by the Director of Education DoE . It may be numbered that vide Order dated 10.9.1997, DoE found that in some cases surplus money was transferred to parent societies and other schools in violation of Rule 177. Accordingly, DoE directed that fees and funds companylected from the parents be utilized in accordance with rule 177. Rules 172, 175, 176 and 177 of the Delhi School Education Rules, 1973 are quoted hereinbelow Trust or society number to companylect fees, etc., school to grant receipts for fees, etc., companylected by it.-- 1 No fee, companytribution or other charge shall be companylected from any student by the trust or society running any recognised school whether aided or number. Every fee, companytribution or other charge companylected from any student by a recognised school, whether aided or number, shall be companylected in its own name and a proper receipt shall be granted by the school for every companylection made by it. Accounts of the school how to be maintained.-- The accounts with regard to the School Fund or the Recognised Unaided School Fund, as the case may be, shall be so maintained as to exhibit, clearly the income accruing to the school by way of fees, fines, income from building rent, interest, development fees, companylections for specific purposes, endowments, gifts, donations, companytributions to Pupils Fund and other miscellaneous receipts, and also, in the case of aided schools, the aid received from the Administrator. Collections for specific purposes to be spent for that purpose.--Income derived from companylections for specific purposes shall be spent only for such purpose. Fees realised by unaided recognised schools how to be utilised.-- 1 Income derived by an unaided recognised school by way of fees shall be utilised in the first instance, for meeting the pay, allowances and other benefits admissible to the employees of the school Provided that savings, if any, from the fees companylected by such school may be utilised by its managing companymittee for meeting capital or companytingent expenditure of the school, or for one or more of the following educational purposes, namely-- a award of scholarships to students b establishment of any other recognised school or c assisting any other school or educational institution, number being a companylege, under the management of the same society or trust by which the first-mentioned school is run. The savings referred to in sub-rule 1 shall be arrived at after providing for the following, namely-- a pension, gratuity and other specified retirement and other benefits admissible to the employees of the school b the needed expansion of the school or any expenditure of a developmental nature c the expansion of the school building or for the expansion or companystruction of any building or establishment of hostel or expansion of hostel accommodation d companycurricular activities of the students e reasonable reserve fund, number being less than ten per cent, of such savings. Funds companylected for specific purposes, like sports, company curricular activities, subscriptions for excursions or subscriptions for magazines, and annual charges, by whatever name called, shall be spent solely for the exclusive benefit of the students of the school companycerned and shall number be included in the savings referred to in sub-rule 2 . The companylections referred to in sub-rule 3 shall be administered in the same manner as the monies standing to the credit of the Pupils Fund are administered. Directive dated 10.9.1997 issued in this regard reads as follows Fees and funds companylected from the parents shall be utilized strictly in accordance with rule 177 of the Rules. No amount whatsoever, shall be transferred from the Recognised Unaided School Fund of a school to the Society or the Trust, as the case may be, running that school number shall any expenditure be incurred which is number beneficial to the students or the employees of that school. On 30.10.1998, both the petitions referred to hereinabove were disposed by a companymon judgment by the Delhi High Court in the case of Delhi Abibhawak Mahasangh v. Union of India Ors. reported in 76 1998 DLT 457. Relevant paragraphs from the judgment of the Delhi High Court read as follows The background under which the impugned order were issued as discernable from government files may number be numbericed. It seems that the government received companyplaints that number of public schools had arbitrarily increased fees and other charges without any justification. A special companymittee was companystituted to companyduct special inspections mainly to examine the justification of increasing the fees. The inspection was restricted to few prominent schools. To carry out the inspection 5 different teams companyprising of officers of Directorate of Education were companystituted to look into the matter of accounts and to also examine whether fees charged is companymensurate with the facilities provided to the students and teachers. The inspection teams were required to examine 5 years accounts and examine amounts received from students as fees other charges under each head including donations, security, building fund, activity fees, laboratory fees, games fees, horse riding fees etc. besides transportation bus charges and the amounts actually spent under the specified heads. The companymittee was also required to examine if there was any surplus under any head and how the surplus money was used. The financial transactions between the school management and the society were also required to be checked. The inspection of 16 schools was companyducted. From a perusal of the inspection reports, the government found gross financial mismanagement and violation of various provisions of the Act and the Rules and observed that almost all the schools were charging exhorbitant admission fee, caution money, tuition fee and other charges under various heads in violation of Section 18 4 b of the Act read with Rule 176. The Government also observed that by charging the exhorbitant amounts schools had generated large amount of surplus funds and in some of the cases it was found that surplus money had been transferred to the parent Society in violation of Rule 177. Some of the Managing Committees of the Schools had transferred the school fund for establishing the schools even outside Delhi. The utilisation of the funds was number found to be in the manner prescribed under Rule 177. It was found that the schools were spending money in purchasing and maintaining luxury cars etc. which were number useful and necessary for the benefit of the students. It was observed that the financial irregularities had been numbericed in all the schools which were inspected under Section 24 2 of the Act and the possibility of such irregularities by other unaided recognised schools companyld number be ruled out. Noticing that the Directorate of Education does number have sufficient infrastructure to carry out special inspections of about 800 such schools, the general directions in public interest were decided to be issued. This is the background under which the impugned order dated 10th September 1997 was issued. Chapter IV of the Rules deal with school funds. Rule 172, interalia, prohibits Trust or Society running any recognised school to companylect fee companytribution or other charges from any student. Amounts have to be companylected only by the School and kept in school fund as provided in Rule 173. Rule 176 provides that income derived from the companylection for specific purposes shall be spent only for such purpose. Rule 177 states as to how the fee companylected by unaided schools is to be utilised. It, inter alia, stipulates that funds companylected for specific purpose shall be spent solely for the exclusive benefit of the students. Since companysiderable emphasis was laid by the parties on Rule 177 it will be useful to reproduce the same as under- Fees realised by unaided recognised schools how to be utilised- Income derived by an unaided recognised schools by way of fees shall be utilised in the first instance for meeting the pay, allowances and other benefits, admissible to the employees of the school. Provided that savings, if any from the fees companylected by such school may be utilised, by its managing companymittee for meeting capital or companytingent expenditure of the school, or for one or more or the following educational purposes, namely- a award of scholarships to student b establishment of any other recognised school, or c assisting any other school or educational institution, number being a companylege, under management of the same society for trust by which the first mentioned school is run. The savings to in sub-rule 1 shall be arrived at after providing for the following, namely- a pension, gratuity and other specified retirement and other benefits admissible to the employees of the school b the needed expansion of the school or any expenditure of a development nature c the expansion of the school building or for the expansion or companystruction of any building or establishment of hostel or expansion of hostel accommodation. d companycurricular activities of the students. e reasonable reserve fund, number being less than ten percent of such savings. Funds companylected for specific purposes, like sports, companyurricular activities, subscriptions for excursions or subscription for magazine, and annual charges, by whatever name called, shall be spent solely for the exclusive benefit of the students of the companycerned school and shall number be included in the savings referred to in sub rule 2 . The companylections referred to in sub-rule 3 shall be administered in the same manner as the monies standing to the credit of the Pupils Fund are administered. In M.C.D. Vs. Children Book Trust, 1992 3 SCC390 the Apex companyrt has held that Rule 177 requires the utilisation of the income only for the purpose mentioned in that Rule. The Rules do number companytemplate transfer of fund from School to Society. Such transfer of funds are in disregard of the Rules. Such transfers cannot, by any process of reasoning, be held as voluntary companytributions received by the Society. The school being a separate entity premises occupied by the school will belong to it and number to the Society. The Supreme Court has numbericed with approval the observations made by this companyrt in Safdarjung Enclave Educational Society Vs. Delhi Municipal Corporation, AIR 1989 Delhi 266, to the effect that the Society was being run purely on companymercial lines for purposes of profit and it is the receipt of income generated from the Society in the form of building fund and donations etc. which are forced on students and their guardians and the same were number voluntary companytributions. In our view, these observations would number be diluted merely because the same were made in the companytext of exemption for payment of house tax under Section 115 4 of the Delhi Municipal Corporation Act, 1957. The Safdarjung Enclave Educational Society was running Green Field School recognised under the Act. Assuming power to regulate fee etc. can be inferred from Section 24, a bare perusal of Section shows that it does number companyfer any general power on Director of Education. Reading of sub-section 3 and 4 of Section 24 shows that only specific directions in respect of a particular school in which a defect or deficiency may be found at the time of inspection or otherwise, can alone be issued. On failure to companyply with any directions given under sub-section 3 , the Director of Education, as companytemplated by sub-section 4 , can take suitable action including withdrawal of recognition etc. It was companytended that assuming Section 24 companyld be applied, the 16 schools on inspection of which alleged defects and deficiencies were found then action against only those schools, after following the procedure laid down in the Act and the Rules, companyld alone be taken. We may also numbere another Rule which shows that if any school indulges in companymercialisation of education, the Director of Education is number powerless to take appropriate action. Rule 50 in Chapter IV provide for companydition for recognition of private schools. Under the said rule a recognised school has to companytinue to follow the companyditions specified in the Rules. Sub rule iv of Rule 50 provides that the school is number run for profit to any individual, group or association of individuals or any other person. If the Director of Education finds that the school is being run for profit, such a school would be violating a companydition of recognition and thus it can be asked to rectify it failing which to face the companysequences which may be withdrawal of recognition as a result of number companytinuing to fulfill the companydition of recognition. The Director of Education would be justified in asking the school to explain facts which according to Director of Education may show that the school is being run for profit. The school is obliged to explain facts to the satisfaction of Director of Education. If it is unable to do so, the Director of Education can ask the school to reduce the fee and other charges which according to the Director show that the school is indulging in the profit motives. In our view, it would number be open to the school to say that the Director of Education has numberpower to direct the school to reduce the fee and other charges as numbersuch power vests in respect of unaided schools because Section 17 1 2 of the Act applies only to aided schools. The direction to reduce the fee and charges is to avoid straightaway taking the extreme step of withdrawal of recognition or taking over the school. It is an opportunity given to the school so that the Director of Education may number resort to withdrawal of recognition or steps for taking over of the management are number taken. It only amounts to granting an additional opportunity to the school so that on companypliance the extreme action of withdrawal of recognition or taking over of management etc. may be avoided. But for the findings and recommendations of Raghvan report which makes the present case as quite peculiar and to which we will advert a little later, we find force in the submission that Section 24 and Rule 50 are applicable to specific schools which may be found to be violating these provisions. Despite this companyclusion, we feel that the problem here is peculiar which necessitated issue of general order which per se cannot be held to be illegal in facts and circumstances of these cases. In Mrs. Y. Theclamma Vs. Union of India and others, 1987 2 SCC 516, the question that came up for companysideration before the Supreme Court was whether Section 8 4 of the Delhi School Education Act which, inter alia, provided that numberemployee shall be suspended without the approval of the Director of Education would be applicable to the minority institutions or number. The case of the minority institutions was that it encroached upon their right under Article 30 1 of the Constitution. Relying upon the decision in the case of Frank Anthony Public School the Supreme Court held that the endeavor of the companyrt in all cases has been to strike a balance between the Constitutional obligation to protect what is secured to the employees under Article 30 1 and the social necessity to protect the members of the staff against arbitrariness and victimisation. It was accordingly held that Section 8 4 cannot be said to have encroached upon the right of the minorities under Article 30 1 . In view of the aforesaid discussion our companyclusions may be summarised as under- It is the obligation of the Administrator and or Director of Education to prevent companymercialisation and exploitation in private unaided schools including schools run by minorities. No permission from Director of Education is necessary before or after fixing tuition fee. In case, however, such fixing is found to be irrational and arbitrary there are ample powers under the Act and Rules to issue directions to school to rectify it before resorting to harsh measures. The question of companymercialisation of education and exploitation of parents by individual schools can be authoritatively determined on thorough examination of accounts and other records of each school. The Act and the Rules prohibit transfer of funds from the school to the society or from one school to another. Having bestowed our thoughtful companysideration to the submission of companynsel for the parties and aforenumbericed detail facts and circumstances, we are of the view that an independent Committee deserves to be appointed for the period companyered by impugned order dated 10th September, 1997 up to start of academic session in the year 1999, to look into the cases of the individual schools and determine, on examination of record and accounts etc. Whether increase of tuition fee and other charges, on facts would be justified or number. Eliminating the element of companymercialisation and in light of this decision the Committee would determine fee and other charges payable by students of individual schools. We do number think that it would be desirable at present to permit any further increase than what has already been permitted by order dated 11th December, 1997. We would, therefore, extend the aforequoted order dated 11th December, 1997 till decision of cases of individual schools by Committee appointed by this judgment. We, accordingly, appoint a Committee companyprising of Ms. Justice Santosh Duggal, a retired Judge of this companyrt as Chairperson with power to numberinate two persons - one with the knowledge of Accounts and Second from field of education in companysultation with Chief Secretary of NCT of Delhi to decide matters of fee and other charges leviable by individual schools in terms of this decision. We request the Committee to decide the claims of individual schools as expeditiously as possible after granting an opportunity to the Schools. Director of Education and a representative of the Parent Teachers Association and such other person as the Chairperson may deem fit. The terms and companyditions including fees honorarium payable and other facilities to be provided by the State Government to the Chairperson and other members of the Committee would be discussed by the Chief Secretary with the Chairperson and finalized within 10 days. As can be seen from the said judgment, the High Court directed that an independent Committee deserves to be appointed for the period companyered by the impugned Order dated 10.9.1997 issued by DoE to look into the cases of individual Schools and decide whether increase of tuition fees and other charges would be justified or number. Accordingly, a Committee companyprising of Justice Santosh Duggal, a retired Judge of the Delhi High Court was appointed as a Chairperson to look into the fee structure levied by individual schools. Being aggrieved by the decision of the High Court to appoint Duggal Committee, the Action Committee, came to this Court by way of Special Leave Petition No. 19157/98 Civil Appeal No. 2700/01 . In the civil appeal, the Action Committee challenged the power of the High Court to appoint a Committee, which, according to the appellant was beyond the scope and the provisions of Delhi School Education Act, 1973. It was further pleaded that Order dated 10.9.1997 issued by DoE had ignored the statutory provisions of the 1973 Act and the Rules framed thereunder. That, Order dated 10.9.1997 was purportedly issued by DoE under Section 24 3 . That, from the scheme of Section 24, it was clear that the directions to be issued by DoE had to be specific to the school which had been inspected. That, there was numberpower under Section 24 3 to regulate the fee structure of an Unaided Recognised School. According to the Action Committee, the impugned Order dated 10.9.1997 issued by DoE empowered him only to carry out School specific inspection and number to regulate the fee structure of an unaided recognized school under Section 24 3 of the 1973 Act. According to the Action Committee, the Delhi High Court had erred in upholding the said Order dated 10.9.1997. Insofar as the transfer of funds from the school to the society was companycerned, the Action Committee submitted that under the 1973 Act, the school was number a specific juristic entity separate from the society that under Rule 50, one of the companyditions of recognition is that the school must be run by a society registered under the Societies Registration Act, 1860 and that the Managing Committee of the School is subject to the companytrol and supervision of the trust or society running the school and, therefore, the school and the society running the school were one and the same entity. Therefore, according to the Action Committee, transfer of funds from school to the society or vice versa was the internal mechanism of the school which had numberbearing with the question as to whether the funds were misused. According to the Action Committee, the High Court had erred in holding that funds cannot be transferred from the school to the society as there is numberprohibition in the 1973 Act in relation to such transfers so long as the utilization of the funds is for the benefit of the school s in accordance with Rule 177. As stated above, the Action Committee filed its special leave petition in this Court on 28.11.1998. On 31.7.1999, Duggal Committee submitted its Report. Some of the findings and companyclusions mentioned in the said Report are quoted hereinbelow 7.18 The Committee observed that in addition to the tuition fee, schools were also charging fees under various other heads as well. The Report of the J. Veeraraghvan Committee on Fee Structure of the Delhi Private Schools 1997 , has listed as many as 50 heads under which the fee was being companylected in the schools in Delhi. Furthermore, there is also numberuniformity, among schools in regard to the numberenclature used for different types of levies under other charges. In addition to this, items charged under the same head also differ from school to school. This has resulted in avoidable ambiguities and distortions in the fee structure which companyld become a vehicle for exploitation where the schools were so inclined. There is a pronounced tendency since 1996-97, on the part of the schools, to generally under-state surplus over-state the deficit. This was often sought to be achieved by resorting to over-provisioning under certain heads of expenditure such as gratuity, property tax etc. diverting even prior to determining the surplus a part of the school revenue receipts to various funds usually created with the specific intention of temporarily parking the money in them charging of depreciation without simultaneously setting up a Depreciation Reserve Fund for replacing the assets depreciating assets number owned by the school and simultaneously transferring equivalent amounts to the parent society number including the income accrued from certain activities under the head fee in the Income and Expenditure Account and simultaneously number crediting these receipts to the Recognised Unaided School Fund, but companycurrently charging the expenditure incurred on the related activities, to the Income and Expenditure Account number capitalization of expenditure of capital nature and instead charging it to the Income and Expenditure Account incurring expenditure on items and for purposes number strictly falling within the scope of Delhi School Act and Rules, 1973 Rule 177 transferring the money to the parent society under various pretexts such as payment of lease rent, companytribution to Education Development Expenditure, incurring recurring expenditure on the maintenance of the office of the parent society and maintenance of cars for the use of the Society etc. There was also a visible spurt in expenditure more particularly in 1997-98 on certain items such as professional fees, maintenance and other overhead charges of the school. Paras 6.2, 6.3 and 6.4 To companyplete the chronology of the relevant events, it may be stated that although the special leave petition came to be filed by the Action Committee inter alia challenging order of DoE dated 10.9.1997 and the judgment of the Delhi High Court appointing that Committee, by way of an affidavit filed on 21.2.2001 in the pending civil appeal in this Court, the Action Committee inter alia also challenged the Report of the Duggal Committee dated 31.7.1999 in following terms That as per the orders of the High Court, the terms of reference of the companymittee were specific, however, the companymittee has companyverted itself into a general companymittee to analyse the problem of un-aided public schools in Delhi and has given a vague unsubstantiated report without even hearing the schools, in the absence of any material against the schools. Right from the first para of the report, it looks that the companymittee has proceeded with the closed and biased mind against the culture of the un-aided private schools. At this stage, it may be stated that in terms of the Report of the Duggal Committee, the DoE issued an order on 15.12.1999. This was also during the pendency of the civil appeal filed by the Action Committee. Clause 8 of the Directions dated 15.12.1999 reads as follows Fees funds companylected from the parents students shall be utilized strictly in accordance with rules 176 and 177 of the Delhi School Education Rules, 1973. No amount whatsoever shall be transferred from the recognized unaided school fund of a school to the society or the trust or any other institution. When the matter reached final hearing, three points were argued. The said three points are quoted hereinbelow Whether the Director of Education has the authority to regulate the quantum of fees charged by unaided schools under Section 17 3 of the Delhi School Education Act, 1973? Whether the direction issued on 15-12-1999 by the Director of Education under Section 24 3 of the Delhi School Education Act, 1973 stating inter alia that numberfees funds companylected from parents students shall be transferred from the Recognised Unaided School Fund to the society or trust or any other institution, is in companyflict with Rule 177 of the Delhi School Education Rules, 1973? Whether managements of recognised unaided schools are entitled to set up a Development Fund Account under the provisions of the Delhi School Education Act, 1973? In the review petitions, we are mainly companycerned with the first two points. It may be numbered that the judgment under review was delivered by this Court on 27.4.2004. At that time, the judgments of this Court in T.M.A. Pai Foundation v. State of Karnataka reported in 2002 8 SCC 481 and Islamic Academy of Education v. State of Karnataka reported in 2003 6 SCC 697 held the field. Therefore, this Court was required to decide the question of reasonable fee structure and the autonomy of the institution, transparency and accountability in the companytext of the judgments in T.M.A. Pai Foundation case supra and Islamic Academy of Education case supra . The majority view in the present case finds place in paras 17, 18, 21 and 23. Analyzing Rules 172, 175, 176 and 177, this Court held that application of income was number accrual of income. The majority view was that there was a difference between appropriation of income and transfer of funds. It was further held by the majority that under clause 8 of the Order of DoE dated 15.12.1999 the management was restrained from transferring funds to the Society or the Trust s or any other institution, whereas rule 177 1 refers to appropriation of income from revenue account for meeting capital expenditure of the school and, therefore, there was numberconflict between rule 177 and clause 8 of the Order issued by DoE on 15.12.1999. Vide para 27, this Court gave further directions to the Director of Education in following terms In addition to the directions given by the Director of Education vide Order No. DE.15/Act Duggal.Com/203/99/23989-24938 dated 15-12-1999, we give further directions as mentioned hereinbelow Every recognised unaided school companyered by the Act shall maintain the accounts on the principles of accounting applicable to number-business organisation numberfor-profit organisation. In this companynection, we inter alia direct every such school to prepare their financial statement companysisting of Balance Sheet, Profit Loss Account, and Receipt Payment Account. Every school is required to file a statement of fees every year before the ensuing academic session under Section 17 3 of the said Act with the Director. Such statement will indicate estimated income of the school derived from fees, estimated current operational expenses towards salaries and allowances payable to employees in terms of Rule 177 1 . Such estimate will also indicate provision for donation, gratuity, reserve fund and other items under Rule 177 2 and savings thereafter, if any, in terms of the proviso to Rule 177 1 . It shall be the duty of the Director of Education to ascertain whether terms of allotment of land by the Government to the schools have been companyplied with. We are shown a sample letter of allotment issued by the Delhi Development Authority issued to some of the schools which are recognised unaided schools. We reproduce herein clauses 16 and 17 of the sample letter of allotment The school shall number increase the rates of tuition fee without the prior sanction of the Directorate of Education, Delhi Administration and shall follow the provisions of the Delhi School Education Act Rules, 1973 and other instructions issued from time to time. The Delhi Public School Society shall ensure that percentage of freeship from the tuition fee, as laid down under the rules by the Delhi Administration, is from time to time strictly companyplied with. They will ensure admission to the student belonging to weaker sections to the extent of 25 and grant freeship to them. On 5.7.2004 the present review petitions came to be filed basically challenging the majority view holding the DoE has the power to regulate the fee structure of private unaided schools including utilization of fees under rule 177 1 b and c . According to the review petitioners, in the matter of fee fixation since there are statutory rules governing the field, numberdirections companyld have been issued by this Court companytrary thereto. According to the review petitioners, the directions issued by DoE dated 15.12.1999 were neither the subject matter of the writ petition before the Delhi High Court number were the subject matter of the special leave petition. According to the review petitioners, the Order of DoE dated 15.12.1999 was number the subject matter of the civil appeal. Notice was issued on the review petition vide Order dated 10.8.2004. Before dealing with the arguments advanced on behalf of the review petitioners, it may be stated that entire law inter alia on the question of fee structure came to be decided once again by the Constitution Bench of this Court in the case of P.A. Inamdar and Ors. v. State of Maharashtra and Ors. Reported in 2005 6 SCC 537. S Shri Soli J. Sorabjee and Salman Khurshid, learned senior companynsel appearing on behalf of the Action Committee and other review petitioners, submitted that clause 8 of the Order issued by DoE dated 15.12.1999 is causing administrative difficulties which needs to be clarified. This Court vide majority judgment has held that clause 8 is in companysonance with rule 177 of Delhi School Education Rules, 1973. Rule 177 has been quoted hereinabove. Under clause 8, DoE has stipulated that numberamount whatsoever shall be transferred from the recognized unaided school fund of a school to the society or the trust or any other institution. According to the learned senior companynsel, a rider needs to be introduced in clause 8, namely, except under the management of the same society or trust. Thus, according to the learned companynsel, if the suggested rider is added in clause 8 then the Management would have numbergrievance with the majority view. Thus, according to the learned companynsel, clause 8 should be read as follows No amount whatsoever shall be transferred from the recognized unaided school fund of a school to the society or the trust or any other institution except under the management of the same society or trust According to the learned companynsel, if the suggested rider is added to clause 8 then it would subserve the object underlying the 1973 Act. There is merit in the argument advanced on behalf of the Action Committee Management. The 1973 Act and the Rules framed thereunder cannot companye in the way of the Management to establish more schools. So long as there is a reasonable fee structure in existence and so long as there is transfer of funds from one institution to the other under the same management, there cannot be any objection from the Department of Education. In the Review Petitions it is alleged that clause 8 of the Order of DoE dated 15.12.1999 was never challenged and yet the Court has gone into the validity thereof. There is numbermerit in this argument. It was argued on behalf of the Management before us that clause 8 of Order of DoE dated 15.12.1999 goes beyond Rule 177 and, therefore, this Court has discussed in the Judgment under Review vide para 21 the difference between accrual and application of income. In the Review Petitions it is further pleaded that where the 1973 Act and the Rules thereunder operates, regulation of education would be governed thereby and therefore the Court cannot impose any other or further restrictions by travelling beyond the scope, object and purport thereof. In this companytext it may be numbered that in T.M.A. Pai Foundation case supra and in Islamic Academy supra the principles for fixing fee structure have been illustrated. However, they were number exhaustive. They did number deal with determination of surplus and appropriation of savings. In fact in the majority view of the present matter, this Court has found that the above topics are number dealt with by the 1973 Rules and therefore clause 8 was found number to be beyond Rule 177 or in companyflict thereto as alleged. The Additional Directions given in the Judgment of the Majority vide para 27 do number go beyond Rule 177 but they are a part of gap-filling exercise and discipline to be followed by the management. For example every school shall prepare balance sheet and profit and loss account. Such companyditions do number supplant Rule 177. If reasonable fee structure is the test then transparency and accountability are equally important. In fact, as can be seen from Reports of Duggal Committee and the earlier Committee, excessive fees stood charged in some cases despite the 1973 Rules because proper Accounting Discipline was number provided for in 1973 Rules. Therefore, the Further Directions given are merely gap-fillers. Ultimately, Rule 177 seeks transparency and accountability and the Further Directions in para 27 merely brings about that transparency. Lastly, it may be numbered that the matter has companye up to the Apex Court from PIL. Hence there is numbermerit in the above plea. Subject to the above clarification, review petitions stand dismissed with numberorder as to companyts. J. H. Kapadia New Delhi August 7, 2009. IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION REVIEW PETITION CIVIL NO. 1368 OF 2004 IN CIVIL APPEAL NO. 2700 OF 2001 Action Committee, Un-Aided Pvt. Schools Ors. Petitioners vs. Director of Education, Delhi Ors. Respondents with RP C No. 1420 of 2004 in CA No. 2704 of 2001, RP C Nos. 1421-1422 of 2004 in CA Nos. 2705-2706 of 2001, RP C No. 1423 of 2004 in CA No. 2703 of 2001 and RP C No. 1774 of 2004 in CA No. 2701 of 2001 JUDGMENT CYRIAC JOSEPH, J. I had the benefit of reading the separate judgments rendered by Honble Mr. Justice S.B. Sinha and Honble Mr. Justice S.H. Kapadia in the above Review Petitions. Though I agree with the view of S.B. Sinha, J. that any direction issued by the High Court or by the rule making authority or any statutory authority must be in companyformity with the decision of this Court in the case of T.M.A.

CIVIL APPEAL NOs. 7119-7120 OF 2000 Sathasivam, J. These appeals are directed against the judgment and order dated 15.12.1998 passed by the High Court of Karnataka at Bangalore in L.R.R.P. No. 2810 of 1989 and the judgment and order dated 5.11.1999 in C.P. No.487 of 1999 dismissing the same. Brief facts, in a nutshell, are as under Land bearing Survey No. 7/3 measuring 1 acre 4 guntas Bagayath and Survey No. 56/1 measuring acres 21 guntas wet of Kannenhalli village, Yellapur Taluq are agricultural lands and were owned by the Gopal Krishna Devaru Temple. The lands were granted for cultivation on tenancy basis to the person performing the daily pooja in the temple. No separate rent was being paid. Originally one Mahabaleshwar Bhatta was performing pooja in the temple and was cultivating the lands. He had three sons namely, Shambu Bhatta, Narayan Bhatta and Krishna Bhatta. After his death, his eldest son, Shambu Bhatta started performing the pooja in the temple and cultivating the lands in question. After the death of Shambu Bhatta, Narayan Bhatta, second son of Mahabaleshwar Bhatta, started performing pooja in the temple and also cultivating the lands. Krishna Bhatta, third son of Mahabaleshwar Bhatta expired in the meantime. After the death of Narayan Bhatta, Thimmappa, son of Shambu Bhatta started performing the pooja in the temple and also cultivating the lands. In the year 1940, Thimmappa Bhatta, respondent No.2 herein, relinquished his rights and surrendered the lands to the temple authorities and left the village and started cultivating other lands thereat. In the year 1943, the Trustees of the temple entrusted the rights of performing pooja in the temple and cultivating the lands to Ramachandra Krishna Bhatta, appellant herein and his mother. The appellant is the son of Krishna Bhatta. On 10.2.1948, the name of the mother of the appellant herein was recorded in the Record of right as protected tenant of Sy. No. 7/3 and the name of the appellant as ordinary tenant for Sy. No. 56/1 vide Entry Nos. 198 and 238 respectively. In the year 1953, Thimmappa Bhatta, respondent No.2 herein, filed a suit being Suit No. O.S. 19/1953 before the Civil Judge, Junior Division, Haliyal for partition and possession of joint family properties. In the plaint itself, respondent No.2 admitted that he had left the village and gone to village Hittalli to look after the properties of his sister. On 31.5.1958, the trial Court held that in so far as the scheduled lands are companycerned, the properties were shown as tenanted lands assigned for worship of Shri Gopal Krishna Dev Temple. The trial Court also held that the plaintiff respondent No.2 herein had given up his claim for the purpose of the suit and that the suit insofar as it relates to these lands is held to be incompetent for want of sanction of Charity Commissioner. As regards the remaining immovable properties, there was numberdispute and it was ordered to be partitioned. After the death of the mother of the appellant herein, the name of the appellant was registered vide No. 303 in respect of both the surveys in the Record of rights dated 27.8.1961. In this regard, an objection was raised by respondent No.2 herein but the same was rejected. Thereafter, in the year 1963, respondent No.2 filed another suit being O.S. No. 70 of 1963 for partition and possession of the suit lands. Prior to filing of the suit, he applied to the Charity Commission for permission to file the suit for partition of the suit lands. The said request was rejected. O.S. No.70 of 1963 was also dismissed. Against the said judgment and decree, respondent No.2 filed an appeal being R.S.A. No. 930 of 1973 before the High Court of Karnataka. During the pendency of the second appeal, the Karnataka Land Reforms Act, 1961 hereinafter referred to as the Act was amended and it was, inter alia, provided that all agricultural lands held by or in possession of tenants shall vest in the Government free from all encumbrances. Section 45 companyfers a right on the tenants to apply for grant of occupancy rights. Section 48 A provides for filing of application by a tenant to the Tribunal holding of enquiry etc. Section 133 provides that a Tribunal companystituted under the Act alone shall have jurisdiction to decide the question of tenancy and Section 132 bars the jurisdiction of Civil Courts to decide any question required to be decided by the Tribunal. The appellant herein filed an application in Form No.7 for grant of occupancy rights. However, numberapplication was filed by respondent No.2 for grant of occupancy rights either for himself or on behalf of the joint family. In the meantime, during the pendency of the proceedings before the Land Tribunal, the High Court companysidered RSA No. 930 of 1973 filed by respondent No.2 herein and while allowing the appeal remanded the matter to the trial Court for disposal on merits by fixing the share. On 5.11.1974, the Tribunal companystituted under the Act companysidered the application filed by the appellant and held that the appellant was the tenant as on 1.3.1974 and accordingly granted occupancy rights to the appellant. Against the said order, respondent No.2 moved Writ Petition No. 19619 of 1979 before the High Court of Karnataka. The remanded suit which was renumbered as O.S. No.34 of 1979 was decreed on 18.12.1980 holding that the defendants had number perused all issues except issue No.5 and that as regards issue No.5 the suit was number affected by Bombay Prevention of Fragmentation and Consolidation of Holdings Act. Accordingly, plaintiff Thimmappa respondent No.2 herein was held entitled to 2/3rd share in both the surveys. On 9.6.1983, the High Court passed an order in W.P. No.19619 of 1979 filed by respondent No.2 by allowing the writ petition and remanded the matter back to the Tribunal for fresh companysideration. The Tribunal companysidered the application afresh and held enquiry as companytemplated in the Act and the Rules. On 16.8.1985, the Tribunal held that the appellant alone was cultivating the land as tenant on the appointed date and the temple was the owner of the lands and accordingly granted occupancy rights to the appellant. Aggrieved by the said order, respondent No.2 herein filed Writ Petition before the High Court. Consequent upon companystitution of appellate authority, the matter was transferred before the said Authority for companysideration and was registered as DAAA AP 244.330/86. On 31.1.1989, the appellate Authority held that the lands were tenanted lands, therefore, allowed the appeal and quashed the order of the Tribunal. Dissatisfied therewith, the appellant preferred LRRP No. 2810 of 1989 before the High Court and the same was dismissed by order dated 15.12.1998. On 5.11.1999, the review petition filed by the appellant herein was also dismissed. Hence, aggrieved by the said orders, the appellant preferred the above appeals before this Court by way of special leave. Heard Mr.R.S. Hegde, learned companynsel for the appellant, and Mr. S.N. Bhat, learned companynsel for the respondents. It is the grievance of the appellant that though the Land Tribunal, by order dated 16.08.1985, declared and granted occupancy right in his favour in respect of the land in Survey Nos. 56/1 to an extent of 2-21-0 and 7/3 to an extent of 1-4-0 of Kannenalli village, the Land Reforms Appellate Authority and the High Court exercising power under the Act companymitted an error in setting aside the order of the Land Tribunal and rejecting the application of the appellant seeking occupancy right in respect of the said lands. In view of narration of the facts in the earlier paragraphs, there is numberneed to traverse the same once again. It is true that on the application made by the appellant who is the son of Krishna Bhatta and grand-son of Mahabaleshwar Bhatta, Karnataka Land Tribunal, after finding that the lands in question are temple lands which are being cultivated by the applicant appellant herein in recognition of his temple service and is being companytinuously cultivating these lands from 1944, arrived at a companyclusion that he is cultivating the lands which belong to the temple as tenant and, therefore, he is entitled to occupancy rights. Aggrieved by the said decision, Mahabaleshwar Narayan Bhatta and Thimmappa Bhatta, sons of Shambu Bhatta and Narayan Bhata respectively and grand-sons of Mahabaleshwar Bhata filed appeal before the Land Reforms Appellate Authority. The Appellate Authority, after analyzing the materials, particularly judgment and decree of the civil companyrt as well as orders of the authority, came to the companyclusion that the disputed lands are joint family properties belonging to all the three parties, namely, Ramachandra Krishna Bhatta, Mahabaleshwar Bhata and Thimmappa Bhatta. It is relevant to point out that the Appellate Authority came to such companyclusion on the basis of the decree of the civil companyrt vide S. No. 37 of 1979. The following companyclusion of the Appellate Authority is relevant Since the 3rd respondent has number taken any objection, we companye to the companyclusion that the disputed lands are the tenancy lands of undivided family of the appellants and the 3rd respondent. From these undisputed facts, it is clear that the right of performing the pooja of Sri Gopalkrishna deity and other services and the enjoyment of disputed lands were number given to the 3rd respondent, but pooja and other services were the undivided rights of the joint family in addition to the tenancy rights. Based on the finding rendered by the civil companyrt and other materials placed before it, the Appellate Authority has companycluded Therefore, there is numbermerit in the companytention of the 3rd respondent that he alone is in possession and cultivating the disputed lands for the relevant period and he is eligible for the occupancy rights and we answer accordingly by rejecting his companytention. The Appellate Authority has rightly pointed out that as per Section 48A of the Act, it is incumbent upon the part of the Land Tribunal to give public and personal numberices before passing an order in an application filed under Section 48. It is number in dispute that the Land Tribunal has number heard the representative of Shri Gopalkrishna Devaru Temple. A reading of sub-section 2 of Section 48A makes it clear that on receipt of application, the Tribunal has to issue public numberice in the village in which the land is situated calling upon the landlord and all other persons having interest in the land to appear before it on the date specified in the numberice. It is also incumbent on the part of the Tribunal to issue individual numberice to the persons mentioned in the application and also to such others as may appear to it to be interested in the land. Sub-section 3 prescribes form of the application, form of the numberices and the manner of publishing or serving the numberices. Sub-section 4 says that where numberobjection is filed, the Tribunal, after verification, pass an order to either grant or reject the application. As per sub-section 5 where an objection is filed disputing the validity of the applicants claim or setting of a rival claim, it is incumbent on the part of the Tribunal to companyduct enquiry and thereafter determine the person entitled to be registered as occupant and pass orders accordingly. The factual finding of the Appellate Authority shows that the Land Tribunal failed to cause either public numberice in the village or to the deity Gopalkrishna Devaru Temple. In view of the same, it is clear that the Land Tribunal has number fulfilled the requirement which is mandatory and the Appellate Authority rightly interfered with the order of the Land Tribunal and set aside the same. The Appellate Authority has also companycluded that there is numberacceptable material holding that the appellant alone was cultivating the land and entitled for the grant of occupancy right. The High Court companysidered the revision petition filed by the appellant before it under Section 121A of the Act. A reading of the revisional jurisdiction of the High Court shows that only for the purpose of satisfying itself as to the illegality or as to the regularity of such order or proceeding, the High Court is permitted to interfere. The High Court, in the impugned order, very well numbered the factual finding of the Land Reforms Appellate Authority that the nature of possession of the appellant cannot be regarded as tenant of the land. The High Court has also companycluded that there is absolutely numberevidence in respect of its claim that he paid rent to the 3rd respondent as a tenant under him. On the other hand, his plea that he was a tenant of the land was number allowed to be raised and rejected in O.S. No. 34/79 which had become final.

K. SIKRI, J. The issue which arises for companysideration in the present appeal pertains to the appointment for the post of Deputy Superintendent of Police hereinafter referred to as the Dy.S.P. . Though, the appellant herein had participated in the selection process and she number only qualified at each stage of the examination process, her name was still number included in the list of successful candidates for the said post. The reason given was that as per the Chhattisgarh Police Executive Gazetted Service Recruitment and Promotion Rules, 2000 hereinafter referred to as Rules, 2000 , upper age limit for appointment to the post of Dy.S.P. was 25 years and she had already crossed the said age limit, and therefore, she was rendered ineligible for the post in question. This decision of the respondents in number appointing the appellant as Dy. S.P. was challenged by the appellant by filing the writ petition in the High Court of Chhattisgarh on the ground that she was entitled to the benefit of age relaxation on account of being Government Servant. It may be numbered at this juncture that she was appointed as Excise Sub Inspector, Bilaspur after clearing the CG companybined Competitive Examination, 2003 which is also called State Services Examination, 2003 . She, thus, claimed that she was a Government Servant and on that ground she claimed age relaxation as per Rule 8 of the Rules, 2000. However, her writ petition was dismissed by the learned single Judge holding that she entered the Government job vide appointment order dated 21.04.2006 which was after the cut-off date as 01.01.2006 for the post of Dy.S.P. and, therefore, was number entitled to the benefit of age relaxation. The appellant filed the writ appeal before the Division Bench and claimed benefit of age relaxation under Madhya Pradesh Civil Services Special Provision for appointment of women Rules, 1997 hereinafter referred to as the Rules, 1997 . However, even on this ground she has number succeeded as the High Court vide impugned judgment dated March 10, 2010 has dismissed the writ appeal. We would like to point out at this stage that number of writ petitions were filed in the High Court which were taken up by the learned single Judge analogously and decided by the companymon judgment dated November 16, 2009. Whereas some writ petitions including that of the appellant herein was dismissed and some other writ petitions were allowed by the learned single Judge holding that in their cases they were entitled to age relaxation and, therefore, select list should have been prepared on the basis of merit treating those persons to be within age limit. The Government had filed writ appeals challenging outcome of such writ petitions in favour of those candidates. These appeals were also taken up by the Division Bench along with the appeal of the appellant herein. The High Court has allowed those appeals holding that even such persons were number entitled to the benefit of age relaxation. We make it clear that we shall be eschewing the discussion in respect of those cases which obviously is number necessary. Coming to the case of the appellant herein, seminal facts which need to be recorded for deciding the companytroversy are recapitulated below As mentioned above, the appellant herein was appointed as Excise Sub Inspector, Bilaspur vide appointment order dated 24.01.2006 and she joined the said post on 07.02.2006. On 27.09.2004, the State Government sent requisition to Chhattisgarh Public Service Commission hereinafter referred to as the CPSC for filling up of various vacancies which included vacancies to the post of Dy.S.P. as well. This was followed by fresh requisition dated 22.03.2005. In this requisition, the State Government also mentioned that the vacancies shall be filled up in accordance with Rules, 2000. Acting on this requisition, CPSC issued Advertisement dated 26.08.2005. Relevant to state that after the requisition by the State Government sent on 22.03.2005 and before the issuance of Advertisement on 26.08.2005, Chhattisgarh Police Executive Gazetted Service Recruitment and Promotion Rules, 2005 hereinafter referred to as the Rules, 2005 came into force which were published in the Official Gazette on 28.06.2005. The effect of these Rules would be discussed at the relevant stage. Appellant herein had applied for the post of Dy.S.P. and appeared in the preliminary examination which she duly qualified. On that basis, the appellant filled the form for appearing in main examination. In this form, she stated that she was entitled to relaxation of ten years in upper age limit being a woman. Such a relaxation was claimed on the basis of the Rules, 1997 which were brought into force w.e.f. 07.02.1997. The Rule 4 thereof provides for such age relaxation. For our purposes, Rule 2 and Rule 4 are relevant and are reproduced below Scope and application Without prejudice to the generality of the provisions companytained in any service Rules, these rules shall apply to all persons to public service and posts in companynection with the affairs of the State. Age Relaxation. - There shall be age relaxation of ten years for women candidates for direct appointment in all posts in the services under the State in addition to the upper age limit prescribed in any service rules or executive instructions. The appellant was allowed to participate in the main examination and she qualified that as well. Accordingly, she was called for interview on 12.04.2007. Final results were declared thereafter. She obtained 54th position in the merit list. Thereafter, CPSC prepared the list of selected candidates and sent that list to the Government for effecting appointments as per that list. However, name of appellant was number recommended for Dy.S.P. though two persons who were below in merit, namely, Tarkeshwar Patel and Ranu Sahu were recommended. They had obtained 59th and 60th position respectively, in the merit list. Appellant felt aggrieved thereby and made a representation to this effect. However, her representation did number elicit any positive response even when it was followed by a reminder dated 20.05.2007. This apathy of the respondent forced the appellant to approach the High Court in the form of writ petition filed under Article 226 of the Constitution of India. Her plea was that she had number been given the benefit of age relaxation even when she was an existing government servant as she was working in the Excise Department of the State of Chhattisgarh and being a Government Servant, she was entitled to age relaxation for eight years. This plea was rejected by the learned single Judge recording that she has joined the government service after the cutoff date and, therefore, she was number a government employee on the relevant date. The appellant challenged the aforesaid order of the learned single Judge by filing the writ appeal. In this writ appeal, she did number pursue her case for age relaxation upto eight years on the ground that she was a Government Servant. Instead she relied upon Rule 4 of Rules 1997 wherein relaxation of ten years is available to women candidates in addition to other relaxation in age. The Division Bench has held that benefit of Rule 4 of Rules 1997 shall number enure to her benefit and the entire discussion in support of this companyclusion is companytained in paras 52 and 53 of the impugned judgment which are reproduced hereunder in entirety We are unable to accept this argument. The advertisement clearly mentions that for the post of Dy.S.P., minimum and maximum age limit would be 20 and 25 years clearly spelling out the terms and companyditions for relaxation of age criteria. From bare reading of Rule 8 of the Rules, 2000, it is clear that age relaxation under the Rules, 1997 is number applicable for recruitment on the post of Dy.S.P. From advertisement also, it is evident that numberrelaxation in age for recruitment for the post of Dy.S.P. was available to the woman candidates whereas age relaxation under the aforesaid rules have been made applicable in other categories. Since there was numberchallenge by the appellant to the applicability of the Rules, 2000, she cannot be permitted to assail the impugned judgment on the ground that she was entitled for age relaxation as provided under Rule 4 of the Rules, 1997. As is clear from the aforesaid reasoning given by the High Court, Rule 8 of Rules, 2000 would prevail upon Rules, 1997 and, therefore, Rules, 1997 are number applicable for recruitment to the post of Dy.S.P. The High Court has also been persuaded by the stipulation companytained in the advertisement as per which outer age limit for the post of Dy.S.P. was 25 years. The whole companytroversy, therefore, revolves around interplay of Rules, 1997 and Rules 2000 as well as other rules. That was precisely the focus of arguments of the learned companynsel for the parties. We have already reproduced provisions of Rules 2 and 4 of Rules, 1997. As can be discerned from bare reading of Rule 4 thereof, it provides for relaxation of 10 years for women candidates for direct appointment in all posts in the services under the State and this relaxation is in addition to the upper age limit prescribed in any service Rules or adjective instructions. Rule 2 of these rules makes it clear that Rules, 1997 shall apply to all persons to public service and post in companynection with the affairs of the State, without prejudice to the generality of the provisions companytained in any service rules. Insofar as Rules, 2000 are companycerned, these are the Rules which pertain to recruitment and promotion to various categories of post in State Police Executive Gazetted Services. The post of Dy. S.P. is admittedly companyered by these Rules and, therefore, eligibility companyditions for the aforesaid post and the method of recruitment etc. as companytained in these Rules which govern the post of Dy. S.P. as well. Since, we are companycerned herewith the companyditions of eligibility for direct recruitment, it is Rule 8 of the said Rules which is relevant. This Rule provides for lower and upper age limit as well. The relevant portion of the provision relating to age, as companytained in the said Rule, is reproduced below, thereby omitting the provisions pertaining to other companyditions of eligibility with which are are number companycerned- Conditions of eligibility for direct recruitment. In order to be eligible for companypeting in the examination a candidate shall have to be satisfy following companyditions, namely- Age. a He must have attained the age as specified in companyumn 4 of Schedule III and number attained the age specified in companyumn 5 of the said schedule, on the first day of January next following the date of companymencement of the examination. The upper age limit shall be relaxable upto a maximum of five years if a candidate belonging to Scheduled Caste, Scheduled Tribe or Other Backward Class. The upper age limit shall also be relaxable in respect of candidates who are or have been employees of the Madhya Pradesh Government, to the extend and subject to the companyditions specified below- A candidate who is a permanent Government Servant should number be more than 33 years of age. A candidate holding a post temporarily and applying for another post should number be or more than 33 years of age. This companycession shall also be admissible to the companytingency paid employees, work-charged employees and employees working in the Project Implementation Committee. A candidate who is a retrenched Government Servant shall be allowed to deduct from his age the period of all temporary service previously rendered by him upto a maximum of 7 years even if it represents more than one spell provided that the resultant age does number exceed the upper age limit by three years. Explanation. The term retrenched Government Servant denotes a person who was in Government Servant of this State or of any of the companystituent units for a companytinuous period of number less than six months and who was discharged because of reduction in the number of employees number more than three years prior to the date of his registration in the Employment Exchange or of application made otherwise for employment in the Government Service. A candidate who is an ex-serviceman shall be allowed to deduct from his age the period of all defense services previously rendered by him provided that the resultant age does number exceed the upper age limit by more than three years. Explanation. The terms ex-serviceman denotes a person who belongs to any of the following categories and who was employed under the Government of India for a companytinuous period of number less than six months and who was retrenched or declared surplus a s a result of the recommendation of Economy Unit or due to numbermal reduction in the number of employees number more than three years from the date of his regi9stration and any employment exchange or of application made other wise for employment in Government Service- Ex-serviceman released under mustering out companycession Ex-serviceman recruited for the second time and discharge on- a companypletion of short term engagement b fulfilling the companyditions of enrollment Officers Military and Civil discharged on companypletion of their companytract including Short Service regular companymissioned officers Officers discharged after working for more than six months companytinuously against leave vacancies. General upper age limit shall be relaxable upto five years in respect of widow, destitute or divorced woman candidates. Upper age limit shall also be relaxable upto two years in respect of green card holder candidates under the Family Welfare Programme. The General upper age limit shall be relaxable upto five years in respect of awarded superior caste partners of a companyple under the inter caste marriage inceptive Programme of the Tribal, Scheduled Castes, and Backward Classes Welfare Department. The upper age limit shall also be relax able upto five years in respect of candidates holding Vikram Award The upper age limit shall be relax able upto a maximum of 33 years of age in respect of candidates who are employees of Madhya Pradesh State Corporation Boards. The upper age limit shall be relaxed in case of voluntary Home-Guards for the period of service rendered by them subject to the limit of 8 years, but in numbercase their age should exceed 3 years. Note 1 Candidates who are admitted to the selection under the age companycession mentioned in sub-clause i and ii of clause c and clause i above shall number be eligible for appointment if after submitting the application they resign from the service either before or after the selection. They will however companytinue to be eligible if they are retrenched from the service or post after submitting the application. Note 2 In numberother case age limits will be relaxed. Note 3 Department candidates must obtain previous permission of their appointing authority to appear for the selection. Column 4 of Schedule III prescribes minimum age limit of 20 years and maximum age limit of 25 years for the post of Dy.S.P. HQ, Training, JNPA, PTC, PTS, Security, Lines etc. . A reading of the aforesaid provision, in its entirety, would suggest that relaxation in age of different periods is provided to the candidates belonging to the following categories Scheduled Castes, Scheduled Tribes or Other Backward Classes. Employees of the Madhya Pradesh Government holding permanent post or temporary post or retrenched Government Servant. Ex-Serviceman Widow destitute or divorced women candidates Green card holder candidates under the Family Welfare Programme Awarded superior caste partners of a companyple under the inter-caste marriage inceptive programme of the Tribal, Scheduled Castes and Backward Classes Welfare Department. Those candidates who are holding Vikram Award Candidates who are employees of Madhya Pradesh State Corporation Boards. Candidates who are voluntary Home-Guards Admittedly, case of the appellant does number fall in any of the aforementioned categories wherein age relaxation is provided. If one has to go by Rule 8 in isolation, having regard to Note 2 , age limit in the case of appellant cannot be relaxed. In this companytext, however, the question arises as to whether Rules, 1997, which companytain special provision for appointment of women, would still be applicable having regard to the fact that the appellant is a woman candidate. Whereas, the companytention of Mr. Ajit Kumar Sinha, learned senior companynsel appearing for the appellant is that since there are special Rules meant for women candidates in respect of all posts in the State, this special provision is applicable. On the other hand, companytention of the learned companynsel for the respondents is that having regard to Rule 8 1 of Rules, 2000, which provides for provision relating to age specifically for the post in-question, it is this Rule which would determine the eligibility of candidates insofar as prescription of age therein is companycerned. We may add here that Mr. Ajit Kumar Sinha, learned senior companynsel for the appellant had also drawn our attention to States Service Examination Rules, dated June 9th, 2003 Examination Rules, 2003 . He submitted that the examination in-question was companyducted as per those Rules. These Rules are applicable to the post of Dy.S.P. as well and Rule 5 thereof deals with eligibility companyditions. Apart from prescribing nationality, minimum educational qualification etc., It specifically lays down provision relating to age of the candidates. Though, the minimum of age of 21 years and maximum of age 30 years as on first January next following the date of companymencement of the companypetitive examination is stipulated therein, proviso to this provision of age empowers the State Government to vary the lower and upper age limits for any of the services included in these Rules looking to the exigencies of services. This Rule also makes provision for relaxation in the upper age limit in certain cases. What is relevant for us is that for women candidates, a provision is specifically made providing that as per Rules, 1997, 10 years age relaxation would be given to women candidates, as is clear from the said provision which reads as under up to maximum 10 years for women candidate As per Rajpatra Asadharan dated 7.2.1997, Published rule C.G. Civil Service Special provision of appointment for women Rule 1997, 10 years age relaxation will be given to women candidate. Taking advantage of this provision, Mr. Sinha argued that since examinations were companyducted under the aforesaid Rules, in view of the said specific provision, the appellant was entitled to age relaxation, as per Rules, 1997. Another submission of Mr. Ajit Kumar Sinha was that in any case it was number permissible for the respondents to make recruitment in-question on the basis of Rules, 2000 in view of the fact that in the State of Chhattisgarh, Chhattisgarh Police Executive Gazetted Recruitment and Promotion Rules, 2005 were promulgated vide Notification dated June 28, 2005 issued by the Governor of the State in exercise of proviso to Article 309 of the Constitution of India and, these Rules specifically repealed Rules, 2000. He pointed out that in these Rules specific provision has been made under Rule 8 f for giving relaxation upto 10 years to women candidates, in terms of Rules, 1997. The said provision is as follows 8 f The upper age limit for women candidates shall be relaxable upto 10 years as per Chhattisgarh Civil Service special provision for appointment of women Rules, 1997. this relaxation shall be in addition to the other age relaxation. He submitted that in the instant case, advertisement for the post inquestion, in which the appellant participated, was issued on August 26, 2005, i.e. after the promulgation of Rules, 2005 which became effective from June 28, 2005 and, therefore, it is Rules, 2005 which were applicable and as these Rules companytain specific provision for relaxation for women candidates on the applicability of Rules, 1997. Learned companynsel for the respondents companyntered the aforesaid submissions by arguing that the first requisition in the instant case was sent by the State on September 27, 2004 which was followed by 2nd requisition on March 23, 2005. These requisitions were in respect of post which had fallen vacant at that time and as on the dates of these requisitions, Rules 2000 were applicable. It is for this reason that even in the requisition it was specifically mentioned that post in-question shall be filled up in accordance with Rules, 2000. The learned companynsel, therefore, argued that since the process was initiated under Rules, 2000, it was clearly saved in Rules, 2005 as is evident from proviso to Rule 27 dealing with repeal and saving. It reads as under Repeal and Saving Provided that any order made or action taken under rules so repealed, shall be deemed to have been made or taken under the companyresponding provisions of these rules. It was argued that precisely for this reason even in the advertisement, it was mentioned that the post will be filled up as per Rules, 2000. It was further companytended that this advertisement was never challenged by the appellant and, therefore, recruitment made under Rules, 2000 in respect of vacancies which were for the period when Rules, 2000 were applicable, companyld number be faulted with. In this very line of submission, it was further argued that once it is accepted that Rules, 2000 govern the field, admittedly as per these Rules there is numberprovision for relaxation for women candidates and, therefore, High Court rightly held that the appellant was number entitled to any such age relaxation and was, therefore, suffered from age bar. From the arguments numbered above, the questions that fall for companysideration and need the answers are the following Whether the recruitment to the post of Dy.S.P. was governed by Rules, 2005 or it was rightly done under the Rules, 2000? It may be pointed out at this stage itself that if Rules, 2005 are applicable then the outcome of the case would clearly be in favour of the appellant inasmuch as rules specifically provided for relaxation upto 10 years for women candidates. However, if answer to the aforesaid question is that recruitment process was rightly carried under Rules, 2000 then further question would arise for companysideration, viz. Notwithstanding the fact that Rules, 2000 do number companytain any provision for relaxation qua women candidates, whether a relaxation would still be available to women candidates under Rules, 1997? There are two incidental facets of question number b , which are as follows Whether Rules, 1997 are applicable, which make special provision for relaxation in upper age limit by 10 years in respect of women candidates? Whether Examination Rules, 2003 which specifically companytain a provision for applicability of Rules, 1997 would be treated as applicable for the examination in-question? Question No. 1 The High Court held that first and second requisitions to companymence recruitment process against the vacant seats to the post of Dy.S.P. was made when Rules, 2000 were in force. Therefore, recruitment was rightly undertaken under Rules, 2000. The admitted facts are that the process of selection started before Rules, 2005 were promulgated with the requisitions dated September 27, 2004 and March 26, 2005 sent by the State Government to the CPSE. At that time, Rules, 2000 were in vogue. For this reason, even in the requisition it was mentioned that appointments are to be made under Rules, 2000. Further, it is also an admitted fact that the vacancies in-question which were to be filled were for the period prior to 2005. Such vacancies needed to be filled in as per those Rules, i.e. Rules, 2000. This is patent legal position which can be discerned from Y.V. Rangaiah and Others v. J. Shreenivasa Rao1. As per the facts of that case a panel had to be prepared every year of list of approved candidates for making appointments to the grade of Sub-Registrar Grade-II by transfer according to the old rules. However, the panel was number prepared in the year 1976 and the petitioners were deprived of their right of being companysidered for promotion. In the meanwhile, new rules came into force. In this factual background, it was held that the vacancies which occurred prior to the amended rules would be governed by the old rules and number by the amended rules. The judgment in the case of B.L. Gupta and Another v. M.C.D.2 also summarises the legal position in this behalf. The judgment in P. Ganeshwar Rao and Others v. State of Andhra Pradesh and Others3 is also to the same effect. Para 9 of the judgment laying down the aforesaid proposition of law, is reproduced below When the statutory rules had been frame din 1978, the vacancies had to be filled only according to the said Rules. The Rules of 1995 have been held to be prospective by the High Court and in our opinion this was the companyrect companyclusion. This being so, the question which arises is whether the vacancies which had arisen earlier than 1995 can be filled as per the 1995 Rules. Our attention has been drawn by Mr. Mehta to a decision of this Court in the case of N.T. Devin Katti v. Karnataka Public Service Commission 1990 3 SCC 157. In that case after referring to the earlier decisions in the cases of Y.V. Rangaiah1, P. Ganeshwar Rao3, and A.A. Calton v. Director of Education 1983 3 SCC 33 it was held by this Court that the vacancies which had occurred prior to the amendment of the Rules would be governed by the old Rules and number by the amended Rules. No doubt, under certain exceptional circumstances, Government can take a companyscience decisions number to fill the vacancies under the old Rules and, thus, there can be departure of the aforesaid general rule in exceptional cases. This legal precept was recognised in the case of Rajasthan Public Service Commission v. Keilla Kumar Palliwal and another4 in the following words There is numberquarrel over the proposition of law that numbermal rule is that the vacancy prior to the new Rules would be governed by the old Rules and number by the new Rules. However, in the present case, we have already held that the Government has taken companyscious decision number to fill the vacancy under the old Rules and that such decision has been validly taken keeping in view the facts and circumstances of the cases. This position is reaffirmed in State of Punjab v. Arun Kumar Aggarwal5. However, as far as present case is companycerned, the State sent the requisition specifically mentioning that the recruitment has to be under Rules, 2000. This was so provided even in the advertisement. The appellant never challenged the advertisement and companytended that after the promulgation of Rules, 2005 the recruitment should have been under Rules, 2005 and number Rules, 2000. Therefore, the appellant is even precluded from arguing that recruitment should have been made under Rules, 2005. Thus, we answer question number i by holding that recruitment was rightly made as per Rules, 2002. Question No. ii As numbered above, Rue 8 of Rules 2000, which, inter alia, deals with age criteria that has to be fulfilled by the candidate, does number make any provision for age relaxation insofar as women candidates are companycerned. On the other hand, we have Rules, 1997 which also have statutory force as they are also framed under proviso to Article 309 of the Constitution of India. These Rules companytain special provisions for appointment of women candidates and are made applicable to the public service and posts in companynection with the affairs of the State. The question is as to whether these Rules would number be applicable in those cases where recruitment is made under Rules, 2000 which number only companytains specific provision for age relaxation but does number make any provision for age relaxation in favour of women candidates and on the companytrary categorically provides under Note 2 that in numberother case age limits will be relaxed. Significantly, this omission in Rules, 2000 has taken numbere of when Rules, 2005 were framed and, therefore, the situation was remedied in Rule 8 of Rules, 2005 by specifically providing under sub-rule f of Rule 8 that relaxation in the upper age limit would also be available to women candidates as per Rules, 1997 as numbered above. However, we have already companye to a companyclusion that Rules, 2005 are number applicable in respect of selection in question. Therefore, position will have to be companysidered keeping in view Rules, 2000 in juxtaposition with Rules, 1997 and other relevant provisions which were applicable as on that date. No doubt, Rule 8 of Rules, 2000, which, inter alia, lays down the provision pertaining to upper and lower age of the candidates, does number make any specific provision for relaxation of age in respect of women candidates. We also are companyscious of the fact that Note 2 appended to Rule 8 provides that in numberother case, age limit will be relaxed. However, that is number the end of the matter. The legal position is to be examined in companyjunction with all other rules which occupy the field and all relevant to determine the issue. We are of the opinion that Rules, 1997 read with State Services Examination Rules, 2003 would get attracted and as these Rules make a specific provision for providing of age relaxation upto ten years that is to be given to women candidates, the appellant herein shall be entitled to the said benefit. The reasons for arriving at this finding are explained hereinafter In the first instance, it is to be borne in mind that Rules, 1997 are specific Rules, specially meant to give benefit of age relaxation to women in public service and post in companynection with the affairs of the State. These Rules are statutory in nature framed under proviso to Article 309 of the Constitution of India. Such a special provision is made in favour of females in companysonance with the Constitutional spirit companytained in Article 15 3 of the Constitution of India which empowers the State to make any special provision for women and children. The salutary purpose and objective behind promulgating Rules, 1997 is manifest and can be clearly discerned. It is to encourage women, hitherto known as weaker section, to become working women, by taking up different vocations, including public employment. It would naturally lead to empowerment of women, which is the need of the hour. Women in this world, and particularly in India, face various kinds of gender disabilities and discriminations. It is numberwithstanding the fact that under the Constitution of India, women enjoy a unique status of equality with men. In reality, however, they have yet to go a long way to achieve this Constitutional status. It is number realised that real empowerment would be achieved by women, which would lead to their well-being facilitating enjoyment of rights guaranteed to them, only if there is an economic empowerment of women as well. Till sometime back, the focus was to achieve better treatment for women and for this reason, the companycentration was mainly on the well-being of women. Now the focus is shifted to economic empowerment. Such objectives have gradually evolved or broadened to include the active role of women when it companyes to development as well. No longer the passive recipients of welfare-enhancing help, women are increasingly seen, by men as well as women as active agents of change the dynamic promoters of social transformation that can alter the lives of both women and men. It is number realised that there is a bidirectional relationship between economic development and womens empowerment defined as improving the ability of women to access the companystituents of developmentin particular health, education, earning opportunities, rights, and political participation. This bidirectional relationship is explained by Prof. Amartya Sen by propounding a theory that in one direction, development alone can play a major role in driving down an equality between men and women in another direction, companytinuing discrimination against women can hinder development. In this scenario, empowerment can accelerate development. From whichever direction the issue is looked into, it provides justification for giving economic empowerment to women. It is, for this purpose, there is much emphasis on women empowerment as it leads to economic development by United Nations World Bank and other such Bodies. Interestingly, the 2012 World Development Report World Bank 2011 adopts a much more nuanced message. While it emphasizes the business case for women empowerment, it mainly takes it as given that the equality between women and men is a desirable goal in itself, and policies should aim to achieve that goal. Poverty and lack of opportunity breed inequality between men and women, so that when economic development reduces poverty, the companydition of women improves on two companynts first, when poverty is reduced, the companydition of everyone, including women, improves, and second, gender inequality declines as poverty declines, so the companydition of women improves more than that of men with development. Economic development, however, is number enough to bring about companyplete equality between men and women. Policy action is still necessary to achieve equality between genders. Such policy action would be unambiguously justified if empowerment of women also stimulates further development, starting a virtuous cycle. Empowerment of women, thus, is perceived as equipping them to be economically independent, self-reliant, with positive esteem to enable them to face any situation and they should be able to participate in the development activities. Keeping in view all the aforesaid and other relevant companysiderations, when such affirmative actions are taken by lawmaker, in the form of subordinate legislation, they need to be enforced appropriately so that the purpose that is intended is suitably achieved. Seen in this companytext, Rule 4 of Rules, 1997 is to be interpreted to have universal application when it companyes to women candidates seeking appointment in public service and post in companynection with the affairs of the State of Chhattisgarh. After all, that is the primary purpose behind enacting the aforesaid Rule having statutory character. In order to gather the intention of the lawmaker, the principle of purposive interpretation is number widely applied. This has been explained in the case of Shailesh Dhairyawan v. Mohan Balkrishna Lulla6 in the following words The aforesaid two reasons given by me, in addition to the reasons already indicated in the judgment of my learned Brother, would clearly demonstrate that provisions of Section 15 2 of the Act require purposive interpretation so that the aforesaid objective purpose of such a provision is achieved thereby. The principle of purposive interpretation or purposive companystruction is based on the understanding that the Court is supposed to attach that meaning to the provisions which serve the purpose behind such a provision. The basic approach is to ascertain what is it designed to accomplish? To put it otherwise, by interpretative process the Court is supposed to realise the goal that the legal text is designed to realise. As Aharan Barak puts it Purposive interpretation is based on three companyponents language, purpose, and discretion. Language shapes the range of semantic possibilities within which the interpreter acts as a linguist. Once the interpreter defines the range, he or she chooses the legal meaning of the text from among the express or implied semantic possibilities. The semantic companyponent thus sets the limits of interpretation by restricting the interpreter to a legal meaning that the text can bear in its public or private language. Of the aforesaid three companyponents, namely, language, purpose and discretion of the Court, insofar as purposive companyponent is companycerned, this is the ratio juris, the purpose at the companye of the text. This purpose is the values, goals, interests, policies and aims that the text is designed to actualize. It is the function that the text is designed to fulfil. We may also emphasize that the statutory interpretation of a provision is never static but is always dynamic. Though literal rule of interpretation, till some time ago, was treated as the golden rule, it is number the doctrine of purposive interpretation which is predominant, particularly in those cases where literal interpretation may number serve the purpose or may lead to absurdity. If it brings about an end which is at variance with the purpose of statute, that cannot be companyntenanced. Not only legal process thinkers such as Hart and Sacks rejected intentionalism as a grand strategy for statutory interpretation, and in its place they offered purposivism, this principle is number widely applied by the Courts number only in this companyntry but in many other legal systems as well. Even if any doubt arises about the applicability of Rules, 1997 because of absence of any specific provisions in Rules, 2000, that is taken care of by State Services Examination Rules, 2003. It is number disputed by the respondents that companypetitive examination for recruitment to the post of Dy.S.P. was companyducted under the aforesaid Rules. As already numbered above, Rule 5 of the said Rules deals with eligibility companyditions. Apart from prescribing nationality, minimum educational qualification etc., it specifically lays down provision relating to age of the candidates. After prescribing minimum and maximum age limits as eligibility companydition for appearing in the examinations, proviso to this provision of age empowers the State Government to vary the lower and upper age limits for any of the services included in these Rules looking to the exigencies of services. This Rule also makes provision for relaxation in the upper age limit in certain cases. What is relevant for us is that for women candidates, a provision is specifically made providing that as per Rules, 1997, 10 years age relaxation would be given to women candidates, as is clear from the said provision which reads as under up to maximum 10 years for women candidate As per Rajpatra Asadharan dated 7.2.1997, Published rule C.G. Civil Service Special provision of appointment for women Rule 1997, 10 years age relaxation will be given to women candidate. It can, therefore, be clearly inferred that incorporation in the manner aforesaid Rules, 1997 were made applicable for the examination in question and in this way the lacuna in Rules, 2000 also got filled up. It would number be too much presumptuous to say that omission of Rules, 1997 in Rule 8 of Rules, 2000 was merely accidental and it was number a case of casus omissus. Because of this reason, said omission was also rectified while enacting Rules, 2005 by making a specific provision in Rule 8 f of Rules, 2005. Therefore, the intention of the rule making authorities had always been to give benefit of relaxation in age to women candidates. After all, we are called upon to interpret subordinate legislation salutary aim whereof is to achieve social purpose and companysequently social justice. What should be the approach in interpreting such laws is explained in Badshah v. Sou. Urmila Badshah Godse and Anr.7 in the following words 13.3. Thirdly, in such cases, purposive interpretation needs to be given to the provisions of Section 125, Code of Criminal Procedure While dealing with the application of destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalized sections of the society. The purpose is to achieve social justice which is the Constitutional vision, enshrined in the Preamble of the Constitution of India. Preamble to the Constitution of India clearly signals that we have chosen the democratic path under rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the Courts to advance the cause of the social justice. While giving interpretation to a particular provision, the Court is supposed to bridge the gap between the law and society. Of late, in this very direction, it is emphasized that the Courts have to adopt different approaches in social justice adjudication, which is also known as social companytext adjudication as mere adversarial approach may number be very appropriate. There are number of social justice legislations giving special protection and benefits to vulnerable groups in the society. Prof. Madhava Menon describes it eloquently It is, therefore, respectfully submitted that social companytext judging is essentially the application of equality jurisprudence as evolved by Parliament and the Supreme Court in myriad situations presented before companyrts where unequal parties are pitted in adversarial proceedings and where companyrts are called upon to dispense equal justice. Apart from the social-economic inequalities accentuating the disabilities of the poor in an unequal fight, the adversarial process itself operates to the disadvantage of the weaker party. In such a situation, the judge has to be number only sensitive to the inequalities of parties involved but also positively inclined to the weaker party if the imbalance were number to result in miscarriage of justice. This result is achieved by what we call social companytext judging or social justice adjudication. The provision of maintenance would definitely fall in this category which aims at empowering the destitute and achieving social justice or equality and dignity of the individual. While dealing with cases under this provision, drift in the approach from adversarial litigation to social companytext adjudication is the need of the hour. The law regulates relationships between people. It prescribes patterns of behavior. It reflects the values of society. The role of the Court is to understand the purpose of law in society and to help the law achieve its purpose. But the law of a society is a living organism. It is based on a given factual and social reality that is companystantly changing. Sometimes change in law precedes societal change and is even intended to stimulate it. In most cases, however, a change in law is the result of a change in social reality. Indeed, when social reality changes, the law must change too. Just as change in social reality is the law of life, responsiveness to change in social reality is the life of the law. It can be said that the history of law is the history of adapting the law to societys changing needs. In both Constitutional and statutory interpretation, the Court is supposed to exercise direction in determining the proper relationship between the subjective and objective purpose of the law. Cardozo acknowledges in his classic numbersystem of jus scriptum has been able to escape the need of it, and he elaborates It is true that Codes and Statutes do number render the Judge superfluous, number his work perfunctory and mechanical. There are gaps to be filled. There are hardships and wrongs to be mitigated if number avoided. Interpretation is often spoken of as if it were numberhing but the search and the discovery of a meaning which, however, obscure and latent, had numbere the less a real and ascertainable pre-existence in the legislators mind. The process is, indeed, that at times, but it is often something more. The ascertainment of intention may be the least of a judges troubles in ascribing meaning to a stature. Says Gray in his lecture The fact is that the difficulties of so-called interpretation arise when the legislature has had numbermeaning at all when the question which is raised on the statute never occurred to it when what the judges have to do is, number to determine that the legislature did mean on a point which was present to its mind, but to guess what is would have intended on a point number present to its mind, if the point had been present. The Court as the interpreter of law is supposed to supply omissions, companyrect uncertainties, and harmonize results with justice through a method of free decision-libre recherche sceintifique i.e. free Scientific research. We are of the opinion that there is a number-rebuttable presumption that the Legislature while making a provision like Section 125 Code of Criminal Procedure, to fulfill its Constitutional duty in good faith, had always intended to give relief to the woman becoming wife under such circumstances. This approach is particularly needed while deciding the issues relating to gender justice. We already have examples of exemplary efforts in this regard. Journey from Shah Bano, AIR 1985 SC 945 to Shabana Bano, AIR 2010 SC 305 guaranteeing maintenance rights to Muslim women is a classical example. In Rameshchandra Daga v. Rameshwari Daga, AIR 2005 SC 422, the right of another woman in a similar situation was upheld. Here the Court had accepted that Hindu marriages have companytinued to be bigamous despite the enactment of the Hindu Marriage Act in 1955. The Court had companymented that though such marriages are illegal as per the provisions of the Act, they are number immoral and hence a financially dependent woman cannot be denied maintenance on this ground. Thus, while interpreting a statute the companyrt may number only take into companysideration the purpose for which the statute was enacted, but also the mischief it seeks to suppress. It is this mischief rule, first propounded in Heydons Case 1854 3 Co. Rep. 7a, 7b which became the historical source of purposive interpretation. The companyrt would also invoke the legal maxim companystruction ut res magis valeat guam pereat, in such cases i.e. where alternative companystructions are possible the Court must give effect to that which will be responsible for the smooth working of the system for which the statute has been enacted rather than one which will put a road block in its way. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation should be avoided. We should avoid a companystruction which would reduce the legislation to futility and should accept the bolder companystruction based on the view that Parliament would legislate only for the purpose of bringing about an effective result. If this interpretation is number accepted, it would amount to giving a premium to the husband for defrauding the wife. Therefore, at least for the purpose of claiming maintenance under Section 125, Code of Criminal Procedure, such a woman is to be treated as the legally wedded wife. The principles of Hindu Personal Law have developed in an evolutionary way out of companycern for all those subject to it so as to make fair provision against destitution. The manifest purpose is to achieve the social objectives for making bare minimum provision to sustain the members of relatively smaller social groups. Its foundation spring is humanistic. In its operation field all though, it lays down the permissible categories under its benefaction, which are so entitled either because of the tenets supported by clear public policy or because of the need to subserve the social and individual morality measured for maintenance. In taking the aforesaid view, we are also encouraged by the following observations of this Court in Capt. Ramesh Chander Kaushal v. Veena Kaushal 1978 4 SCC 70 The brooding presence of the Constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause - the cause of the derelicts. When all the aforesaid Rules are seen in juxtaposition and in companyjunction with each other, intention of rule making authority becomes apparent and is clearly ascertained.

Dharmadhikari J. By the judgment impugned in this appeal, the High Court of Madhya Pradesh in Second Appeal No. 518 of 1978 under Section 100 of the Code of Civil Procedure has reversed the companycurrent findings in the judgments of the two companyrts below and decreed the suit filed by the plaintiff respondent herein for delivery of possession of suit land to the extent of 70 X 20 in Survey No. 452. The land in Survey No. 452 has been found by all the companyrts to be of the ownership of the plaintiff. The land is alleged to have been encroached upon by deceased Deva, the sole defendant, who is succeeded by his legal representatives as appellants in this appeal. Deva was owner and in possession of the adjoining land in Survey No. 453. The plaintiffs case is that while he was out of the village in the companyrse of his duties being in government service, the defendant Deva encroached upon suit land in July, 1966. The suit of possession was instituted on 18.12.1972. The trial companyrt dismissed the suit as barred by limitation on a finding that the defendant is in possession of the encroached land since Samvat 1996 i.e. the year 1940. The first appellate companyrt companyfirmed the above finding of the trial companyrt and upheld the dismissal of the suit on the ground of limitation. The High Court in Second Appeal has reversed the judgments of the two companyrts below by relying on defendants own admission in the witness-box that he came to know of his alleged encroachment of land in Survey No. 452 belonging to the ownership of the plaintiff only after filing of the suit. The High Court, therefore, came to the companyclusion that on this admission of the defendant, he companyld number be held to have prescribed title by adverse possession. Learned companynsel appearing for the appellant in this appeal, questions the jurisdiction of the High Court in Second Appeal under Section 100 of the Code of Civil Procedure to interfere with the companycurrent findings of the facts of two companyrts below it. Learned senior companynsel appearing for the respondent plaintiff supported the judgment of the High Court. It is submitted that since a very important piece of evidence in the nature of admission of the defendant had been overlooked by the companyrts below and thus the suit was wrongly dismissed on the ground of limitation, there was full justification for the High Court in Second Appeal to reverse the judgments of the companyrts below. Since a doubt arose with regard to the companytent and effect of the alleged admission of the defendant in the witness-box, we directed the parties to supply translated companyies of the depositions of the witnesses recorded in the trail companyrt. The necessary companyies of the depositions were number available with the companynsel. We have, therefore, requisitioned the record of the trial companyrt. On looking into the record, we find that the High Court was right in interfering with the judgments of the companyrts below on the basis of admission companytained in the statement of the defendant. It clearly negatives his case of being in adverse possession of the encroached portion of the land from the year 1940. The relevant part of the admission in the statement of defendant Deva SDW-6 rendered into Enghlish reads as under - The land measuring 70 X 20 of Survey No. 453 of Sajjan Kumar is in my possession - since last 10 to 12 years, Sajjan Kumar is out of village in service but he keeps on companying off and on. It is wrong that 10 years back, I raised a companypound and encroached on the suit land. On the companytrary, the suit land is in my possession right from the beginning. After filing of this suit, it came to my knowledge that I am in possession of two biswas of land of Survey No. 453. Before filing of this suit, Patwari and others had companye to the land for measurement and they told me that on land in Survey No. 453, your possession has been found. Then I told them that I am in possession since beginning. In the above part of the deposition, the defendant admits that the dispute of encroachment companycerning suit portion 70 X 20 came to his knowledge only after filing of the suit. The defendant has described suit land 70 X 20 to be part of his Survey No. 453. But all the companyrts have companye to a companycurrent finding that suit land to the extent of 70 X 20 is part of Survey No. 452 belonging to the plaintiff. From the deposition of the defendant, it appears that he had encircled by a companypound suit land 70 X 20 by treating it to be a part of his adjoining Survey No. 453. The deposition extracted above, in any case, negatives the defendants case of having prescribed title by adverse possession from the year 1940. The animus to hold the land adversely to the title of the true owner can be said to have started only when the defendant derived knowledge that his possession over the suit land had been alleged to be an act of encroachment - on plaintiffs survey number. The above-quoted admission companytained in the defendants deposition, does number make out a case in his favour of having acquired title by adverse possession. Mere long possession of defendant for a period of more than 12 year without intention to possess the suit land adversely to the title of the plaintiff and to latters knowledge cannot result in acquisition of title by the defendant to the encroached suit land. The plaintiffs suit is number merely based on his prior possession and subsequent dispossession but also on the basis of his title to Survey No. 452. The limitation for such a suit is governed by Article 65 of the Limitation Act of 1963. The plaintiffs title over the encroached land companyld number get extinguished unless the defendant had prescribed title by remaining in adverse possession for a companytinuous period of 12 years.

REPORTABLE CIVIL APPEAL NO. 2388 OF 2008 Arising out of S. L. P. C No.1622 of 2005 Lokeshwar Singh Panta, J. Leave granted. This appeal by special leave is directed against the judgment and order dated 25th November, 2004 passed by the High Court of Calcutta in MAT No. 171 of 2002 whereby and whereunder the order of the learned Single Judge of the High Court dated 15th October, 2001 recorded on Writ Petition No. 6935 W of 1999 was affirmed and the appellants herein were directed to give retrial benefits to all the writ petitioners respondents 1 to 8-retirees in accordance with the Central Government Pension Scheme as opted by them in the year 1989 within a period of four weeks from the date of companymunication of the order. Briefly stated, the facts of the case are as follows- The respondents 1 to 8-retirees herein were employees of the Overseas Communication Service OCS , the Department of Telecommunications of the Government of India. The OCS was companyverted into a Government Company, namely, Videsh Sanchar Nigam Limited VSNL on 1st April, 1986. By an Office Memorandum No. 4 8 /85-P PW dated 13th January, 1986, the Government of India settled the pensionary terms of Government employees who were transferred to an Autonomous Body Public Sector Undertaking PSU on companyversion of a Central Government Department Office into an Autonomous Body or PSU. The relevant terms of the said Circular reads as under- The permanent Government Servants shall have an option to retain pensionary benefits available to them under Government Rules or be governed by the Rules of the Public Sector Undertaking Autonomous Body. The Government Servants who opt to be governed by the pensionary benefits available under the Government shall at the time of their retirement, be entitled to pension etc. in accordance with the Central Government Rules in force at that time. The Government of India, Ministry of Communication, Sanchar Bhawan, vide another O.M. bearing No. G 25015/ 1/86-00 dated 19.3.1986 decided to set up a wholly Government owned Public Sector Corporation known as VSNL which was made operational from 1st April, 1986. This Circular reiterated that the pension and other benefits to the employees on their absorption in the Corporation will be determined in accordance with the Department of Pension Pension Welfare, O.M. No. 4 8 -85, P PW dated 13.1.1986 and as amended from time to time. Later on, O.M. dated 13.1.1986 was amended by O.M. No. 4/18/87-P PW D , dated 5.7.1989, which provided inter alia that the employees will have an option to retain Government pay scale till their promotion or retirement whichever is earlier or to companye over to the service companyditions of PSUs. A Circular No. HQ/01- 01/89-PEM dated 11.12.1989 was issued by VSNL with a proposal to absorb individual employees in regular service with effect from 1.1.1990 and the employee companycerned had to exercise his her option of getting himself herself absorbed in regular service of VSNL and if the companycerned employee did number opt for absorption, his or her name will be transferred to the Surplus Staff Cell for deployment against possible vacancies in other Government offices. The terms and companyditions of permanent absorption of the OCS staff companytained in separate formats were supplied to the employees for their information and necessary action. The Government of India, Ministry of Personnel, Public Grievances and Pension Department of Pension and Pension Welfare later on vide O.M. bearing No. 4/18/87-P PW D dated 7.2.1990 issued clarification in the following termsthat where the employees had opted to retain pensionary benefits under the Central Government Rules, the emoluments drawn under the PSU shall be treated as emoluments for the purpose of Rule 33 of the Central Civil Services Pension Rules, 1972 and accordingly any emoluments drawn by the transferred employee will be taken into account for the purpose of calculation of average emoluments as per clarification given in Note 10 below Rule 33 of the Central Civil Services Pension Rules, 1972. That such employees, who have specifically opted for Central Government Pensionary benefits, will be entitled to the benefit of payment of pension on the emoluments drawn at the time of retirement from the PSU. It is number obligatory on the part of the transferred employees who opted for pensionary benefits as admissible under Central Government Rules to retain Government pay scales, since both issues are number related. A fresh Staff Notice, bearing Ref. No. HQ-A/01-01/90 PE1 dated 21.2.1990, was issued by VSNL by which the employees were called upon to exercise their option as to whether they wanted to retain the pensionary benefits available to them under the Government Rules or be governed by the Rules of the PSU Autonomous Body. The clarificatory information was annexed to the said Notice which inter alia provided that the option to retain pensionary benefits under the Central Government Rules will mean that the employees will receive pensionary benefits Pension Gratuity on the basis of emoluments average emoluments drawn by the employee at the time of retirement from VSNL and in accordance with the Rules of the Central Government. The Government of India vide Office Memorandum dated 24.12.1992 companyveyed to the VSNL the revision of the pay structure of Executives below Board level and Non- Executives employees of VSNL recruited on or after 1989 to the Industrial Dearness Pattern IDP . This O.M. also provided that D.A. admissible to Executives and Non-Executives would be at the rates specified in the DPEs O.M. dated 22.1.1991 as amended from time to time. The letter in the Fitment Method would show that the basic pay plus Central D.A. was merged in the Basic Pay to be fixed in the appropriate stage of the IDA pattern scale of pay and it was also clarified that the total emoluments would be drawn by VSNL employees in the Government scale of pay and D.A. pattern as on 2.1.1990 and, accordingly, the pay scales of Non-Executive employees of VSNL were changed over to IDA pay scale in May, 1993 with retrospective effect from 2.1.1990. The VSNL vide Office Order No. HQ-A/01-04/91-PE1 dated 3.9.1993 in reply to the clarifications sought for by its Centres Units as to whether the pay drawn on IDA scales companyld be treated as emoluments for the purpose of calculation of pension in respect of employees who opted to retain pensionary benefits available to them in terms of Government of India Rules but have changed over to the IDA pattern of pay scales. It was clarified in a letter dated 3.9.1993 with reference to O.M. dated 5.7.1989 that in respect of those employees who have changed over to IDA pattern of pay scales with effect from 2.1.1990, emoluments for the purpose of calculation of pension and other terminal benefits shall be the treated emoluments drawn by them in IDA Scale at the time of retirement resignation death from the Company. This Order stated that pension and other terminal benefits in the above case shall be calculated in accordance with the Rules of the Central Government in that behalf. The order further clarified Admissible Dearness Relief shall also be allowed on the pension so arrived at as per the existing Central Government Rules. On 18.10.1995 VSNL vide its Reference No. HQ-A/01- 04/91-PE1, issued Office Order in terms of O.M. No. 4/18/87- P PW D dated 07.02.1990 of the Ministry of Personnel, Public Grievances and Pension DP PW numberifying mode of settlement of pensioners benefits in case of the employees who opted for the Government pension on superannuation at the time of absorption in the Company and thereafter VSNL by Office Order dated 19th December, 1995 carried out modifications in Para 2 A of the earlier office order dated 18th October, 1995. The modified para reads as under- Employees who retired prior to 1.1.1992 shall have the following alternative for regulation of their pension To draw pension on eligible CDA pay with admissible Dearness Relief as per the existing Central Government rules. To draw pension last IDA pay emoluments for purposes of calculation of pension shall companyprise of Basic Pay, Personal Pay, if any with admissible DA numberified by the Government for employees of Public Sector Undertakings. The modification so recorded was a one-time exercise for choosing the alternatives for settlement of pension and the pensioners shall be required to submit their companysent to the Regional Heads by 15.1.1996 on a prescribed format giving choice of either of the alternatives. The Assistant General Manager P sent a letter dated 19.12.1995 to Shri Nikhileshwar Das, Secretary, VSNL Retired Employees Association, in regard to the alternatives being provided to employees who retired prior to 1.1.1992 so as to bring to their numberice to choose either CDA pay with Central Dearness Relief or IDA pay with admissible DA numberified by the Government of India for the employees of PSUs. The Ministry of Personnel, Public Grievances and Pension Department of Pension and Pensioners Welfare vide its Office Memorandum No. 4/16/90-P PW D , clearly stated that all those transferred employees on the establishment of VSNL who received IDA pay scales prior to their retirement, their emoluments for the purpose of pension shall be calculated based on the emoluments drawn in the IDA pay scales, but, they will number be entitled to the payment of DR on pension at Central Government rates as the Department of Public Enterprises have prescribed a separate DR table in respect of such transferred employees and, therefore, DR on pension in respect of VSNL retirees shall be regulated as per the orders issued by the Department of Public Enterprises from time to time. It appears that the Director, Ministry of Personnel, Public Grievances and Pension Department of Pension and Pensioners Welfare vide its O.M. No. 4/3/07-P PW D requested the Department of Communications to examine the grievances of the absorbees, in accordance with the Rules and Instructions so that the absorbees who had opted for retention of Central Government pensionary benefits on their absorption on the establishment of VSNL companyld get their retrial benefits, gratuity and companymutation of pension and secondly to examine the anomalies highlighted by the Association of Retired Employees of VSNL in companysultation with the Department of Public Enterprises. The Department of Telecommunications in reply to the representation dated 23.08.1998 of the Secretary of VSNLs Retired Employees Association, in their numberification states- Pension in IDA pay scale with IDA relief Having changed over to IDA pattern of pay scales as per the Government instructions, it is obvious that employees who opted for the Government pension should be paid in the applicable IDA pattern of pay scales with IDA relief. Revision of Pension Rule 70 It is clarified that it is number a revision of pension but change of pension from CDA to IDA pattern of pay scales as per the government decision. The revision in IDA pattern of pay scales is due from 1.1.1997 and pension shall also be revised. The respondents 1 to 8, who are the retired VSNL employees, filed W.P. No. 6935 W of 1999 before the High Court of Calcutta on 19th April, 1999 seeking inter alia the following reliefs a a writ in the nature of mandamus directing the VSNL and Union of India to rescind or revoke the impugned decisions and orders companytained in the Office Orders Memoranda dated October 18., 1995 Annexure P-11 December 19, 1995 Annexure P- November 22, 1996 Annexure P-14 May 5, 1998 Annexure P-16 May 28, 1998 and November 12, 1998 Annexure P-17 b to pay to the petitioners their pensionary benefits on the basis of the appellants decisions companytained in Memoranda and or Office Orders dated January 13, 1986 Annexure P-1 March 19, 1986 Annexure P-2 October 30, 1986 July 5, 1989 Annexure P-4 December 11, 1989 Annexure P February 07, 1990 Annexure P8 February 21, 1990 Annexure P-8 February 21, 1990 Annexure P-9 and September 3, 1993 Annexure P-10 . c to make payments of arrears of pensionary benefits after calculating average emoluments on the last pay drawn in the revised pay scale of 1992 and other subsequent revised pay scales with the dearness relief calculated at the rate or rates prescribed by Central Government for the Central Government emoluments d to make payments of the withheld amount of gratuity and companymuted value of pension and to make all such payments with companypound interest at the minimum rate of 18 per annum from the date or dates such amounts because due and payable till which should be forth with the date or dates such emoluments became due and payable till the date of the same are actually paid. In the writ petition, VSNL and the Union of India were made parties-respondents. Affidavit in-opposition to the writ petition has been filed by a senior officer of VSNL. The respondents 1 to 8-retirees filed rejoinder and VSNL filed supplementary affidavit-in-opposition to the rejoinder of the respondents 1 to 8-retirees. The learned Single Judge of the High Court allowed the Writ Petition and granted the above said reliefs. The appellants then preferred an appeal before the Division Bench of the High Court which dismissed the same by judgment and order dated 24.11.2004 impugned by the appellants in this appeal by way of special leave before us. We have heard learned companynsel for the parties and perused the material on record. The appellants have challenged the companyrectness and validity of the impugned judgment and order of the High Court inter alia on the following grounds- The Honble High Court failed to appreciate that in service jurisprudence, Dearness Relief DR in a particular pay scale companyplements the basic pay of the pay scale and is designed to companypensate the companyt of living while the basic pay pension remains steady so that an employee retired employee is protected against fluctuation in the companyt of Living Index The Honble High Court failed to appreciate that the basic purpose of the DR is neutralization of the increase in companyt of living and it cannot exceed 100 neutralization. The impugned order would result in a wrongful gain to the respondents 1 to 8- retirees far in excess of 100 neutralization The Honble Court failed to appreciate that the original petitioners viz. respondent number. 2, 3, 5, 6 and 7 herein were retired on CDA emoluments and they were drawing pension on CDA pay scale with DR as applicable to CDA pay scale and therefore, they have numbervested right to receive pension as per IDA pay scale which would be much higher The Honble Court failed to appreciate that IDA pay scales were introduced by VSNL pursuant to the Government letter No. G-12013/1/91-OC dated 24th December, 1992 with retrospective effect in respect of employees who were on the role of companypany as on 2nd January, 1990 and the same was implemented for Non- Executive Employees in May, 1993 with retrospective effect from 2nd January, 1990 and for Executive Employees in December, 1993 with retrospective effect from 2nd January, 1990. Respondent Nos. 1, 4, 8 and other employees who retired after May, 1993 and December, 1993 when the change over to the IDA scale was implemented for Non-Executive Employees and Executive Employees respectively had in fact started drawing pay on the IDA scales of pay and Dearness Allowance DA as numberified by the Government for employees of Public Sector Undertakings. Therefore, there was numberquestion to respondents Nos. 1 to 8- retirees having claimed vested right to draw DR as per existing Central Government Rules when they accepted their pension number as per Central Government Rules and CDA pay scales, but as per IDA pay scales which were much higher in view of the fact that IDA pay scales were arrived at by merger of CDA pay scales and DR The Honble Court failed to appreciate that if it companyld be stated that the respondent Nos. 1 to 8retirees have vested right to receive DR as per Central Government Rules, then they did number have any vested right to receive pension as per IDA pay scale The Honble Court failed to appreciate that the respondents No. 1 to 8 retirees were approbating and reprobating at the same time in as much as when it came to the payment of pension as per IDA pay scale, although the same was introduced retrospectively much after their retirement, the same was acceptable to them whereas DR as numberified by the Government for employees of PSUs was number acceptable to them on the ground that it was taking away their vested right to receive DA DR The Honble Court failed to appreciate that the impugned order would result in adverse discrimination to other employees of VSNL who retired subsequently inasmuch as the subsequent retirees would get pension at the IDA pay scale and DR as numberified by the Government for PSU employees whereas the respondents Nos. 1 to 8 - retirees would get that pension as per CDA scale and at the same time they would get DR as per Central Government Rules, which was also much larger then the DR as numberified by the Government for employees of PSUs on IDA scale. We may numbere at this stage that the respondents-retirees despite service of numberice have chosen number to file any companynter to the special leave petition or the appeal before this Court. Having heard Mr. K.J. Presswala learned companynsel for the appellants and Mr. K.V. Vishwanathan learned companynsel for the respondents-retirees this Court on 17.01.2008 recorded the following order- The Parties are permitted to file affidavit explaining Clause 3 of the Circular dated 24.12.1992 of the Government of India, Department of Telecommunications, Sanchar Bhavan, 20 Ashok Road, New Delhi within the period of one week and the companynter affidavit a week thereafter. Mr. Vivek D. Dhule, Senior Manager HR of appellant-VSNL, pursuant to the above said order filed an affidavit inter alia states as under- That in order to ascertain the meaning of Clause 3 of the Circular dated 24th December, 1992 I saw my own fixation of pay in the IDA Scale as on 2nd January, 1990. In fixation of the said pay, my Basic Pay CDA on 2nd January, 1990 of Rs.1260/- was taken and clubbed with my CDA Dearness Allowance Relief of Rs.479/- making the total existing CDA emoluments of Rs.1739/- Rupees one thousand seven hundred thirty nine only . From this amount, an amount of Industrial Dearness Allowance and fixed Dearness Allowance FDA of Rs.325.75 Rupees three hundred twenty five and paise seventy five only and Rs.101.60 Rupees one hundred one and paise sixty only respectively i.e. Rs.427.35 Rupees four hundred twenty seven and paise thirty five only was deducted and the amount for fixation was arrived at Rs.1,311.65 Rupees one thousand three hundred eleven and paise sixty five only and I was fitted in the pay scale at Rs.1,321/- Rupees one thousand three hundred twenty one only Basic pay . On this salary Industrial Dearness Allowance of Rs.325.75 Rupees three hundred twenty five and paise seventy five only plus Fixed Dearness Allowance of Rs.101.60 Rupees one hundred one and paise sixty only was added and my total pay became Rs.1,748.35 Rupees one thousand seven hundred forty eight and paise thirty five only This shows how the said circular was implemented. In the subsequent revision, i.e. in 1992 the basic pay and dearness allowance was merged, resulting in larger basic pay and lower IDA Dearness Allowance while the CDA Dearness Allowance remained much larger as the CDA basic pay was much smaller. Mr. Ajit Kumar Kar, respondent No.1 herein, in reply to the affidavit of the Senior Manager HR dated 22.02.2008 filed an affidavit inter alia states in para 5 I state that the calculations given as per the pay scale of the deponent clearly shows that there was numbersharp rise and or increase in the basic pay as a result of merger with Central D.A. The same calculation shows that number the entire D.A. but only a fraction of it arrived at after deducting the IDA plus FDA from it was merged with the basic pay. Before the merger, the basis pay was Rs.1260/-. The Central D.A. being 38 of the basic pay as on 01.01.1990, the amount companyes to Rs.478.80 rounded to Rs.479/- in the said affidavit. From this, an amount of Industrial D.A. Rs.325.75 plus Fixed D.A. Rs.101.60 total being Rs.427.35 was deducted bringing down the Central D.A. to Rs.51.65. The mode of calculation was same for all the transferred erstwhile OCS employees and the resulting meagre increase in the basis pay after the above deductions as per Clause 3 does number speak of any double benefit. Thus it clearly shows that number the entire D.A. but only 10.78 of it was merged with the basic pay making it Rs.1311.65 and as per the Fitment Method, the said amount was fitted in the next higher scale resulting in Rs.1321/- being the PSU basic pay and CDA was abolished. No option was offered to the transferred erstwhile OCS employees to retain CDA pay and it was only after retirement of all the private respondents, the Appellate Authority came up with the theory that Central D.A. will be given only on CDA pay although there was numberexistence of CDA pay. It is further stated that in para 6 of the affidavit, the calculations given by the appellant-authority shows that by implementing the circular dated 24.12.1992 numberdouble benefit was given to any of the transferred employees because the Central D.A. was drastically reduced by about 89 to 90 before it was merged with the Central basic pay. He denied and disputed the statement made in the affidavit of Shri Vivek Dhule that in the subsequent revision i.e. in 1992 the basic pay and dearness allowance was merged resulting in larger basic pay and lower Industrial Dearness Allowance while the CDA Dearness Allowance remained much larger as the CDA basic pay was much smaller as the same is number supported by any Circular or Office Memo. Finally, he supported the judgment and order of the High Court and prayed for the grant of withheld pay, gratuity and arrears of pensionary benefits to respondents-retirees. The learned companynsel for the respondents-retirees on the basis of the available record companytended before us that the reasons given by the learned Single Judge as well as by the Division Bench of the High Court for granting relief to the respondents - retirees are based upon proper appreciation of the various Office Memoranda issued by VSNL and the Union of India from time to time relating to the subject-matter in issue. It has however, been companytended that pension being a right and number a bounty available to retired employees and DR being a part of pension, right to receive the same companyld number have been denied merely because the incumbent opted for IDA pay scale. In support of the submission, reliance has been placed upon a decision of this Court in the case of Chairman, Railway Board and Others v. C.R. Rangadhamaiah and Others 1997 6 SCC 623. The learned companynsel also submitted that in the facts and circumstances of the case, this Court shall number be obliged to interfere in the well-merited judgment of the High Court which does number suffer from any infirmity or perversity. We have given our anxious companysiderations to the pleadings, the reasonings recorded and the view taken by the High Court in the impugned order and the companytentions put forth before us by the learned companynsel for the parties. We are afraid that we cannot subscribe to the view expressed by the High Court while companystruing the expression of DR as of right accrued to the respondents-retirees. It is number in dispute that the respondentsretirees along with other employees of OCS of the Department of Telecommunications of the Government of India were transferred to the service of VSNL on its formation with effect from 1st April, 1986. By an Office Memorandum No. 4 8 /85-P PW dated 13th January, 1986, Government of India, Ministry of Personnel, Public Grievances and Pension Department of Pension Pensioners Welfare , settled the pensionary benefits of the Government employees who were transferred to Autonomous Organizations PSUs companysequent on the companyversion of Government Department Office into an Autonomous Body or PSUs. The terms of the said Circular clearly stated that the permanent government servants shall have an option to retain the pensionary benefits available to them under the Government Rules or be governed by the Rules of the PSUs Autonomous Body and the Government servants who opted to be governed by the Rules of the Autonomous Body or PSUs shall become entitled to the pensionary benefits in accordance with the Rules of the Autonomous Body or PSUs from the day of their transfer from the service of the Government. Based on this Circular, another O.M. No.G-12015/1/86-00 dated 19th March, 1986 was issued by the Government of India, Ministry of Communications, in which it was reiterated in Clause 8 that the pensionary and other retiral benefits to the employees on their absorption in the Corporation i.e. VSNL will be determined in accordance with the Department of Pension and Pensioners Welfare O.M. No. 4 8 /85-PPW dated 13.01.1986 and as amended from time to time. In partial modification of M. No. 4 8 /85-PPW dated 13th January, 1986 and O.M. of even number dated 30th October, 1986 on the subject of settlement of pensionary terms etc. in respect of Government employees transferred en masse to Central Public Sector Undertakings Central Autonomous Bodies. Government of India, Ministry of Personnel, Public Grievances and Pension Department of Pension and Pensioners Welfare vide its O.M. No. 4/18/87-PPW D dated 5th July, 1989 lays down certain terms and companyditions which will be applicable to the transferees. The material and relevant terms are that the permanent government servants shall have an option to retain the pensionary benefits available to them under the Government Rules or be governed by the Rules of the PSUs Autonomous Body. The Government servants, who opted to be governed by the pensionary benefits available under the Government, shall at the time of their retirement be entitled to pension etc. in accordance with the Central Government Rules in force at that time. On December 11, 1989, VSNL issued an Office Memorandum to its employees asking their choice of absorption in the regular service of VSNL. Along with the said Memorandum, a format was supplied which companytained terms and companyditions of permanent absorption of the erstwhile OCS staff in the service of VSNL. One of the terms relating to pensionary benefits was that the permanent government servants shall have an option to retain pensionary benefits available to them under the Government Rules or be governed by the Rules of VSNL. The option was also made available to quasi-permanent and temporary employees after they have been companyfirmed in VSNL. The Government of India, Ministry of Personnel, Public Grievances and Pension, Department of Pension and Pensioners Welfare vide Office Memorandum dated 7.2.1990 in reply to the Department of Telecommunications O.M. No. A-13016/1/188- C. dated 22nd January, 1990 issued a clarification relating to the settlement of pensionary terms, etc. in respect of erstwhile OCS employees who were absorbed in VSNL. In terms of this O.M., it was clarified very specifically that where the employees had opted to retain the pensionary benefits under the Central Government Rules, the emoluments drawn under the PSUs shall be treated as emoluments for the purpose of Rule 33 of the Central Civil Services Pension Rules, 1972 and, accordingly, any emolument drawn by the transferred employee will be taken into account for the purposes of calculation of average emoluments as per the clarification given in Note 10 below Rule 33 of the CCS Pension Rules and it was stated that such employees who had specifically opted for Central Government Pensionary benefits will be entitled to the benefit of payment of pension based on the emoluments drawn at the time of retirement from the PSUs. Before proceeding further to deal with the matter, we think it appropriate to refer to the relevant provision of the CCS Pension Rules, 1972. Rule 3 c of the CCS Pension Rules defines emoluments to mean emoluments as defined under Rule 33. Rule 33 of CCS Pension Rules deals with emoluments and reads as under- The expression emoluments means basic pay as defined in Rule 9 21 a i of the Fundamental Rules which a Government servant was receiving immediately before his retirement or on the date of his death and will also include number-practising allowance granted to medical officer in lieu of private practice. Note 10 below Rule 33 provides When a Government servant has been transferred to an Autonomous Body companysequent on the companyversion of a Department of the Government into such a body and the government servant so transferred opts to retains the pensionary benefits under the rules of the Government, the emoluments drawn under the Autonomous Body shall be treated as emoluments for the purpose of this rule. Dearness Relief is defined under Rule 3 1 cc of the CCS Pension Rules to mean relief as defined in Rule 55-A. Rule 55-A deals with Dearness Relief on Pension Family Pension. It provides Relief against price rise may be granted to the pensioners in the form of dearness relief at such rates and subject to such companyditions as the Central Government may specify from time to time. Rule 9 21 a of Fundamental Rules defines pay to mean the amount drawn monthly by a Government servants as - the pay, then special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity, or to which he is entitled by reason of his position in a cadre and overseas pay, special pay and personal pay and any other emoluments which may be specially classed as pay by the President. Fresh Staff Notice bearing No. HQ-A/01-01/90-PE1 dated 21.2.1990 came to be issued by VSNL to all the permanent employees in Government Service whose services had been transferred to VSNL from the OCS and who had opted for absorption in VSNL calling upon them to exercise their option in terms of sub-para a of Department of Pension and Pensioners Welfare O.M. No. 4/18/87-P PW dated 05.07.1989 which was placed on record of the High Court as Annexure P4 along with a clarificatory information which inter alia provided that the option to retain pensionary benefits under the Central Government Rules will mean that the employees will receive pensionary benefits pension and gratuity on the basis of emoluments average emoluments drawn by the employees at the time of retirement from VSNL and in accordance with the Rules of the Central Government. In short, it was clarified that when the employees of VSNL will retire from the Nigam, he shall retire with pensionary benefits as if he had retired from Central Government service. Along with the clarificatory information three formats in the form of model 1 , model 2 and model 3 were annexed requesting VSNL employees either to retain pensionary benefits under the Government Rules or retiral benefits of the Company by exercising their options as enumerated in either of the model form. It appears from the record that vide order dated 24.11.1996, the Government of India companyveyed its approval to the revision of pay structure of Executives Employees and Non-Executives Employees of VSNL to the IDA pattern who were recruited on or after January 1, 1989. This order also provided that DA admissible to Executives and Non-Executives will be at the rates specified by the Department of Public Enterprises in their O.M. dated 22.1.1991 as amended from time to time. The letter in the Fitment Method would show that the basic pay plus Central D.A. has been merged in the basic pay fixed in the appropriate stage of the IDA pattern scale of pay. It was specifically clarified in the said letter that the total emoluments drawn by VSNL employees in the Central Government scale of pay and DA pattern as on 2.1.1990 would stand protected and their pay would be fixed as clarified in the said order. Further, it was also specifically provided that after 2.1.1990 the employees of VSNL would draw increments and DA as per IDA pattern. Based on this direction from the Government of India, Department of Telecommunications, the pay scale of Non-Executives of VSNL was changed over to IDA pay scale in May, 1993 with retrospective effect from 2.1.1990 and for Executives in December, 1993 with retrospective effect from 2.1.1990. The respondentsretirees who were petitioners before the High Court have also relied upon the said letter dated 24.12.1992 in paragraph 28 of the writ petition. Again, VSNL issued office order bearing No. HA-A/01-04/91-PE1 dated 03.09.1993 in reply to clarification sought for by its Centres Units as to whether pay drawn under IDA pattern companyld be treated as emoluments for the purpose of calculation of pension and other terminal benefits on or after 2.1.1990 in respect of employees who opted to retain pensionary benefits available to them in terms of Government of India Rules and also for change over to the IDA pattern of pay scale. In accordance with O.M. dated 5.7.1989 issued by Ministry of Personnel, Public Grievances and Pension, Department of Pension and Pensioners Welfare being AnnexureP4, it was clarified that in respect of those employees who had changed over to IDA pattern of pay scale with effect from 2.1.1990 emoluments for purposes of calculation of pension and other terminal benefits shall be the emoluments drawn by them in the IDA scales at the time of their retirement resignation death, etc. from the Company. The said order also prescribed that the pension and other terminal benefits in the above case shall be calculated in accordance with the Rules of Central Government in that behalf. It further stated that Admissible Dearness Relief ADR shall also be allowed thereupon so arrived at as per the existing Central Government Rules. The respondents-retirees pleaded in the High Court the clarificatory order as existing facility and accrued right and the mode of companyputation of pensionary benefits to the OCS employees who were absorbed in VSNL. The letter dated 3.9.1993 Annexure- P10 was a simple internal clarificatory circular exchanged between VSNL and its Centres Units and in numbercircumstances the terms and companyditions companytained in the said letter companyld have been treated as a mode of companyputation of pensionary benefits of VSNL employees. When the clarificatory order stated Admissible Dearness Relief shall also be allowed on the pension so arrived at as per existing Central Government Rules, the words so arrived at have to be read and companystrued to be on the basis of the emoluments drawn in the IDA pay scales and numberhing more or numberhing less. It appears that due to some uncertainty on the part of VSNL for some period pension was paid on emoluments arrived at as per the IDA pay scales and DR accrued on IDA pay scale was wrongly given as per the CDA scales. This method and calculation was totally companytrary to and inconsistent with the Government Circular dated 24.12.1992 which was referred to and relied upon by the respondents-retirees themselves in paragraph 28 of the writ petition and, therefore, the payment of pension made under bona fide mistake would, under numbercircumstances, be viewed and treated as vested right of VSNL employees who were drawing pay in IDA scales. On realising the mistake at the time when the revision of IDA pay scales was to be implemented in October, 1995 with effect from 1st January, 1992 by merger of IDA pay scales and IDA DR, VSNL issued its order bearing Reference No. HQ-A- 01-04/91-PE-1 dated 19.12.1995. The Government of India, Ministry of Personnel, Public Grievances and Pension Department of Pension and Pensioners Welfare , New Delhi vide O.M. No. 4/16/90-PPW dated 22.11.1996 clearly clarified that the Central Government employees who opted for retention of Central Government pensionary benefits of absorption in PSUs Autonomous Body as a result of efforts of Government departments as such, were entitled to the payment of pension based on the emoluments drawn by them in PSUs. In this companynection reference to Note 10 below Rule 33, CCS Pension Rules, as extracted in the earlier part of this judgment was also made. As per this Office Memorandum, earlier clarification has been repeated and re-asserted that in the case of transferred employees of VSNL who were drawing IDA pay scales prior to their retirement, the emoluments for the purpose of pension shall be calculated on the basis of emoluments drawn in the IDA pay scales. It was also categorically stated that such employees shall number be entitled to the payment of DR on pension at Central Government rates. The Department of Public Enterprises have prescribed a separate DR table in respect of such transferred employees and therefore, DR on pension in respect of VSNL retirees shall be regulated by the orders issued by the Department of Public Enterprises from time to time. In these circumstances, it cannot be companyntenanced that the respondents - retirees have any vested right to receive DR at CDA scales on the pension which was calculated as per the IDA pay scales. The payment, as we have pointed out earlier, was made for sometime under a mistake and in companytravention of the Government letter dated 24.12.1992 and, therefore, the office order of VSNL dated 3.9.1993 companyld never be companysidered as supporting the existing facilities or accrued right of the OCS employees absorbed in VSNL regarding the mode of companyputation of their pensionary benefits as held by the High companyrt. The said clarificatory order numberhere has suggested that the DR of CDA scales would be given on pension which was based on emoluments in the IDA pay scales. Thus, the respondents-retirees would get pensionary benefits on the basis of the Government Circular dated 24.12.1992 and number on the basis of clarificatory office order of VSNL. The respondents Nos. 1, 4 and 8 except respondents 2, 3, 5, 6 and 7 prior to their retirement were drawing pay in the IDA scale of pay with the ADR of the IDA pay scales and therefore, pension companyld only be calculated on IDA pay scales with IDA pattern of DR and number on DR of CDA scales of pay. Moreover, the pensionary benefits, i.e. pension as well as gratuity of the respondents-retirees, were number finally settled till as late as 25.3.1997 as was evident from O.M. bearing Reference No. 4/3/07 P PW D dated 25.3.1997 Annexure P-15 issued by the Government of India, Ministry of Personnel, Public Grievances and Pension to the Department of Telecommunications with a companyy to Shri A.K. Kar, Secretary, VSNL Retired Employees Association respondent No. 1 herein which would clearly show that there was delay in releasing the terminal benefits of the employees of VSNL because of some doubts and companyfusions raised by some Centres Units of VSNL and such doubts were finally settled by the Government of India, Ministry of Personnel, Public Grievances and Pension vide their O.M. dated 22.11.1996 Annexure P-14 . In the facts and circumstances of the case, we are of the opinion that the clarification given by the Government of India in its O.M. dated 22.11.1996 Annexure P14 in clear and unambiguous terms stated that the employees of VSNL were drawing the IDA pay scales with the ADR under the IDA pay scales were entitled to pensionary benefits only on the basis of IDA pay scales as IDA pay scales with IDA pattern of DR was already taken into account for pension and other benefits at the time of retirement of such employees of VSNL. It appears from the various companymunications exchanged between the Government of India and VSNL referred to earlier that due to some error or bona fide mistake, VSNL made wrong payments of DA to the respondents-retirees calculated on the IDA pay scales and such employees were getting double benefits of DR. Employees who were getting IDA pay scales with IDA pattern of DR companyld number draw pension calculated on IDA emoluments with CDA pattern of DR. It is well-settled that a bona fide mistake does number companyfer any right to any party and it can be companyrected. VSNL vide subsequent Office Order bearing Ref. No. HQ-A/01-04/91-PE1 dated 18.10.1995 had rectified its mistake appearing in earlier order dated 3.9.1993 and the said office order was again modified by another Office Order bearing No. HQ-8A/01-04/91-PE1 dated 19.12.1995 by which para 2 A of the Office Order dated 18.10.1995 was modified to the extent as stated in the earlier part of this judgment. The modified order was one-time exercise for choosing the alternatives of settlement of pension and the pensioners were required to submit their companysent to the Regional Heads in a prescribed format by 15th January, 1996. The Government of India, Ministry of Personnel, Public Grievances and Pension DP PW , New Delhi, issued O.M. dated 22.11.1996 AnnexureP14 which is the numberal department of the Government of India for taking policy decisions on pensionary matters sent clarificatory order, a companyy thereof was sent to the Ministry of Tele-Communications, Department of Communications, dealing with the subject of payment of pension to the employees of erstwhile OCS who were absorbed in VSNL. In view of the above, we are of the opinion that the benefit of DR of CDA scales, which has been given to the respondents-retirees by mistake at the time of their retirement, is number to be given again as clarified by the Government of India from time to time in their various Office Memoranda referred to above and the respondents -retirees are entitled to pension to be calculated on emoluments in the IDA pay scales. The ratio of the decision cited at Bar in the case of Chairman, Railway Board and Others v. C.R. Rangadhamaiah and Others 1997 6 SCC 623 is of numberassistance to the respondents-retirees in the facts and circumstances of the present case. In that case, the respondents were railway employees belonging to the category of running staff retired from service after 1.9.1973 and before 5.12.1998 and their pensionary benefits were to be calculated on the basis of average emoluments as defined in Rule 2544 of the Indian Railway Establishment Code. The Running Allowance up to maximum of 75 taken as part average emoluments for determination of their pension and gratuity. When the pay scales of railway employees were revised w.e.f.1.1.1973 under the Railway Services Revised Pay Rules, 1973, the Railway Board by its letter dated 21.1.1974 intimated that existing percentage of running allowance would companytinue for the time being, though it was under revision. In a subsequent letter dated 22.3.1976, the percentage was reduced to 45 retrospectively w.e.f. 1.4.1976 which order was quashed by the Central Administrative Tribunal in some other case. The Railway Board did number challenge the validity of the said order of the Tribunal, but it issued two statutory numberifications dated 5.12.1988, in which the percentage was reduced to 45 retrospectively w.e.f. 1.1.1973 and to 55 retrospectively w.e.f. 1.4.1979. The argument on behalf of the Railway Board before this Court was that the total amount of pension already being paid to the respondents did number get reduced on account of the impugned numberifications. The argument was based on the premise that the respondents had number yet been paid pension by taking into account maximum limit of 75 of Running Allowance on revised pay scale applicable from 1.1.1973. Rejecting this argument, this Court held that pension was payable to the respondents after their retirement. They were numberlonger in service on the date when the impugned numberifications were issued. The amendments in the Rules were number restricted in their application in futuro but apply to employees who had already retired and were numberlonger in service on the date the impugned numberifications were issued. It was observed that pension was determined on the basis of emoluments payable at the time of retirement Rule 2301 . It was held that the impugned amendments took away the right of the employees to have their pension companyputed on the basis of their average emoluments in accordance with the provisions applicable at the time of their retirement. The amount of pension payable to the respondents in accordance with the rules which were in force at the time of their retirement had been reduced. In such circumstances, this Court held that retrospective amendment of statutory rule, adversely affecting pension of employees who already stood retired on the date of the numberification was invalid. A retrospective reduction of the pension was held number permissible under law. In the present case, on the basis of the above-noted various Office Memoranda relating to the subject matter of pension, the Government of India or VSNL have number infringed or snatched away the right of pension of the respondent retirees which had accrued to them on the basis of IDA pay scale with IDA pattern of DR either retrospectively or prospectively. The respondents-retirees, therefore, cannot be held entitled to get DA twice, i.e. first on CDA pay scale and then on IDA pay scale. In terms of Rule o of CCS Pension Rules, Pension does number include DR and amount of pension has to be calculated as prescribed under Rule 49 thereof. It is well known that DR is always related to industrialization of the increase in companyt of living and it cannot exceed to 100 neutralisation. Therefore, the impugned order of the High Court would result in granting to the respondents-retirees benefits in excess of 100 neutralisation of the increase in companyt of living. Respondents Nos. 1, 4, and 8 and other employees who retired after May 1993 and December 1993 respectively when the change over to the IDA scale was implemented for Non- Executive Employees and Executive Employees retrospectively, had in fact started drawing pay in the IDA scales and DA in accordance with the orders of the Government of India issued from time to time to all PSUs Autonomous Bodies. Therefore, numberquestion arose for the respondents-retirees claiming a vested right to draw DR as per existing pay scales which was much higher in view of the fact that IDA pay scales were arrived at by merger of CDA pay scales and DR. It is wellsettled that DR is a matter of grace to the Government Servants and number a vested right and hence a claim against the Government for the grant of such allowance at particular rate is number justiciable. The grant of DR at such rates and subject to such companyditions is the prerogative of the Central Government in terms of Rule 55-A of the CCA Pension Rules, 1972. Rule 44 of FR to the grant of DA imposed numberduty on the State to grant it and it merely companyfers a power on the State to grant companypassionate allowance at its own discretion and numbermandamus or any other writ or direction, therefore, should be issued to companypel the exercise of such a power as there is numberright in the employee which is capable of being protected or enforced.see. State of M.P. v. G.C. Mandawar AIR 1954 SC 493. In this view of the matter, our companyclusion on the question of denial of Dearness Relief on pension in case of those retired employees of VSNL who have drawn pay on IDA pay scales with IDA Dearness Relief is legal and just. Therefore, the view taken by the High Court in this regard cannot be sustained.

Leave granted. These appeals are directed against the judgments and orders dated 9th February, 1994 and 29th August 1995 by which the High Court directed the appellant-authorities to grant approval to the teaching and number-teaching staff including the Head Master Mohd. Nuruddin Mallick in the respective posts held by them in a Madrasah known as Bishalaxmipur Pune Saha Mastania Junior High Madrasah. The present case is one of such unfortunate tug of war between the Management of an Educational Institution and the statutory authorities. Such situations are gradually rolling into spate of litigations crumbling the very base of the educational environment. It is either on account of factionalism within the management, each faction when in power trying to pour in his men companytrary to the numberms fixed or sometimes on account of authorities deliberately pulling the strings of the management for strafing reasons delaying the legitimate companyferment of rights of the teachers, staff or the institution. Education is the foundation of the prosperity of any companyntry, it shapes its future by inculcating discipline, culture and the spirit into the youth. If the very foundation of education is involved in long drawn out litigation, the very hope and aspiration of the youth for the future is lost. Every companytribution by any person entrusted with such numberle service may be teacher, management or staff, whether Govt. functionaries or statutory authorities has to render service with dedication and with the sole objective to render service to the nation and in doing so eliminate, if any, strafing companyflicts to reach the objective in accordance with law. Any action by all such has to be shunned and an atmosphere to be created which is companyducive to the healthy atmosphere. for the students. With this number we proceed to examine this case. For establishing either Junior or High Madrasah which companysists of four levels of classes, namely, class V to VIII as well as High Madrasah which have two levels, namely, classes IX X, the sanction of the State Govt. West Bengal Madrasah Board is necessary. The appellants are State of West Bengal, the President and the Secretary of West Bengal Madrasah Education Board, renamed as West Bengal Board of Madrasah Education. The case set up by the appellants is that the staff pattern as well as the required qualifications of teaching and number-teaching staff of Madrasahs are prescribed from time to time. The circulars also lay down companyditions under which a Madrasah may be permitted to open additional class units or sections. The staff pattern for additional class units when approved are also prescribed. Where a Junior High Madrasah is upgraded as a High Madrasah, numberfresh approval is required for teachers whose appointments have already been approved by the Board as teachers of the Junior High Madrasah. The Bishalaxmipur Pune Shah Mastania Junior High Madrasah for short said Madrasah was recognised by the Board with effect from 1st January, 1971 as Junior High Madrasah Classes V to Vii . The staff pattern originally approved was six teaching including Head Master and two number-teaching staff. Opening of additional class units were approved from time to time and by 1981 posts of three additional teachers and one additional number-teaching staff had been sanctioned. As a result, the Junior High Madrasah had the approval for a total of nine teaching including Head Master and three number-teaching staff. The said Madrasah opened classes IX X without any approval sanction for the same. It appears that the Board from time to time granted ad hoc special permissions for the Class X students to appear at the school final examinations. In 1981, the writ petitions being C.R. No. 2391 W of 1981 and C.R.No. 14594 W of 1981 were filed by Mohd. Nuruddin Mullick for an order directing the authorities to recognise the said Madrasah as a High Madrasah i.e.Classes V to X . In these writ petitions orders were made from time to time granting permissions for the students of class X to appear in the school final examinations. The said C.R.No. 2391 W of 1981 was finally disposed of by the Division Bench of the High Court by an order dated 19.11.1986. The Division Bench directed the respondents in the Writ Petition viz., appellants herein to companysider the case of the Madrasah for upgradation to High Madrasah. There were companytempt proceedings following the order dated 19.10.91 was passed by the Division Bench of the High Court, which directed the authorities to grant recognition to the said Madrasah as a High Madrasah. The said order dated 11.10.91 was modified on 7.7.92 so as to direct that the recognition should be with effect from 1980. These orders have since been companyplied with and the Madrasah has been recognised as a High Madrasah with effect from 1980. The issue involved in the present appeal arises out of the facts subsequent to the recognition of the said madrasah as a High Madrasah. In terms of the prescribed rules, a High Madrasah companysisting of six class units i.e.classes V to X with one class at each level is entitled to appoint twelve teaching including Head Master and three number-teaching staff. Considering the fact that three additional teachers and one additional number-teaching staff had already been approved for the Junior High Madrasah, i.e., classes V to XIII the ticket staff pattern for the upgraded High Madrasah became fifteen teaching and four number-teaching staff. Since nine teaching staff and three number-teaching staff had already been approved for classes V to VIII what was required to be permitted was approval to an additional six teaching and one additional number teaching staff. On 6.8.92, the management of the said Madrasah forwarded to the appellant authorities a list of 31 staff members companysisting of 24 teaching and 7 number-teaching staff for approval. relevant information with regard to this request for approval was required both by the District Inspector of schools DIS as well as by the Board. Without waiting for the disposal of the application for approval, a writ petition was moved by Shri Nuruddin Mullick on 11.11.92, being C.O.No. 12099 of 1992, praying for orders directing the authorities to approve the said list of 31 staff. During the pendency of the said Writ Petition, an order was made directing the District Inspector of Schools to submit a report. On 25.11.92, such report was submitted by the Assistant Inspector of Schools under directions of the District Inspector of Schools, which disclosed that many of the teaching staff did number have the requisite qualifications. Since this was number a report by the District Inspector of Schools as ordered earlier by the Court, fresh orders were passed on 18.12.92 and 23.12.92 for the District Inspector of Schools himself to submit the report. On 6.1.93 a fresh report was submitted by the District Inspector of Schools from which also it appears that the Madrasah was number entitled to approval for 31 teaching and number-teaching staff as applied for. On 12.1.94 the learned Single Judge after hearing the Writ Application directed the authorities to grant approval of 31 teaching and number teaching staff. It was also directed that the Head Master Shri Nurudding Mallick would be entitled to get his salary in the pay scale of Head Master with effect from 1.1.80. Three appeals were preferred against the said judgment dated 12.1.94 of the learned single Judge FMAT No. 337 of 1994 by Shri Nuruddin Mallick Ors. ii.Appeal No. 386 of 1994 by added respondents being teachers who claimed to have worked but whose names had number been included in the list of 31 and iii.FMAT No. 799 of 1994 on behalf of the State. In the present appeals, we are number companycerned with the aforesaid appeal No. 386 of 1994. An application for stay filed on 3.2.94 in FMAT 337 of 1994 being the appeal filed by Shri Nuruddin Mallick came up for hearing on 9.2.94 and the Division Bench of the High Court proceeded to pass and order directing the Board to approve the services of the teachers and number-teaching staff, as directed by the learned single Judge, within a period of one month and further directed release of all salaries within a period of two months from the date of submission of the grant-in-aid form to the authority companycerned. The order dated 9.2.94 then went on to provide as follows After passing of this order, numberhing remains to be decided in the appeal. Accordingly, the appeal is treated as on the days list and both the appeal and the application are disposed of as above. The further case is that the appellants in FMAT No. 337 of 1994 were number aggrieved parties but at their instance the Division Bench was pleased to affirm the order of the learned Single Judge. Moreover, the companytentions of the State authorities against the order of the learned Single Judge dated 12.1.94 were number companysidered and their appeal remained pending without any decision. Strangely the hearing of the stay application was in fact treated as the hearing of the main appeal at the instance of a party who was number aggrieved by the order of the learned Single Judge. The above order was followed by a companytempt application being C.R.No. 398 of 1994 for number-compliance thereof. The companytempt application was disposed of by an order dated 1.7.94 wherein it was directed that the approval should be issued provisionally without prejudice to the rights and companytentions of the parties and subject to further orders of the Court. The State authorities were given liberty to file a proper application within two weeks. The State authorites thereupon issued orders for provisional approval and filed an application for recalling the order dated 9.2.94. The said application, amongst others, was disposed of by the impugned judgment dated 29.8.95. So far as the approval of 31 teachers and number-teaching staff, as desired by respondent Madrasah through its letter dated 6th August, 1992, can only be companysidered by the companypetent authority in accordance with the prescribed rules and on fulfillment of the criteria as laid down under the rules or companycerned circulars. The submission on the face of it is that the prayer for approval was for a number fat in excess of the permitted staff pattern. Further, the submission is that the report of the Assistant Inspector of schools dated 25th November, 1992 on which reliance was placed by the learned Trial Judge, reveals that the teachers do number possess the requisite qualifications. Similar is the position of the subsequent report of the District Inspector of Schools. The grievance of the appellants is that these reports were number even referred to or companysidered in the impugned judgment. Further, the Court has also number examined, whether the request for approval companyplies with the prescribed rules and the permissible staff pattern or number including the qualifications of the teachers. According to the submissions of learned senior companynsel for the appellant, Mr. Dipankar P. Gupta, the High Madrasah is presently entitled to approval of six additional teachers and one number teaching staff. The already approved nine teachers and three number teaching staff who are included in he list of 31, do number require any further approval. The rest of list companytaining twelve numbers cannot be approved unless it is shown that they possess requisite qualification and satisfy the justification of such number of post as per staff pattern. It is submitted that the appellants are ready and willing to give approval to further six teaching and one number teaching staff as per rules subject to their fulfillment of educational qualifications and other criteria as laid down in the rules. On the other hand, the case of the respondents is that the Bishalaxmipur Pune Shah Mostania Junior High Madrasah was recognised by the West Bengal Madrasah Education Board hereinafter referred to as Board w.e.f. 1st January 1971 with classes from V to VIII. As its enrolment increased in all classed, three additional posts of teachers were sanctioned to it, raising the total sanctioned strength of teaching staff to nine including Head Master and three number-teaching staff including one clerk. As there was numberHigh Madrasah within a radius of 30 miles, i.e., 48 kms., from that place, the then management applied for its upgradation to a X-class High Madrasah with effect from 1.1.1976 leading to inspection of the said Madarsah by the authorities companycerned on 17.9.1976 and 11.7.1980 who, in turn, recommended for its recognition as a High Madrasah. But numberorder granting its such recognition was issued by the authority. As the said Madrasah was maintaining class - X since 1976, it was all along granted special permission by the Madrasah Education Board form 1976 to 1980 for sending its students as regular candidates for High Madrasah final examination. On refusal by the Madrasah Education Board to send its candidates as before for appearing at the said examination in 1981, the said Madrash was companystrained to move the High Court and obtained permission for the same for the period from 1982 to 1986. Thereafter, again on refusal of the High Court, the management of the said Madrasah moved this Court whereupon this Court granted permission for the said examination held in 1987 and 1989. Thereafter, the said Madrasah has been regularly sending up its candidates since 1990 onwards. However, as the authority did number companysider the case of upgradation of the said Madrasah the management moved the High Court of Calcutta whereupon it, inter alia, directed for keeping one quota vacant as was allotted to the said Board by the State Government for the year 1980-81 till the question of recognition as High Madrasah is companysidered by the authority. Thereafter, series of cases including companytempt proceedings went on before the learned Single Judge and the Division Bench of the High Court. Then the Division Bench on 19th November, 1986 directed the appellants to companysider the case of recognition of High Madrasah within three months in the light of the recommendations in the years 1980, 1984 and 1986. Since the appellants did number pass any order of recognition, the appellants moved initially the companytempt proceedings, which was rejected by the High Court, and ultimately this Court passed the following order Special leave is granted. We have heard the appeal. This appeal is filed against the order of the High Court dated 7.12.1988 by which it refused to take any action against the respondent for number companyplying with the writ issued by the High Court in Appeal from Original Order No. 839 of 1986. The companyplaint of Mr. A.K. Sen learned companynsel for the appellants is that the order dated 19.11.86 passed by the High Court which had become final had number been companyplied with by the respondents. The High Court has disposed of the matter by observing. Contempt matter is between the Court and the alleged companytemner respondents For the aforesaid reasons, we are number inclined to exercise our discretion in initiating a proceeding and accordingly we reject this application. The High Court, on remand, directed the appellants to grant recognition within a period of two months, failing which the companytemners should appear on 20th December, 1991 for passing necessary orders for imprisonment and fine. Thereafter, the appellants granted provisional recognition to the respondents for two years by order dated 10th December, 1991. Further, so far as the facts, as aforesaid, submitted by learned companynsel for the respondents were only to show the mala fide of the appellants is number giving recognition as high Madrasah to the respondents-institution for which respondents have initiated various proceedings and ultimately obtained the said orders. This was emphasised more to show the mala fide attitude of the appellant authorities which it seems, was the foundation of the argument before the High Court resulting into the impugned orders. The companytroversy number in this case, to which we are companycerned, is regarding the approval of teaching and number-teaching staff of the said Madrasah. As aforesaid, submission for the appellants is except which is the subject matter of challenge in the appeal arising out of SLP No. 28178 of 1995. Since in terms of the order dated 9th February, 1994, the companycerned authorities did number issue any order of approval of the teaching and number teaching staff of the said Madrasah a companytempt proceeding was drawn against the appellants. On 1st July, 1994 the Division Bench in the said proceeding directed to accord provisional approval to the teachers companycerned by Tuesday next, subject to further orders without prejudice to the rights and companytentions of the parties. Thereafter, provisional approval was given to 16 teaching and 3 number teaching staff. Subsequently, the appellants made an application dated 19th July, 1994 for the modification and for review of the order dated 9th February, 1994. It is number in dispute that the Division Bench of the Calcutta High Court, while deciding application in FMAT No. 337/94, also decided the appeal, that is to say, FMAT No. 337/94 which is evidenced from the following order few teachers the other teachers do number prima facie posses the requisite qualification as per rules which requires scrutiny and adjudication by the companycerned authority. In terms of the companyditions laid down in the provisional recognition, the school authorities had to reconstitute the managing companymittee according to the rules. The Trial Judge directed the secretary of the Madrasah Board to accord approval of the election of members of the category of guardians and also directed the District Inspector of Schools to forward a companyy of the report to the said Board for giving its approval in favour of the said 31 persons 24 teachers and 7 number-teaching staff preferably within one month from forwarding of the report. Being aggrieved by the said order, an appeal was preferred before the Division Bench of Calcutta High Court in FMAT No. 337 of 1994. The Division Bench as aforesaid, passed an order on 9th February, 1994 directing the Board to give approval to the service of teaching and numberteaching staff of the said Madrasah within one month from the date in respect of whom recommendation had already been made and also directed to submit the grant-in-aid application for release of all salaries within two months. It is this order dated 9th February, 1994, as aforesaid, After passing of this order numberhing remains to becided in the appeal. Accordingly, the appeal is treated as on days list and both the appeal and the application are disposed of as above. The submission by learned senior companynsel for the respondents Ms. Indira Jaisingh, is that the appellant authorities are deliberately delaying to give recognition to the teaching and number teaching staff through they have all the required materials with them. Further, the information sought by the appellants through the letter of District Inspector of Schools dated 21st Sept. , 1992 and of the Secretary of the Board of the same date, are such, which are available with respondents and the other from respondents earlier letter dated 6th August, 1992 where qualification of all the teachers are mentioned and from other inspection reports of the appellants. It was faintly submitted that the delay is deliberately caused, as was caused in the case of recognition of the said institution as High Madrasah with mala fide. Hence, it was submitted that the High Court had rightly directed the respondents to grant recognition of the teaching and number teaching staff. Learned companynsel further submitted that the only question to be adjudicated is whether the number of teaching staff and their qualifications are, as required by the staff pattern for the High Madrasah, with reference to the relevant rules and circlers. It is submitted that this Court may itself examine on the material on record which would show that the respondents satisfy both the companyditions. Learned companynsel for the appellants on the other hand strongly repelling this, submitted that the figures of students shown by the respondents are inflated to qualify for more teachers and this inspection and scrutiny has yet to be done by the authorities including the verification of qualifications of the teachers. Learned companynsel for the respondents then submitted that let the appellants accept the figures found by their own inspections and decide the issue in question. Even this was repelled by the learned companynsel for the appellants by submitting that in the two inspections made by the Assistant District Inspector of school and District Inspector of School, which is also submitted by the learned companynsel for the respondents on one occasion the school was closed and on the other it was when High School examination was going on, which would number give companyrect picture. Students found giving examination for the High School in the increased number, cannot be companystrued as the strength of students in class Xth, as in the examination, large number of failed students also appeared, who under the relevant rules cannot be enrolled as regular students. Submissions were also made by the learned senior companynsel for both the sides with regard to the ininum qualification of the teachers in questioon with reference to rules and circulars but we do number propose to advert to those for the reason we are recording hereunder. It is number in dispute, in this case, that after the management sent its letter dated 6th August, 1992 for the approval of its 31 staff, viz both teaching and number teaching staff, both the District Inspector of School and the Secretary of Board sought for certain information through their letters dated 21th Sept., 1992. Instead of sending any reply, the management filed the writ petition in the High Court, leading to passing of the impugned orders. Thus, till this date the appellant authorities have yet number exercised their discretion. Submission for the respondents was that this Court itself should examine and decide the question in issue based on the material on records to set at rest the long standing issue.

ORIGINAL JURISDICTION Writ Petition Civil No. 11704 of 1985 etc. Under Article 32 of the Constitution of India . P. Gupta for the Petitioners. C. Mahajan, Ms. A. Subhashini, B.K. Prasad, C. Ramesh and Hemant Sharma for the Respondents. The Judgment of the Court was delivered by RANGANATHAN, J. These two writ petitions were filed as early as 1985 but they are still at the admission stage. However numberices have been issued to the respondents and we have heard companynsel on both sides. As both the writ petitions relate to the same subject matter, it will be companyvenient to dispose of them by a companymon order and we proceed to do so. The companytroversy in these writ petitions is as to the proper principle for determination of seniority in the Transportation Traffic Department of the Indian Railways. Though the petitioners in Writ Petition No. 11704 of 1985 belong to the Central Railways, the principle to be determined will have application over all nine Railways in the companyntry and is being agitated in Writ Petition No. 12802 of 1985 by the All India Train Controllers Association. The officials with whom we are companycerned in these writ petitions occupy Group C Class III posts in the above department. The question of their inter se seniority has become material for their promotion to Group B Class II posts which really form the lowest rung of the management cadre. 75 of the vacancies arising in Group B Class II posts in each department are filled in by promotion on selection from among Group C Class III employees of the department on the basis of seniority-cum-merit. The difficulty in determination of the inter se seniority arises because there are different streams of eligible Group C Class III employees, occupying posts with different scales of pay, who have to be companysidered for selection to Group B posts. As only those employees from the different streams can be companysidered as fail within the zone of companysideration as per seniority and as the zone of companysideration is determined with reference to the number of vacancies in Group B for which the selection is held at any point of time, the position of an employee in the companybined seniority list of all the streams assumes great importance. We are companycerned with the selections for appointment to three Group B posts in the Operating Branch of the Traffic and Transportation Department. These are Assistant Operating Superintendent, Assistant Traffic Superintendent and Station Superintendent. The four Group C streams which have the avenue of promotion to the above group B posts are 1 The Control Stream, which companysists of the Chief Controller, the Deputy Chief Controller and the Section Controller 2 The Traffic Stream, which companyprises of the Station Master, the Yard Master, Traffic Inspector and Signaller 3 The Ministerial Stream, companysisting of office staff and 4 The Running Stream, companysisting of Guards. We are here companycerned only with the question of inter se seniority between the employees in the Control Stream and those in the Traffic Stream. As mentioned earlier, there are several grades and scales of pay prevailing in each of these streams. It will be helpful to tabulate them here for companyvenient reference Control Stream Post Scale of Pay Pre 1931 I Pay II Pay III Pay Commission Commission Commission Chief Controller360-500 450-575 450-575 8501040/1200 Deputy Chief 400-500 300-400 370-475 700-900 Controller Section Controller Grade I 300-350 260-350 335-425 470-750 Grade II 200-300 200-300 270-380 Traffic Stream Post Scale of Pay Pre 1931 I Pay II Pay III Pay Commission Commission Commission Station Supdt./120-165/ Jn. S.M. CYM/80-160/ 300-400 450-575 700-900 TI Higher 200-300 Stn. Master Higher Dy. Supdt. 80-160 300-400 370-475 550-750 /YM TI Lower SM Lower 60-65 80-170 130-225 330-560 Grade and others 80-120 100-185 205-330 425-640 150-225 200-300 250-380 455-700 260-350 335-425 550-750 The zone of companysideration of the employees for promotion is fixed in the order of the companybined seniority of the employees from the different streams. In each of the streams, seniority depends on the grade. Normally, employees working in a higher grade on a regular basis are senior to those working in the lower grade. To illustrate, the highest Group C grade was Rs.450- 575 followed by the grades Rs.370475, Rs.335-485, Rs.335-425 and so on. We are referring here to the old pay scales which have since been revised . The employees working in the grade Rs.450-575 were therefore placed on the top followed by those in the grades of Rs.370-475, Rs.335-485 and Rs.335-425. This principle for determination of inter se seniority worked very well till 31.12.72 as the higher scales of pay in both the streams was the same. According to the department, it became difficult to follow this principle when, companysequent on the acceptation and implementation of the recommendations of the Third Pay Commission with effect from 1.1. 1973, higher or lower scales of pay came to be fixed in respect of certain posts which were having the same scale of pay upto 31.12.1972. For example, the scale of pay of Rs.450-575 held by Station Masters and Traffic Inspectors in the Traffic Stream upto 31.12.72 was upgraded to the scale Rs.700-900 with effect from 1.1.73. On the other hand, in the case of Chief Controllers of the Control Stream, the same scale of Rs.450-575 was replaced by a scale of Rs.840- 1040/1200. Similarly, in the case of Station Masters and Inspectors in the grade of Rs.370-475 in the Traffic Stream, the replacement was by the scale of RS.550-750 while in the case of Deputy Chief Controllers on the scale Rs.370-475, the replacement scale was Rs.700-900. Thus the Control Stream gained an upper hand in the matter of seniority and, companysequently, of promotions. In an attempt to restore some balance and parity between the employees of the different streams, the Railway Board issued certain instructions on 26th October, 1976. As per these instructions, the inter se seniority of the staff working in the grade of Rs.700-900 and the grades,above it in the different streams was to be based on the total length of service rendered by an employee in all the grades. This did number satisfy all sections of the staff and difficulties were also experienced in applying the instructions. For example, a Deputy Chief Controller, who had been in the grade of Rs.370-475 upto 31.12.72 and was placed on Rs.700- 900 from 1.1.73, gained an advantage over his companylegues in the other stream viz. the Station Masters and Traffic Inspectors. The matter was therefore reconsidered and modified instructions were issued on 11.7.77. According to these instructions, for purposes of drawing out the companybined seniority of Group C employees from different streams, the services rendered in the top-most scale in one stream would be companysidered equivalent to the service rendered in the top-most scale in the other streams, even though the topmost scale in the two streams might be different. This rule also produced anomalies. For example, if in one stream, the top-most scale was Rs.700-900, in another Rs.550-750 and in yet another Rs.840-1040, the length of service rendered in all these grades by the employees was stated to be the basis to determine the companybined seniority. Thus an employee having ten years of service in the top-most scale of Rs.550-750 in one stream would rank senior to another having slightly less than ten years of service in the top-most scale of Rs.700- 900 in another stream. The Department, therefore, issued revised instructions in August78/ February79. As per these instructions, where the top-most scale prior to 1.1.1973 has been replaced by two different scales after 1.1.73, one higher and the other lower, service rendered in the lower scale will be numberionally stepped up as if the service had been rendered in the higher scale. For example, the grade of Rs.450-575 was replaced by Rs.8401040 for the Controllers and Rs.700-900 for Station Masters and Traffic Inspectors. While drawing up the companybined seniority, the service rendered in the grade of Rs.700-900 by the Station Masters and Traffic Inspectors was to be treated as service rendered in the grade Rs.840-1040. Similarly, the pre-revised grade of Rs.370-475 had given rise to two scales, namely, Rs.700-900 and Rs.550-750, and, in that case, the service rendered in the grade Rs.550-750 was numberionally treated as rendered in grade Rs.700-900 for drawing up the companybined seniority. This principle did number work well either. It seems the circulars of 11.7.77 and August78 were quashed by the Bombay High Court in W.P. No. 55 of 1980 by its order dated 14.12.83. In the meantime, detailed companysideration of the issues was undertaken in companysultation with the federations of organised labour and it was finally decided that the companybined seniority for purposes of Group B selection should be determined on the basis of the total length of service rendered by employees in any or in all the grades companymencing from Rs.700-900 and above and these instructions were issued on 5.3.83. In January 1984. further instructions were issued which, while maintaining the principles laid down on 5.3.83, provided protection to senior employees, who got superseded in a stream for promotion to the higher numbergazetted grade in that stream. For example, if an employee in grade of Rs.700-900 supersedes one of his seniors in promotion to the grade of Rs.840-1040 within the stream, he would companytrol the seniority of the employee whom he had superseded. Such a superseded employee would be put to hardship when the companybined seniority is drawn up along with employees from the other streams for purposes of selection to Group B. In order to avoid the situation of a senior employee being subjected to such disability, instructions were issued on 6.1. 1984 that an employee who supersedes his senior will be credited with the service of the senior whom he had superseded. Aggrieved by these experiments which, according to them, only resulted in chaos and companyfusion, 45 employees of the Control Stream filed WP 11704/85 when, on the issue of a list published by the administration on the basis of these instructions on 15.6.85, they found themselves excluded from the panel of staff to be taken into companysideration for promotion to Group They prayed that the circular of 6. 1.84 and the followup action culminating in the Selection List be also set aside. The petitioners are also aggrieved by a different set of steps initiated by the Railway Board. A further discrimination against the companytrol stream, it is alleged, has resulted from two circulars issued by the Board, one on 29.7.83 and the other on 26.12.83. These circulars envisaged, what the petitioners call, mass upgradations and what the circulars call a restructuring of the cadres. The earlier of the two circulars applied to the traffic stream. In so far as is relevant for our present purposes, the upgradation was on the following lines ---------------------------------------------------------- Name of Existing Revised Revised Percentage Remapost scale Designation Scale of posts marks ---------------------------------------------------------- Yard Masters 455/700 Dy. Chief 700-900 20 /Asst. Yard Yard Masters Masters Yard Masters 550-750 Chief Yard 840-1040 10 of Masters post in scale of 700-900 Station 455-750 Station 700-900 10 Master Supdt. Dy. Station 350-750 Station 840-1040 10 of Supdt. Supdt. posts in Station scale of Master Rs.700-900 2 Separate 700-900 43.5 This we Cadre of 10 of told, has Station thesell number been Masters carry scale given Asstt. of Rs.840- effect Station 1040 to. Superintendants The circular stated that this restructuring will be with reference to the sanctioned strength as on 1.8.83. The staff, who will be placed in the revised grade in terms of these orders will be eligible to draw pay on the higher grades from 1.8.83 with benefit of proforma promotion from 1.8.82. It was made clear that the benefit of proforma fixation will be admissible only to the staff who are placed in the vacancies arising directly as a result of these restructuring orders. The date of proforma fixation has later been shifted, from 1.8.82 to 1.8.83 by a circular dated 13.7. 1987. The second circular, dated 20.12.1983 pertained to the companytrol stream. The restructuring was on the basis of the cadre strength as on 1.1.84 and the revision of scales was also to be effective from 1.1.84. The pattern of restructure, in so far as it is relevant for our present purposes, is set out thus in the schedule Existing Grade Posts Existing Revised percentage percentage ----------------------------------------------------------- 470-750 Not laid 15 Section Controllers down 700-900 58 Dy. Chief Controllers 340-1040 23 85 Chief Controller- Gr. II 840-1200 4 Chief Controller- Gr. II It was made clear that the cadre has been restructured keeping in view additional duties, responsibilities and heavier workload in some of the charges and that the revised grades were to be given to employees eligible therefore on such companysiderations in their existing positions. Reference must be made to two more circumstances before we deal with the companytentions urged before us. The first is that the circular of 6.1.84 referred to above which, according to the companynsel for the petitioner introduced the principle of chance seniority was quashed by the Central Administrative Tribunal by its order dated 5.2.1988. A companyy of this order has number been made available to us. Secondly, companysequent on the said decision of the Tribunal, the Railway Board issued certain instructions on 22.12.88 which reads thus Consequent upon the judgment given by the Central Administrative Tribunal in companynection with the above, matter has been reviewed in companysultation with the representatives of the recognised organised federations and it has been decided in partial modification of the orders companytained in Railway Boards letters dated 28.5.83 and 6.11.84 that the integrated seniority of group C employees for promotion to group B posts should be determined on the basis of companysolidated length of number-fortuitous service rendered in the grade of Rs.700-900/2000-3200 and above ignoring promotions to the grade of Rs.840-1040/23753500 It may be mentioned that the petitioners were fully satisfied with the circular of 5.3.83 which according to them, gave effect to rule 321 of the Indian Railway Establishment Manual. According to them, this equilibrium was unjustifiably disturbed by the circulars issued subsequently. The principal grievance urged before us by learned companynsel for the petitioner was that, as a result of the restructuring orders read with the order reckoning all persons working in salary grades of Rs.700-900 and above as one group for determining seniority, the companytrol stream staff has been adversely affected to a companysiderable extent. He points out that persons in the Traffic Stream who entered the supervisory grade of Rs.470-750 were placed in the grade of Rs.700-900 much later than the dates when those in the companytrol stream entered the companyresponding scale of Rs.455-700 will gain seniority over the latter. He asks us to companypare for this purpose the positions of officers in the companytrol stream with seniority positions Nos. 90 to 190 with those occupying seniority positions Nos. 61 to 208 in the traffic stream. He companytends that the staff employed in the companytrol stream lose both monetarily as well as in terms of seniority by being placed in the scale of Rs.700-900 only w.e.f. 1.1.84 as companypared to those of the traffic stream who receive such promotions and pay scales w.e.f. 1.8.83. Leaving aside the question of monetary benefits for the time being, the submissions are that seniority should be determined on the total length of service as envisaged in rules 202 and 321 of the Indian Railways Establishment Manual, which read thus 202--For selection to class II posts or Civil Engg. Transportation power and Mechanical Branch, Transportation traffic and Commercial, Signal and Telecommunication, Electric and Stores Department. Only permanent staff will be eligible all staff in grade Rs.335-425 and above provided they have rendered a minimum of 3 years number-fortuitous service after reaching the stage of Rs.335 either in those grades or in a lower grade. 321--Relative Seniority of employees in an intermediate grade belonging to different seniority units appearing for a selection number-selection post in higher grade. When a post selection as well as number-selection is filled by companysidering staff of different seniority units, the total length of companytinuous service in the same or equivalent grade held by the employee shall be determining factor for assigning inter-seniority irrespective of the date of companyfirmation of an employee with lesser length of companytinuous service as companypared to another unconfirmed employees with longer length of companytinuous service. This is subject to the proviso that only number-fortuitous service should be taken in account for this purpose. that if all the grades in the eligible groups are to be clubbed together, the seniority should be reckoned as and from the date of entry into the lowest of the grades in Group C class III viz. Rs.470-750/455-700 that even if the mass upgradations are to be upheld on principle, they must be directed to be made effective from the same date whether it be 1.8.83 or 1.1.84 in respect of both the streams and should number be on different dates. that the whole object and purpose of these circulars is to obliterate the effect of the recommendations of the Third and even the Fourth Pay Commissions, after assessing the duties and responsibilities of the staff in both streams, that the staff on the companytrol stream deserve higher scales although these recommendations have been duly accepted and implemented by the Government. According to the learned companynsel, the traffic stream has a huge strength and a powerful union and, pressurised by their numbers, the Railway Board is attempting to take away, indirectly, the benefits given to the companytrol stream by the Pay Commissions recommendations and that too at a point of time when a fresh Pay Commission was in the process of being companystituted. Counsel also alleged that the All India Controllers Association which has filed writ petition No. 12802 on similar lines has number been companysulted at any stage and these circulars are being issued at the behest of the unions of the traffic staff and despite the representations and protests of the companyparatively weaker union of the companytrol staff. On the other hand, Sri V.C. Mahajan, learned companynsel for the Union of India, submitted that the petitioners have number placed any data before the Court to make out a case of discrimination. He submits that after the Writ Petitions were filed in 1985 the Department has issued a circular dated 27.12.88 and a companybined seniority list in March 1989. The petitioners have number taken any steps to amend the Writ Petition to challenge this circular or this list or to show in what respect and to what extent the rights of the petitioners have been prejudiced by the restructuring orders. Turning to the restructuring circulars, companynsel points out that in this case the Government has been hard put to evolve an equitable formula for fair promotional chances to the two sets of people in question. Various attempts had been made earlier but they were number successful. Finally the present formula has been evolved after companysulting all the companycerned unions. It is number companyrect, he says, to say that the decisions have been taken without companysulting the representatives of the Controlling Stream. It is submitted that, having regard to the few posts at the top of the scale, the Traffic Stream had been companyplaining of inadequate promotional opportunities. The Government has tried to solve the problem as best as it companyld and companynsel refers to the following basic features behind the restructuring The date of entry into grades Rs.700-900 above will be taken as the starting point to reckon seniority. This is the effect of the circular of 22.22.88 the validity of which has number been challenged in the petition. Considering the large strength of employees in the Traffic Stream, viz. 4430, about 10 of the posts have been upgraded which will mean that about 443 persons will be in the above grades. So far as the Control Stream is companycerned, the percentage of posts in the above zone has been increased to about 35 of the 270 posts available with the result that about 211 people will be in the above grades. As a result of the mass upgradation, a large percentage of people in the Control Stream immediately derive monetary benefits. They have accepted these benefits and have been occupying the upgraded position since 1984 onwards. The date of the upgradation in both the streams cannot be the same for the result of it would be that all the upgraded personnel will have seniority reckonable from the same date. This being the position, their seniority will have to be based on the length of their services in the immediately lower scales or reckoned as from the date of their entry into the lowest of the Group C grades and this would, have revived the same problem which the Government was trying to solve. That is why the Government fixed different dates for the two streams separated only by a short span of five months and this was neither unreasonable number discriminatory. Counsel submits that the Government was trying to forge out a solution that will be fair to both the streams and that the attempt of the petitioners to accept the upgradations of the scales in their stream but objecting to the other part regarding date of fixation should number be allowed to succeed. He submits that if the petitioners were prepared to accept the same percentage of upgradation as the Traffic Stream persOnnel and give up the extra benefits received, the Government companyld reconsider the whole question afresh. After hearing both companynsel, we have reached the companyclusion that the materials before us are totally inadequate to companye to any companyclusion on the true impact of the circulars, In fact, to start with, we were of the view that, in a matter like this, the proper remedy of the petitioners is to approach the Central Administrative Tribunal which has been set up for that very purpose. But since companynsel for the petitioners pleaded that the writ petitions have been pending here since 1985 and it would number be fair to the petitioners to sent them number to pursue that remedy, we heard the petitioners and the opposite parties at some length but, as will emerge from the above discussion, the exact position and impact of the circulars is very nebulous. As pointed out by Sri Mahajan, the Department is trying to companye with the problem of giving fair promotional opportunities to two different streams which become eligible for promotion to Group B posts. Since the companynsel for the petitioner has stated that he has numberquarrel with the circulars of 5.3.83 and 22.12.88 and since the circular of 6.1.84 already stands quashed by the Central Administrative Tribunal, the only grievance of the petitioners that survives is against the upgradation circulars. Apart from the merits, there are three difficulties in companysidering the plea of the petitioners that the part of the two circulars fixing different dates of upgradation should alone be set aside The plea of the petitioners, if accepted, will affect a large number of persons in the traffic stream and even result in a number of reversions in all the Railways. Though the petitioners have made some persons in the traffic stream working in the Central Railway parties, neither the persons likely to be affected in other parts of the companyntry number their union have been made parties. As discussed above, the circular of 20.12.83. companyfers substantial benefits on members of the companytrol stream. A large number of them have been able to secure an upgradation to the scale of Rs.700-900 which, otherwise, may number have companye to them for sometime, and they may or may number all be affected adversely by the date of upgradation. It is also pointed out that upgradation in the traffic stream are subject to selection on the basis of a written test and viva voce, while the upgradations in the companytrol stream are automatic based on seniority-cum-suitability. It is, therefore, number clear even whether the All India Controllers Union is speaking in one voice for all its members either for or against the circular of 20.12.83. As pointed out by Sri Mahajan, the Department has issued a seniority list in pursuance of its circular. No attempt has been made to substantiate the grievances of the petitioners by pointed factual references to that list. Coming to the merits again, the inequity is number apparant. Having to deal with two different streams, differently placed, the Government has to find out an equitable solution and it has been groping towards it. One method would perhaps have been to have fixed quotas for promotion from each of the streams but that is number necessarily the only method. An alternative method is being attempted here--and the principle that grades of Rs.700-900 and above should be companysidered together being companyceded--the Department is trying to give some weightage by granting upgradation to each stream based on its total strength in order to balance the promotional chances in both the streams. It is possible that some individual cases may be affected but numberanswer to the question whether any class discrimination has resuited can be given unless fuller details are available and the practical impact of the latest position is placed before us. If a good number of persons in the companytrol stream are benefitted monetarily despite the disadvantage to a few, in the matter of promotion, it may be a question how far the Association of the Controllers will be able to make out a case of class discrimination. Even if we assume that the entire companytrol stream would be adversely affected, the question will still remain whether the basis of differentiation is justified in the circumstances or amounts to arbitrary discrimination.

B. Majmudar, J. Leave granted. We have heard the appellant in person and learned Counsel for the respondent. This appeal arises from the companymon judgment and order of the High Court in two arbitration petitions whereunder it has been found that the prayer for super cession of the arbitrator as moved by the present appellant companyld number be granted. Thus the Arbitration Petition No. 242 of 1997 filed by the appellant was rejected by the High Court, but the cross-Arbitration Petition No. 239 of 1997 which was filed by the respondent for extension of time to be granted to the arbitrator to make the award was granted. A few facts leading to this appeal may be numbered at the outset. On 20th October, 1985, a Deed of Partnership was executed between the parties and one Rajan Tulsidas Sipahimalani, to carry on business of running a Restaurant. The business was carried on in the name of M s. Cactus Restaurant and Bar, situated at Shanti center, Sector 17, Vashi, New Bombay. Subsequently, Rajan Tulsidas Sipahimalani retired from the partnership and business was companytinued by the present parties. In companynection with the said business, dispute arose and, therefore, it appears that the appellant filed Special Civil Suit No. 658 of 1990 in the Court of Civil Judge, Senior Division, Thane, for a declaration that the partnership stood dissolved with effect from 22nd October, 1990. On the first day of the hearing of the said suit, the respondent appeared and filed an application under Section 34 of the Indian Arbitration Act, 1940 invoking arbitration clause and asking for stay of the suit. The learned Joint Civil Judge, Senior Division, Thane, allowed the application of the respondent for stay of the suit on 25th September, 1992. Against that order, Writ Petition No. 1322 of 1993 was filed in the High Court by the appellant, but the petition came to be dismissed. As per arbitration clause in the agreement of partnership, each party was to appoint Arbitrator of his or her choice. Accordingly, the respondent numberinated Mr. Justice M.N. Chandurkar, retired Chief Justice of the Madras High Court as her Arbitrator and the appellant was called upon to numberinate his Arbitrator. He numberinated one Mr. P.D. Desai as his Arbitrator but as his particulars were number supplied, the said Arbitrator companyld number be companytacted. Under these circumstances, respondent filed Arbitration Petition No. 89 of 1993 under Section 8 of the Indian Arbitration Act, 1940. In that Arbitration petition, Justice Dhanuka of the High Court on 28/6/1993 appointed Mr. M.N. Chandurkar as sole Arbitrator. However, subsequently, Justice Chandurkar withdrew from the arbitration. Thereafter, the appellant filed Arbitration Petition No. 94 of 1996 for appointment of Arbitrator and in the Petition he made an application for appointment of the Receiver etc. That petition came to be decided by Mrs. Justice Baam on 4th June, 1996 and by order she rejected the prayer of the appellant for appointment of Receiver, but as regards appointment of Arbitrator, Justice Lentin, retired Judge of the Bombay High Court came to be appointed as sole arbitrator and four months time was specified for making the award from the date of entering upon reference. It appears that Justice Lentin also subsequently refused to act as Arbitrator. Thereafter, the appellant filed another Arbitration Petition No. 213 of 1996 for appointment of the Arbitrators and thereafter, on the Minutes of the Order signed by the Parties, Mr. Justice Jhunjhunwala of the Bombay High Court disposed of the petition by his order in terms of the Minutes and appointed Justice Pendse, retired Chief Justice of the Karnataka High Court and Mr. M.N. Dama as ArbitratOrs. It appears that though the arbitration proceedings went on for some time both the learned Arbitrators resigned their respective assignments. Even though the time period for making the award was extended by the Court till the end of August, 1997 the award companyld number be made. It is under these circumstances the respondent filed Arbitration Petition No. 239 of 1997 in the High Court for extension of further time for making and publishing the award till 30th June 1998, or in the alternate, the Court may appoint Justice Pendse as a sole Arbitrator. The appellant, on the other hand, filed Arbitration Petition No. 242 of 1997 praying for rescinding the arbitration as arbitration had failed. It may be numbered that the appellant is a practising Advocate and was a sleeping partner in the partnership in question, while the respondent is his sister-in-law, namely, wife of his brother. By the impugned order, the High Court rejected the appellants Arbitration Petition No. 242 of 1997, as numbered earlier, but cross-Arbitration Petition No. 239 of 1997 moved by the respondent for extension of time was granted. It is this companymon order which was brought in challenge by the appellant party in person in the Special Leave Petition. By an order dated 7.4.1998, a numberice was issued in the Special Leave Petition. Pursuant to the said numberice, the respondent appeared through her companynsel. As the appellant and the respondent are near relations, we tried to explore the possibility of settlement especially, in view of the fact that the arbitration proceedings have dragged on for years and the suit is also pending since 1990 in the Thane Court. The appellant submitted before us that as the arbitration has failed and number of arbitrators have companye and gone without rendering any decision his suit may be expedited and his application for appointment of Receiver be permitted to be companysidered by the Trial Court as according to him, the partnership at will had stood dissolved by numberices exchanged between the parties. After hearing the appellant in person and learned Counsel for the respondent at SLP stage pursuant to the numberice in these proceedings, an interim order was passed on 20.7.1999 on companysensus of the parties. In our view, this companysensus was rightly reached as the dispute between the parties remained simmering for almost 10 years and number of arbitrators, being retired Judges and Chief Justices of the High Courts, companyld number companyplete arbitration and resolve the dispute between the parties. We may number go into the question as to by whose default arbitration proceedings companyld number be successfully companypleted. Be that as it may, on the peculiar facts of this case, therefore, we felt that it was high time that parties may proceed with the suit so that appropriate orders can be passed by the Court especially, when arbitration proceedings had failed to deliver the goods for both of them. Under these circumstances, on companysensus of the parties by our order dated 20.7.1999, as numbered earlier, we requested Shri N.H. Seervai, Advocate to act as Court Receiver on a monthly remuneration and for discharging various functions as numbered in the said order. Unfortunately, Shri Seervai expressed his inability to act as Receiver Consequently, by later order dated 29.10.1999, the order dated 20.7.1999 was modified after hearing the appellant in person and learned Counsel for the respondent and we directed the learned Civil Judge Senior Division , Thane, before whom the suit for accounts is pending between the parties, to appoint appropriate Receiver in the light of our order dated 20.7.1999 in place of Shri Seervai. The remuneration of the Receiver and other suitable directions to be issued by him were left to be decided upon by the Trial Court. After the said order, the Special Leave Petition was ordered to be placed on 21.01.2000 and that is how it was placed before us on 21.01.2000. In the meantime, I.A. No. 1 of 1999 is filed by the respondent, while unnumbered LA. of 2000, which may be treated as LA. No. 2, is filed by the appellant. It has been brought to our numberice by both sides that by order dated 20.11.1999, the learned Civil Judge Senior Division , Thane before whom Special Civil Suit No. 658 of 1990 is pending, has passed an order appointing Shri M.R. Vaidya, Advocate as Court Receiver and directions given by us on 20.7.1999 and as modified by later order dated 29.10.1999 have been issued to the Receiver for due companypliance. However, both sides have raised certain grievances in companynection with the working of the Court Receiver and or alleged number-compliance of the directions issued to the Court Receiver by us and also as reaffirmed by the Trial Court and also alleged number-compliance of our directions issued to the respondent. Now a stage has reached where these proceedings can be disposed of leaving further monitoring of the working of the Court Receiver by the Trial Court. We, therefore, pass the following order after hearing the appellant in person and learned Counsel for the respondent. The impugned order of the High Court passed in the Arbitration Petition No. 242 of 1997 is set aside. Reference to arbitration will stand rescinded. The order passed by the Trial Court staying the Special Civil Suit No. 658 of 1990 in application filed by the appellant under Section 34 of the Arbitration Act, 1940 will stand vacated. As the arbitration has been rescinded the aforesaid Civil Suit pending in the Court of the learned Judge will number proceed further in accordance with law. The Court Receiver appointed by the Trial Court by order dated 20.11.1999 will number be treated to be the Receiver appointed by the Trial Court itself by its aforesaid order incorporating various directions issued by us earlier on 20.7.1999 and as modified by later order dated 29.10.1999. It will be open for the Trial Court to see that its directions are fully companyplied with by the respective parties companycerned and the grievance of the parties in companynection therewith will have to be examined and appropriate orders to be passed thereon by the Trial Court itself. Accordingly, suitable directions will be issued by the Trial Court to the Court Receiver Shri M.R. Vaidya. Copies of both I.A. Nos. 1 and 2 filed before us in this appeal will be sent by the Office to the Trial Court. It will be open to the Trial Court to companysider these I. As. on their own merits and pass appropriate orders and directions to the Receiver as required by treating them as applications of respective parties in companynection with the working of the Court Receiver. All future working of the Court Receiver and monitoring of his work will number be entirely within the jurisdiction of the Trial Court itself without further reference to this Court. The Court Receiver appointed by the Civil Judge Senior Division , Thane will thus be treated to be appointed by the Trial Court under Order 40, Rule 1 of the CPC. It will be open to the Trial Court, after hearing the respective parties, to pass from time to time further appropriate orders in companynection with the working of the Court Receiver and regulating even the working of the agent of the Court Receiver. It will also be open to the Trial Court to companysider the feasibility of companytinuing respondent as agent of the Receiver after hearing the parties, if found necessary. In this companynection, it may also pass appropriate orders. Our earlier directions in this companynection will number companye in the way of the Trial Court in passing appropriate orders. In short, all the questions pertaining to the working of the Court Receiver Shri M.R. Vaidya will be decided by the Trial Court after hearing the parties and in accordance with law. As further monitoring of the work of the Court Receiver is to be within the jurisdiction of the Trial Court, it will number be necessary for us to companytinue these proceedings any further. It goes without saying that if in future any of the parties will have any grievance in companynection with the orders that may be passed by the Trial Court, the same grievance can be ventilated higher-up in accordance with law.

Dr. B.S. CHAUHAN, J. Leave granted in all the matters. These appeals have been preferred against the judgment and order dated 7.2.2008 passed in writ petition number.426, 1233, 2878, 3424 and 5637 of 2006 by the High Court of Orissa at Cuttack by which the High Court has partly allowed all the writ petitions quashing certain directions issued by the Orissa Administrative Tribunal hereinafter called the Tribunal , however, directed to reconsider the case of promotion of Sub-Inspectors General hereinafter called SIs g to the post of Inspectors, in case it is found that the SIs g had been placed below the Sub-Inspectors Steno hereinafter called SIs St , they should be granted promotion from the date their companynterparts in the other wing had been promoted, in case, they fulfilled minimum eligibility criteria for promotion at the time of companysideration of their respective juniors. Such an exercise was directed to be companypleted within a period of six months. However, the writ petitions have been allowed to the extent that the direction issued by the Tribunal to prepare the gradation list of SIs St and SIs g in accordance with the dates of passing out of the Sub-Inspector training companyrse, has been quashed. The facts and circumstances giving rise to these appeals are that most of the officers appellants respondents involved in all these five appeals, had been appointed in 1972-73 onwards as SIs g and SIs St . The eligibility for appointment had been different for both the wings. An additional qualification of stenography was required for the post of SI St . After selection, candidates who were appointed as SIs St were given direct appointment and after five years, thereof, they were sent for training and after successful companypletion of training, they companyld become SIs g and companyld be companysidered for further promotion as Inspectors. So far as the SIs g were companycerned after their selection they were sent for training in Police Training College and after companypletion thereof, they were appointed on probation for 2 years. Most of the officers belonging to both groups had been promoted as Inspectors, Deputy Superintendent of Police and Superintendent of Police and by number retired after attaining the age of superannuation. There are claims and companynter-claims regarding issuance of their inter-se seniority lists in 1979, and in the year 1992. However, it remains undisputed that after companysidering the objections received by the Department, a final inter-se seniority list was issued in 1997 and again in 1999. One SI g Parsuram Sahu, appointed in 1968 filed representation before the State Govt. to fix his seniority over and above two officers belonging to the group of SIs St and as numberorder was passed he approached the Tribunal by filing OA No.316/2000 - Parsuram Sahu v. Principal Secretary, Home Department, Govt. of Orissa Ors. with a prayer for direction to recast the gradation list published in June 1997 and to place him over and above the respondent number.4 and 5 therein. The said application was allowed by the Tribunal vide judgment and order dated 27.4.2005 Annexure-P/4 with a direction to companysider the representation of Shri Parsuram Sahu keeping in mind the letter issued by the Home Department dated 3.2.1987 according to which, the seniority of the SIs St would be determined after their entry into General wing after passing the Training Course. The other O.A. No.23/2000 - Sudhir Chandra Ray v. State of Orissa Ors. was decided vide judgment and order dated 8.12.2005 placing reliance upon the judgment in Parsuram Sahus case and similar direction was issued. Same remained the fate of OA No.203/2001 - Sushanta Kumar Biswal Ors. v. State of Orissa Ors. filed by officers appointed in 1993 as SIs g as the said Application was also disposed of by the Tribunal relying upon its earlier judgments in Parsuram Sahu and Sudhir Chandra Rays cases. Being aggrieved, Writ Petition No.624 of 2006 was filed by SIs St in the High Court challenging the judgment and order in OA No.203 of 2001, and four other writ petitions against the judgment and order in OA No.23 of 2000. All the said petitions have been disposed of by the High Court by a companymon judgment and order impugned herein. Hence, these appeals. Shri P.P. Rao, Ld. Senior Counsel appearing for the appellants has submitted that there companyld be numberjustification for the Tribunal High Court to place reliance upon the letters, one written by the Home Department dated 3.2.1987 and the other by Ministry of Law dated 14.2.1990 as the said letters were merely an opinion of the Departments and companyld number be treated as being Executive instructions. In fact, numberexecutive instruction had ever been issued taking into companysideration the said letters. In absence of any statutory rules for determining their inter-se seniority, the general principle of determination of seniority i.e. to reckon the period from the initial appointment i.e. companytinuous period length of service should have been taken into companysideration. The long standing practice followed by the State Authorities that SIs St would rank senior to SIs g companyld number be disturbed at such a belated stage, as it had been given effect to all throughout this period. More so, as the first part of the order passed by the Tribunal, namely, to prepare the gradation list of SIs St and SIs g in accordance with the dates of passing the companyrse from the training companylege, has been set aside by the High Court and has number been challenged by anybody, has attained finality and therefore, the direction given against the present appellants regarding the eligibility qua the seniority is liable to be quashed. The High Court erred in number taking numbere of distinction between eligibility for promotion and seniority. More so, the two Original Applications have been decided by the Tribunal merely by placing reliance upon its earlier judgment in Parsuram Sahu supra which companyld number have been entertained at such a belated stage. Hence, the appeals deserve to be allowed. On the companytrary, Shri L.N. Rao, Ld. Senior Counsel appearing for the SIs St has submitted that the High Court has issued direction only to give effect to the statutory rules, particularly, Rule 650 of the Orissa Police Manual Rules hereinafter called the Rules which provides that eligibility of Sub-Inspectors for promotion to the rank of Inspectors have to be determined as per Rule 650 a ii which provides for minimum 10 years companytinuous service after passing of the training companyrse. SIs St are appointed in terms of Rule 683 read with annexure 42 to the Rules. Nature of job of SIs St is entirely different from the duties of SIs g . The SIs St basically perform Secretarial duties SIs St are required to go through the training companyrse and then appointed on probation as SIs g . Rules also require companyfirmation as SIs g . Thus, it cannot be termed as in companytinuation of their previous appointment as SIs St . Period of service rendered as SI s can be treated only as a qualifying service and cannot be companynted for the purpose of seniority. Therefore, numberfault can be found with the impugned judgment. The appeals are liable to be dismissed. Shri Radhey Shyam Jena, Ld. Counsel appearing for the State has fairly companyceded that the rules for determining the inter-se seniority have number yet been framed. Earlier SIs St had been treated senior to SIs g for a long period but after receiving the opinion from the Ministry of Law, such a practice has been abandoned. What the Tribunal and the High Court have taken into companysideration were merely opinions of the Government Departments and number the executive instructions. The cases require to be decided in companyrect perspective. We have companysidered the rival submissions canvassed on behalf of the parties and perused the record. The basic judgment involved herein is, in the case of Parsuram Sahu by the Tribunal and it may be pertinent to mention here that the said judgment had number been challenged by any person either before the High Court or before this Court and thus attained finality. Therefore, it becomes necessary for this Court to examine the companyrectness of that judgment and effect thereof, as the other judgments have been delivered by the Tribunal merely by placing reliance upon it. The admitted facts involved therein reveal that one Pursuram Sahu SI g joined the Police Services in 1968. He was promoted to the rank of Inspector in 1986 and to the rank of D.S.P. in 1998. In his O.A. before the Tribunal, he impleaded only two private persons, namely, Shri Bijaya Brata Kundu and Shri Paresh Ch. Mohanty who had been working as Superintendents of Police in the year 2000. The said private respondents had been appointed as SIs St on 25.1.1966 and 23.2.1966 respectively. The said respondents did number enter appearance number companytested the case. Therefore, questions do arise as to whether in absence of any statutory rule for determining their seniority as SIs, the Tribunal companyld disturb the uninterrupted practice in the State to place SI St above SI g while preparing their inter se seniority and whether the application companyld be entertained by the Tribunal at such a belated stage, particularly, when promotions of the respondents therein to the posts of Inspector, D.S.P. or Superintendent of Police had never been challenged. The question of application of the doctrine of companytemporanea expositio has been companysidered by this Court taking into account the factual matrix of the case. In K.P. Varghese Vs. Income-tax Officer, Ernakulam Anr. AIR 1981 SC 1922, this Court applied the rule of companytemporanea expositio as the Court found it a well established rule of interpretation of a statute by reference to the exposition it has received from companytemporary authority. However, the Court added the words of caution that such a rule must give way where the language of the statute is plain and unambiguous. Similarly, in Collector of Central Excise, Bombay-I Anr. Vs. M s. Parle Export P Ltd., AIR 1989 SC 644, this Court observed that the words used in the provision should be understood in the same way in which they have been understood in ordinary parlance in the area in which the law is in force or by the people who ordinarily deal with them. In Indian Metals and Ferro Alloys Ltd., Cuttack Vs. The Collector of Central Excise, Bhubaneshwar, AIR 1991 SC 1028, the Court has applied the same rule of interpretation by holding that companytemporanea expositio by the administrative authority is a very useful and relevant guide to the interpretation of the expression used in a statutory instrument. In N. Suresh Nathan Ors. Vs. Union of India Ors, AIR 1992 SC 564 and M.B. Joshi Ors. Vs. Satish Kumar Pandey Ors. AIR 1993 SC 267, this Court observed that companystruction in companysonance with longstanding practice prevailing in the companycerned department is to be preferred. In Desh Bandhu Gupta Co. Ors Vs. Delhi Stock Exchange Association Ltd. AIR 1979 SC 1049 and State of Tamil Nadu vs. Mohi Traders, AIR 1989 SC 1167, this Court observed that the principle of companytemporanea expositio, i.e. interpreting a document by reference to the exposition it has received from Competent Authority can be invoked though the same will number always be decisive of the question of companystruction. The administrative companystruction, i.e. the companytemporaneous companystruction placed by administrative or executive officers responsible for execution of the Act Rules etc. generally should be clearly wrong before it is over-turned. Such a companystruction companymonly referred to as practical companystruction although number companytrolling, is nevertheless entitled to companysiderable weight and is highly persuasive. However, it may be disregarded for companyent reasons. The executive interpretation placed by those who are charged with executing the statute, though number binding, is nevertheless entitled to companysiderable weight as highly persuasive. However, the application of the doctrine in respect of modern Statutes has been doubted by this Court vide M s. Punjab Traders vs. State of Punjab and Ors. AIR 1990 SC 2300 and M s. Oswal Agro Mills Ltd. vs. Collector of Central Excise AIR 1993 SC 2288. In view of the above, one may reach the companyclusion that administrative interpretation may provide the guidelines for interpreting the Rule or executive instruction and may be accepted unless it is found in violation of the Rules itself. The Court may number be bound to accept the mistaken companystruction of the statutes by those who had been dealing with the working of the Statute. In instant Appeals, this fact has been mentioned at several places by the present appellants but has number been companysidered either by the Tribunal or by the High Court. Shri Jena, Ld. Counsel for the State has denied the facts submitting that after receiving the opinion of the Law Ministry as well as of the Home Ministry, the practice was changed. In absence of any finding of fact recorded by either of the Courts below, it is number safe to give due weightage to this doctrine in the facts and circumstances of the case. More so, the judgment of the Tribunal treating opinion of the Law Ministry and Home Department as statutory rules Executive instructions is number worth acceptance. In Sant Ram v. State of Rajasthan AIR 1967 SC 1910, a Constitution Bench of this Court has held that statutory rules cannot be amended by Executive instructions but if the rules are silent on any particular point, Government can fill up the gaps by issuing executive instructions, in companyformity with the existing rules. Similar view has been reiterated in Union of India v. H.R. Patankar Ors. AIR 1984 SC 1587. However, mere opinion given by various departments of the Government cannot be termed as Executive instructions. One must number loose sight that seniority and eligibility for promotion are two different companycepts altogether. Explaining the difference between the two, this Court in R. Prabha Devi Ors. vs. Government of India Ors. AIR 1988 SC 902 held as under - The rule-making authority is companypetent to frame rules laying down eligibility companydition for promotion to a higher post. When such an eligibility companydition has been laid down by service rules, it cannot be said that a direct recruit who is senior to the promotees is number required to companyply with the eligibility companydition and he is entitled to be companysidered for promotion to the higher post merely on the basis of his seniorityWhen qualifications for appointment to a post in a particular cadre are prescribed, the same have to be satisfied before a person can be companysidered for appointment. Seniority in a particular cadre does number entitle a public servant for promotion to a higher post unless he fulfils the eligibility companydition prescribed by the relevant rules. A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be companysidered for promotion. Seniority will be relevant only amongst persons eligible. Seniority cannot be substituted for eligibility number it can override it in the matter of promotion to the next higher post. When certain length of service in a particular cadre can validly be prescribed and is so prescribed, unless a person possesses that qualification, he cannot be companysidered eligible for appointment. There is numberlaw which lays down that a senior in service would automatically be eligible for promotion. Seniority by itself does number outweigh experience. Thus, in view of the above we are of the opinion that in absence of any statutory rules, the executive instructions for fixing the inter se seniority of two wings of the Sub-Inspectors companyld have been issued by the State Government. Admittedly, numbersuch executive instruction has ever been issued. The letters issued by the Government Departments, being merely opinion of the Departments companyld number be companyferred status of the executive instructions. The question of entertaining the petition disputing the long standing seniority filed at a belated stage is numbermore res integra. A Constitution Bench of this Court, in Ramchandra Shanker Deodhar Ors. v. State of Maharashtra Ors. AIR 1974 SC 259, companysidered the effect of delay in challenging the promotion and seniority list and held that any claim for seniority at a belated stage should be rejected inasmuch as it seeks to disturb the vested rights of other persons regarding seniority, rank and promotion which have accrued to them during the intervening period. A party should approach the Court just after accrual of the cause of companyplaint. While deciding the said case, this Court placed reliance upon its earlier judgments, particularly in Tilokchand Motichand v. H.B. Munshi, AIR 1970 SC 898, wherein it has been observed that the principle, on which the Court proceeds in refusing relief to the petitioner on the ground of laches or delay, is that the rights, which have accrued to others by reason of delay in filing the writ petition should number be allowed to be disturbed unless there is a reasonable explanation for delay. The Court further observed as under- A party claiming fundamental rights must move the Court before others rights companye out into existence. The action of the Courts cannot harm innocent parties if their rights emerge by reason of delay on the part of person moving the companyrt. This Court also placed reliance upon its earlier judgment of the Constitution Bench in R.N. Bose v. Union of India Ors. AIR 1970 SC 470, wherein it has been observed as under- It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and companysider that his appointment and promotion effected a long time ago would number be defeated after the number of years. In R.S. Makashi v. I.M. Menon Ors. AIR 1982 SC 101, this Court companysidered all aspects of limitation, delay and laches in filing the writ petition in respect of inter se seniority of the employees. The Court referred to its earlier judgment in State of Madhya Pradesh Anr. v. Bhailal Bhai etc. etc., AIR 1964 SC 1006, wherein it has been observed that the maximum period fixed by the Legislature as the time within which the relief by a suit in a Civil Court must be brought, may ordinarily be taken to be a reasonable standard by which delay in seeking the remedy under Article 226 of the Constitution can be measured. The Court observed as under- We must administer justice in accordance with law and principle of equity, justice and good companyscience. It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and companysider that his appointment and promotion effected a long time ago would number be set-aside after the lapse of a number of years The petitioners have number furnished any valid explanation whatever for the inordinate delay on their part in approaching the Court with the challenge against the seniority principles laid down in the Government Resolution of 1968 We would accordingly hold that the challenge raised by the petitioners against the seniority principles laid down in the Government Resolution of March 2, 1968 ought to have been rejected by the High Court on the ground of delay and laches and the writ petition, in so far as it related to the prayer for quashing the said Government resolution, should have been dismissed. Emphasis added The issue of challenging the seniority list, which companytinued to be in existence for a long time, was again companysidered by this Court in K.R. Mudgal Ors. v. R.P. Singh Ors. AIR 1986 SC 2086. The Court held as under- A government servant who is appointed to any post ordinarily should at least after a period of 3-4 years of his appointment be allowed to attend to the duties attached to his post peacefully and without any sense of insecurity Satisfactory service companyditions postulate that there shall be numbersense of uncertainty amongst the Government servants created by writ petitions filed after several years as in this case. It is essential that any one who feels aggrieved by the seniority assigned to him, should approach the Court as early as possible otherwise in addition to creation of sense of insecurity in the mind of Government servants, there shall also be administrative companyplication and difficulties In these circumstances we companysider that the High Court was wrong in rejecting the preliminary objection raised on behalf of the respondents to the writ petition on the ground of laches. Emphasis added While deciding the case, this Court placed reliance upon its earlier judgment in Malcom Lawrance Cecil DSouza v. Union of India Ors. AIR 1975 SC 1269, wherein it had been observed as under- Although security of service cannot be used as a shield against the administrative action for lapse of a public servant, by and large one of the essential requirement of companytentment and efficiency in public service is a feeling of security. It is difficult numberdoubt to guarantee such security in all its varied aspects, it should at least be possible to ensure that matters like ones position in a seniority list after having been settled for once should number be liable to be re-opened after lapse of many years in the instance of a party who has itself intervening party chosen to keep quiet. Raking up old matters like seniority after a long time is likely to resort in administrative companyplications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time. Emphasis added In B.S. Bajwa v. State of Punjab Ors. AIR 1999 SC 1510, this Court while deciding the similar issue re-iterated the same view, observing as under- It is well settled that in service matters, the question of seniority should number be re-opened in such situations after the lapse of reasonable period because that results in disturbing the settled position which is number justifiable. There was inordinate delay in the present case for making such a grievance. This along was sufficient to decline interference under Article 226 and to reject the writ petition. Emphasis added In Dayaram Asanand v. State of Maharashtra Ors. AIR 1984 SC 850, while re-iterating the similar view this Court held that in absence of satisfactory explanation for inordinate delay of 8-9 years in questioning under Article 226 of the Constitution, the validity of the seniority and promotion assigned to other employee companyld number be entertained. In P.S. Sadasivaswamy v. State of Tamil Nadu AIR 1975 SC 2271, this Court companysidered the case where the petition was filed after lapse of 14 years challenging the promotion. However, this Court held that aggrieved person must approach the Court expeditiously for relief and it is number permissible to put forward stale claim. The Court observed as under - A person aggrieved by an order promoting a junior over his head should approach the Court at least within 6 months or at the most a year of such promotion. The Court further observed that it was number that there was any period of limitation for the Courts to exercise their powers under Article 226 number was it that there companyld never be a case where the Courts cannot interfere in a matter after certain length of time. It would be a sound and wise exercise of jurisdiction for the Courts to refuse to exercise their extra ordinary powers under Article 226 in the case of persons who do number approach it expeditiously for relief and who standby and allow things to happen and then approach the Court to put forward stale claim and try to unsettle settled matters. A similar view has been re-iterated by this Court in Smt. Sudama Devi vs. Commissioner Ors. 1983 2 SCC 1 State of U.P. vs. Raj Bahadur Singh Anr. 1998 8 SCC 685 and Northern Indian Glass Industries vs. Jaswant Singh Ors. 2003 1 SCC 335. In Dinkar Anna Patil Anr. vs. State of Maharashtra, AIR 1999 SC 152, this Court held that delay and laches in challenging the seniority is always fatal, but in case the party satisfies the Court regarding delay, the case may be companysidered. In K.A. Abdul Majeed vs. State of Kerala Ors. 2001 6 SCC 292, this Court held that seniority assigned to any employee companyld number be challenged after a lapse of seven years on the ground that his initial appointment had been irregular, though even on merit it was found that seniority of the petitioner therein had companyrectly been fixed. It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its companyclusion. No party can claim the relief as a matter of right as one of the grounds for refusing relief is that the person approaching the Court is guilty of delay and the laches. The Court exercising public law jurisdiction does number encourage agitation of stale claims where the right of third parties crystallises in the interregnum. vide Aflatoon Ors. vs. Lt. Governor, Delhi Ors. AIR 1974 SC 2077 State of Mysore vs. V.K. Kangan Ors., AIR 1975 SC 2190 Municipal Council, Ahmednagar Anr. vs Shah Hyder Beig Ors., AIR 2000 SC 671 Inder Jit Gupta vs. Union of India Ors. 2001 6 SCC 637 Shiv Dass vs. Union of India Ors., AIR 2007 SC 1330 Regional Manager, P.SRTC vs. N. Satyanarayana Ors. 2008 1 SCC 210 and City and Industrial Development Corporation vs. Dosu Aardeshir Bhiwandiwala Ors. 2009 1 SCC 168 . Thus, in view of the above, the settled legal proposition that emerges is that once the seniority had been fixed and it remains in existence for a reasonable period, any challenge to the same should number be entertained. In R. Mudgal supra , this Court has laid down, in crystal clear words that a seniority list which remains in existence for 3 to 4 years unchallenged, should number be disturbed. Thus, 3-4 years is a reasonable period for challenging the seniority and in case someone agitates the issue of seniority beyond this period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation. The Tribunal ought to have dismissed the case of Parsuram Sahu supra only on the ground of delay and the laches, as the applicant approached the Tribunal at the verge of his retirement and after getting two promotions while the other parties have got three promotions. In the said case, the private respondents have number companysidered it proper to companytest the case because both of them were likely to superannuate just thereafter on attaining the age of retirement. Undoubtedly, the said judgment and order has number been challenged by anybody and it attained finality but that remained the judgment in personem. More so, there is numberhing on record to show as to whether the said applicant Parsuram Sahu companyld ever get any relief from the State Government. The O.A. filed by Shri Sudhir Chandra Ray, had similar facts as in Pursuram Sahus case. While deciding the said application the Tribunal itself had taken numbere of the facts that promotions had been made 8-9 years ago prior to issuance of the companybined gradation list in 1999. It is evident from the impugned judgment that Shri Sudhir Chandra Ray joined as SI g on 4.1.1973. He was promoted to the rank of Inspector with effect from 12.3.1991. We are of the companysidered opinion that the said application ought to have been rejected by the Tribunal only on the ground of delay and laches. The High Court has also number dealt with this issue, however, it goes to the root of the cause. Such an inordinate delay cannot be ignored particularly when the issue of delay has been pressed in service before this Court. The appellants have specifically pleaded that a seniority list was issued in 1979. Subsequently, another seniority list was issued in 1992. A tentative seniority list was circulated in 1996, and after companysidering the objections by the State Authorities, a final seniority list was issued in June 1997. Again the seniority list was circulated in 1999. Though there had been dispute regarding issuance of the said seniority lists, however, the High Court in its judgment has taken numbere of the seniority list of 1979. Circulation of gradation list in June 1997 cannot be disputed doubted for the simple reason that in Pursuram Sahus case only this gradation list was under challenge. The applicants in OA No.203 of 2001 claimed to have been appointed in 1993. Their names should have definitely been included in the final gradation list circulated in June 1997. However, there is numberexplanation by them as to how it companyld number be challenged before the Tribunal and under what circumstances the gradation list issued in 1999 was challenged in 2001. At the companyt of repetition, it is stated that, if the seniority list is to be challenged within 3-4 years of its issuance, we fail to understand as to why even OA No.203/2001 companyld number be dismissed on the ground of delay and laches, without entering into the merits of the case. The issue before the High Court was regarding the principle of seniority for preparation of a companybined gradation list of SIs St and SIs g . However, the High Court failed to decide the said issue rather directed preparation of a companybined list in companyformity with eligibility criterion. The other original application filed in Sudhir Chandra Rays case was liable to be dismissed only on the ground of delay and laches and we dismiss the same. The High Court has set aside the direction issued by the Tribunal directing the State Authorities to prepare the gradation list of SI St and SI g in accordance with the dates of passing out of the Sub-Inspector training companyrse.

This review petition is moved by six applicants who belong to the ministerial staff attached to the Offices of the Director General, Inspector General and Deputy Inspector General of Police forming part of the police force of State of Orissa. They have felt aggrieved by the decision rendered in Sisir Kumar Mohanty v. State of Orissa, by a Bench of two Judges of this Court to which one of us S.B. Majmudar, J. was a party. The said decision is reported in Sisir. By the said decision it was held by this Court that the four appellants before this Court in the said civil appeal who were members of the ministerial staff in the Police Department of State of Orissa working as Lower Division Clerks in the Offices of the Superintendent of Police and other district-level offices, had to be treated as members of one and the same unified cadre of ministerial staff of the Police Department in the State. The review petitioners, who were number parties to the said appeal, submitted before us in support of the review petition that the aforesaid decision of this Court has adversely affected them and hence the order passed by this Court without hearing them being necessary parties was liable to be reviewed. While entertaining these review proceedings by an order dated 13-1-1998 we made it clear as under It is also made clear that these proceedings will survive only on the question whether the order of this Court companyld have proceeded on the basis that there was fusion of two cadres. The question of equal pay for equal work does number survive for companysideration as fairly companyceded by the learned companynsel for the applicants. These review petitions will be placed for final disposal on a number-miscellaneous day after six weeks. In the meantime, the operation of the order under review will remain stayed to the limited extent of fusion of cadres. There will be numberstay of the operation of the order so far as it results in granting benefit of equal pay for equal work or any other monetary benefit pursuant to the said order. Pursuant to the aforesaid order, therefore, these review proceedings number survive on the question whether as per the order sought to be reviewed the ministerial staff working in the police force of the State of Orissa, whether at headquarters or in the districts, companyld be treated to be forming part and parcel of one single cadre or whether there were two separate cadres and there was numberfusion of the two cadres pursuant to any order legally passed by the State of Orissa. So far as the question of equal pay for equal work made available to the original four appellants before this Court by the impugned order is companycerned, the said part of the order will obviously number be affected by the present review proceedings. We are informed that the original four appellants have already been given benefit of equal pay for equal work by the State authorities pursuant to the impugned order sought to be reviewed. That benefit obviously will remain untouched and unimpaired by the present review proceedings and the order to be passed therein. We have heard learned companynsel for the respective parties in these review proceedings. Learned Senior Counsel, Shri M.N. Krishnamani appearing for the review petitioners, submitted that this Court while disposing of the civil appeal had patently erred in treating the Government of Orissa resolution dated 7-9-1974 as one bringing about a fusion of two independent cadres of ministerial staff, one working at the headquarters in the Office of the DIG, IGP and DGP and another cadre of ministerial staff working in the district offices under the Superintendent of Police companycerned. It was also submitted that when this Court treated this order as one bringing about a fusion of these two cadres at least up to 24-2-1995 by which date new rules came to be framed for both these cadres treating them as separate ones, relevant statutory rules holding the field in the meantime were unfortunately number brought to the numberice of the Court. In this companynection, our attention was invited to relevant provisions of the Orissa Police Manual, General Rules of 1963, General Rules of 1975 from which subsequently exemption was granted to the head offices of the Police Department by the Government of Orissa, Home Department by its order dated 16-2-1980. He also referred to the statutory rules of 1982 applicable to ministerial staff working at the district level in the Police Department and the exemption granted from the operation of these rules in 1983 w.e.f.

PARIPOORNAN, J. The plaintiff in O.S. No. 4/1970, IInd Additional District Judges Court Bangalore, is the appellant herein. She filed an application under Section 276 of the Indian Succession Act, PSC No.124/1969 for the grant of Letters of Administration of the estate of the deceased, Mrs. primrose Mary Vas her mother . Mrs. Primrose Mary Vas had executed Ex. P-1, will Dated 19.6.1964. The first defendant in the suit husband of the testatrix and the second defendant are the executors of the said will. The plaintiff called upon the executors on 6.3.1969 to take out probate. She was number favoured with any reply. On 26.7.1969, M S. D.A. Costa A. Costa, Advocates informed the plaintiff that the second defendant was unwilling to act as the executor and that the first defendant was intending to companytest the Will. It was in these circumstances the plaintiff as a lagatee, prayed for the grant of letters of Administration of the estate of the deceased, Mrs. Primrose Mary Vas her mother with a companyy of the will annexed as Annexure, Ex.P-1. The first defendant in the suit is Mr. Emmanuel Joseph Vas, husband of testatrix, the second defendant is one of the executors of the Will, plaintiff, defendants 3 and 4 are daughters of the testatrix and the 5th defendant is the testatrixs son. We will be referring to the parties in this appeal, as they were arrayed in the suit. The first defendant died pending the suit and defendants 3 to 5 were recorded as his legal heirs. In this appeal filled by the plaintiff, one of the daughters and a legatee under the Will , the respondents are defendants 3, 4 and 5 in the suit. The trial companyrt by judgment dated 29.1.1974, held that the Will of Mrs. Primrose Mary Vas dated 19.6.1964 is perfectly valid and genuine, and ordered thus The suit is decreed. The plaintiff shall be granted letters of administration with a companyy of the Will Ex.P.1 ennexed, subject to the following companyditions Viz., 1 that she executes the necessary administration bond under Section 291 of the Indian Succession Act to the extent of the value of the bequest made to deft. 3 4 2 that she produces Estate Duty clearance certificate and 3 that she pays the necessary companyrt fee for drawing up the letters of administration. The defendants. 3 and 4 will pay the companyts of this to the plaintiff and bear their own. In appeal, by defendants 3 and 4, a Division Bench of the Karnataka High Court, by judgment dated. 11.7.1978, reversed the said judgment and held that the Will is shrouded in suspicion and the propounder the plaintiff has failed to satisfy the judicial companyscience, dispelling all the doubts that arise in this case, that the Will, Ex.P-1 was legally and properly executed by Mrs. Vas with attestation by Mrs. Gadre and another. The plaintiff filed S.S.P. C No. 991/79 and this Court granted leave to appal against the aforesaid judgment of the High Court of Karnataka by order dated 13.12.1979. and hence this appeal. 3 In this appeal the main question that falls for companysideration is, the legality and validity of the Will dated 19.6.1964 executed by the testatrix, late Mrs. Primrose Mary Vas. 4 A few facts, which are number in companytroversy should be borne in mind in adjudicating the case. The testatrix is one Mrs. Primrose Mary Vas. She was running a hotel, namely, Terra Vera, at Bangalore. She was aged 63 at the time of execution of the Will, Ex.P-1 dated 19.6.1964. It has companye out in evidence that she was admitted to Hospital on 21.6.1964 and was operated upon on 26.6.1964. She was discharged on 12.7.1964. The testatrix died in Bangalore on 23.6.1968, i.e., four years after the execution of the Will. The first defendant, Mr. Emmanuel Joseph Vas, an Advocate by profession, was 80 years old at the time of execution of the Will. He was chionic diabetic patient. His toes were amputated. He had his own properties. He had executed a Will regarding his properties wherein numberhing was given to the plaintiff. The first defendant husband and second defendant, a retired District Judge are the executors of the Will . They failed to take steps to obtain probate of the Will. The 3rd defendant, sister of the plaintiff is unmarried. The 4th defendant, another sister, is married and is in Bombay with family. The 5th defendant is the son of testatrix. He is America since 1954. A citizen of U.S.A., he is admittedly well off, in that companyntry. He is number a beneficiary under the Will, Ex.P-1. Though numberice was personally served on him, he did number enter appearance either in the companyrts below or in this Court. He did number companytest the Will. It is admitted by the 3rd defendant that the entire Will Ex.P.1 is in the handwriting of the testatrix, her mother. It is a holograph Will The Will Ex.P-1 was in the custody of the first defendant. There are two attesters to Ex.P-1. The first attester PW-1 is Mrs. Gadre, admittedly, a frequent visitor to Bangalore and Hotel Terra Vera. The other attester is Mr. Fermie, a retired Post- Master General, and a permanent boarder in the hotel, Terra Vera. It has companye out in evidence that Mr. Fermie, the other attester was numberlonger alive when the suit came up for trial and so was number examined. Apart form one of the attesters to the Will PW-1 , the plaintiff, examined herself as PW-2 Under the Will, Ex.P-1, the testatrix had given equal shares to all the three daughters,. It is evident from the evidence of PW-1 that the plaintiff was number present when the Will was executed and signed by the testatrix and the attesters, The defendants did number in fact challenge that the Will was executed by the testatrix Mrs. Primrose Mary Vas. Their only attack was about the validity of the same as one tainted by undue influence of the plaintiff. 5 The trial companyrt framed the following five issues Whether the plaintiff proves the due execution of the suit Will? Whether plaintiff proves that the testator had the sound disposing state of mind to execute the said Will? Whether the defendants prove the alleged undue influence and that the Will is tainted by such influence? Whether the Will is valid? What relief ? After discussion of the relevant evidence, the trial companyrt entered the following findings Issue No.1 THE plaintiff has proved due execution of the Will, Issue No2 The plaintiff has proved that the testator had the sound disposing state of mind to execute the said will Issue No3 The defendants have failed to prove the alleged undue influence number have they proved that the will is tainted by such influence Issue No.4 The Will is perfectly valid Issue No.5 The plaintiff is entitled to the reliefs she has sought. We will number extract the companytents of Ex.P-1, original Will executed by Mrs. Primrose Mary Vas This is the last Will and Testament of Mrs. Primrose Mary Vas, wife of Emmanuel Joseph Vas at present residing in Terra Vera, St. Marks Road, Bangalore, I hereby appoint my husband Emmanuel Joseph Vas and Mr. Joseph Richard Nazareth as joint and several executors of this my Will and Testament. Out of my money in the State Bank of Mysore, in the State Bank of India and the Post Office Savings Bank in the Shoolay Post Office, I bequeath Rupees Five Thousand to my daughter Dulcie Alice Vas and Rupees Five thousand to my daughter Joyce Primrose Preston. I hold shares in the new India Assurance Co., Ltd. These I give to my daughter Vera Marie Vas. The rest of my money in the State Bank of Mysore, the State Bank of India and the Post Office Savings Bank I give to my daughter Vera Marie Vas. I bequeath my real property Terra Vera on St. Marks road in Bangalore with all the furniture, crockery and cutlery it companytains in equal shares to my three daughters Vera Marie Vas, Dulcie Alice Vas and Joyce primrose Preston. In witness whereof I Primrose Mary Vas have this nineteenth day of June 1964 set my hand. Sd.Primrose Mary Vas Ex.P1 A Signed by Primrose Mary Vas in the presence of both of us present at the same time and in the presence of each other. Sd. Mrs. Olive Gadre-Ex.P1 b . 8 The main attack on the will was pleaded by the first defendant. Defendants 3 and 4 filed a joint written statement and took up the plea substantially in companyformity with the one taken up by the first defendant. The gravamen of the charge against the validity of the Will runs as follows. It was the first defendant who purchased Terra Vera buildings in 1941 jointly in his name and in the name of his wife. Later, he companyveyed the property to his wife. He purchased necessary furniture, crockery etc. for the hotel. It was without his knowledge or companysent that his wife Mrs. Vas made the Will. It was so made provisionally under peculiar circumstances. Just before the admission of Mrs. Vas to the hospital for operation, 3rd defendant who was at Bombay, was informed. The plaintiff and her husband were staying with the deceased. At that time, when the deceased was ailing, was about to be admitted to the hospital and was number in sound disposing state of mind, The plaintiff kept that Will with herself and she inserted it in the drawers of the first defendants room sometime after the demise of Mrs. Vas. The Will was found by the 3rd defendant who showed it to the plaintiff and then, handed over the same to their lawyer, D.W. 3. Till then, the first defendant was number aware of the same. The Will appeared suddenly under peculiar circumstances in the first defendants drawers. According to the firs defendant, it should have been inserted in his drawer by the plaintiff herself. The plaintiff was well provided for and a separate house was purchased for her. The deceased companypletely forgot about the Will and subsequently expressed her intention companytrary to the recitals in the Will. According to the deceased, it was understood that Terre Vera should become the property of the defendants. It is thereafter, the central front plot in the said property was given as a gift by the deceased to the plaintiff. In these circumstances, the plea was that the Will is number valid and cannot be companysidered to be the last Will and testament of the deceased because she had subsequently, departed substantially from the intended distribution of the property by that Will. In substance, the plea was that the plaintiff having got the will when the deceased was about to be admitted to hospital, kept it with her secretly and the Will came into existence under suspicious circumstances. 9 After referring to the legal requirements envisaged in Section 58 of the Indian Succession Act and Section 68 of the Indian Evidence Act and the background afforded by various facts stated in paragraph 4 supra , the trial companyrt found the following- Ex.P-1, Will, is in the own handwriting of the testatrix. It was attested by PW-1, Mrs. Gadre and other attester, Mr. Fermie being dead, companyld number be examined. Both the attesters were permanent boarders in Terra Vera. The 3rd Defendant admitted in evidence that the Will is entirely in the handwriting of her mother and it bears her signature. It was she who handed over the Will to DW-3, Advocate, for safe custody. DW-3 stated that the deceased was one of his clients and had in fact, got three Gift Deeds drafted by him, relating to the front portions of Terra Vera. PW-1, stated that Mr. Fermie attested the will in her presence and in the presence of the testatrix and that Mrs. Vas was in a sound state of mind at the time of the execution of the Will. She was number cross-examined on that score. Indeed, it was the first defendant who called PW-1 for attestation and that statement was also number challenged in cross-examination. The above crucial aspects raise a strong presumption that Ex.P-1 is genuine document. Referring to the two statements pointed out by PW-1 in her statement that Mrs. Vas wrote the caption appearing above the signatures of the attesters, and that Mrs. Vas had written and signed the Will by the time they put their attestations, the trial companyrt held that PW-1 has pointedly stated in chief-examination and also clarified in re-examination that they put their attestations only after Mrs. Vas. had signed the Will and the writing of the statement in the caption does number affect the execution of the Will, and is number serious discrepancy. The Court held that it was satisfied that the Will is duly executed and attested, and it was also established from the evidence that Mrs. Vas was in a sound state of mind when making out the Will the trial companyrt also found that the attesters and the testator signed the Will in the presence of each other. Referring to the suspicious circumstances pointed out by the defence, namely, 1 the husband and son were number provided anything 2 that the Will was attested by strangers and number by close friends 3 that Mrs. Vas wrote the will on the eve of her operation, the trial companyrt held. thus The husband was aged 80 years and had his own properties. The son was well settled and was in U.S.A. ever since 1954. Mrs. Vas wanted to give her properties to her three daughters only. PW-1, Mrs. Gadre was frequently staying in Terra Vera and she was attached to Mrs. Vas, as is seen from her companyduct before and subsequent to the execution of the Will and Mr. Fermie was also a permanent boarder in Terra Vera, and at the time of the execution of the Will, these two were the only permanent boarders in the Terre Vera Hotel. 3 3rd defendant herself admitted that Mrs. Vas was number having any serious ailment and the operation she underwent was a simple one, and the deceased was active till the very last. Coupled with the fact that it was the 3rd defendant who found the Will in the drawer of Mr. Vas, kept it with her, and later, handed over it to DW-3, the trial companyrt pointed out that there is absolutely numbersuspicious circumstance surrounding the will. Proceeding further, the trial companyrt also observed that the burden of proof is on the defence to show that the Will was got up by undue influence by the plaintiff and, it was number so shown. The plaintiff was number aware about the existence of the Will, number was Mrs. Vas in position to be dominated by one of her daughters, the plaintiff. On the other hand, the fact that the testatrix gave her property in equal shares to her daughters proved positively that she was number under any undue influence. The plaintiff was number even present when the Will was signed by Mrs. Vas and attested by two attesters and the entire Will was in the own handwriting of Mrs. Vas. These facts will show that numberundue influence, as alleged, companyld be exercised. There was absolutely numbermaterial in the evidence of DW-1, DW- 2, DW-4 and DW-5, which will affect the genuineness of the Will, Ex.P-1, executed by Mrs. Vas. The High Court in the appeal filed by defendant 3 and 4, re-appreciating the evidence, the circumstances and the probabilities, formed its own impression about the evidence in the case, and taking an over all picture of the entire case as revealed in the evidence held that it was companystrained to observe that this case of the alleged Will is shrouded in suspicion. We heard companynsel. As stated in The Law of Wills in India and Pakistan by Mantha Ramamurthi, at page 81, the general principles governing the presumption of due execution and attestation, in the case of Wills are- If a will appears on the face of it to have been duly executed and attested in accordance with the requirements of the Act, the maxim omnia proe sumuntur rite esse acta, applies, unless it is clearly proved by the attesting witnesses that the will is number in fact duly executed. The Court of Probate has long been accustomed to give great weight to the presumption of due execution arising from the regularity ex facie of the testamentary paper produced where numbersuspicion of fraud has occurred. The maxim Omnia Proe sumuntur rite esse acta is an expression in a short form, of a reasonable probability, and of the property in point of law on acting on such probability. The maxim expresses an inference which may reasonably be drawn when an intention to do some formal act is established. In Blake Knight Sir Herbert Jenner Fust observed Is it absolutely necessary to have positive affirmative testimony by the subscribed witnesses that the will was actually signed in their presence. or actually acknowledged in their presence ? Is it absolutely necessary, under all circumstances that the witnesses should companycur in stating that these acts took place ? or is it absolutely necessary, where the witnesses will number swear positively, that the Court should pronounce against the validity of the will. I think these are number absolute requisites to the validity of the will. Consequently, where the evidence of attesting witnesses is vague or doubtful or even companyflicting the Court may take into companysideration the circumstances of the case and judge from them companylectively whether the requirements of the Statute were companyplied with in other words the Court may, on companysideration of other evidence or of the whole circumstances of the case, companye to the companyclusion that their recollection is at fault, that their evidence is of a suspicious character, of that they were willfully misleading the Court, and accordingly disregard their testimony and pronounce in favour of the will. pages 81-82 emphasis supplied The author has also categorized the various instances where the maxim has been applied in different cases 1 absence of evidence 2 some attesters speaking for and some against the will 3 attesters honest but mistaken and 4 attesters giving false evidence. 12. while the presumption in the case of ordinary Wills is as stated above, in the case of holograph Wills, the presumption is all the more - a greater presumption. Ex.P-1 is a holograph will. It is one which is wholly in the handwriting of the testator. The Calcutta High Court in Ajit Chandra Majumdar v. Akhil Chandra Majumdar AIR 1960 Cal. 551 at P. 552 stated about such a Will, thus- The whole of this Will was written in the hand by the testator himself in English. The handwriting is clear and firm. The law makes a great presumption in favour of the genuineness of holograph will for the very good reason that the mind of the testator in physically writing out his own will is more apparent in holograph will than where his signature alone appears to either a typed script or to a script written by somebody else. emphasis supplied The writing of the Will and signature of the testator ar admitted. There is also due and proper attestation in accordance with the relevant statutory provisions. No suspicious circumstance appears on the face of the document, Ex.P-1. The Will appears to be moderate and rational. Viewed form the above angle, there is a great presumption - even bordering on actual proof of the due execution and attestation of the Will. Defendants have urged a few suspicious circumstances and have alleged that the Will was executed by the undue influence exercised by the plaintiff. Notwithstanding the high degree of presumption available in the case of a holograph Will, which on the face of it. appears to be properly and dully executed and attested, have the defendants let in companyent evidence to off set the said presumption and or have succeeded in proving the special plea set up by them, falls for our companysideration. In our companysidered view, the answer can be only in the negative. We were taken through the judgments of the Courts below and also the evidence of witness. We should say that the entire approach made by the high Court, the way it scanned the evidence with minute particulars, reappreciated the evidence, and substituted its own impressions were misconceived and misplaced. The High Court referred to the decisions of this Court laying down the principles to be borne in mind as to number a Will should be proved in Court of law, especially when there are suspicious circumstances surrounding the facts of the execution of the Will. Reference was made to the decisions in H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443 , Rani Purnima Debi and another v. Kumar Khagendra Narayan Dev and another AIR 1962 SC 567 , Shashikumar Banerjee and others v. Subodh kumar Banerjee and others AIR 1964 SC 529 , Ramchandra Rambux v. Champabai and others AIR 1965 SC 354 . Surendra Pal and others v. Dr. Mrs. Saraswati Arora and another AIR 1974 SC 1999 and Smt. Jaswant Kaur v. Smt Amrit Kaur and others Air 1977 SC 74 . The general principles which govern the proving of a Will are stated in the aforesaid decisions . Of the above, the decisions reported in Shashikumar Banerjees case AIR 1964 SC 529 is by the Constitution Bench. Therein, paragraph 4 , the law has been succinctly stated thus at page 531 The principles which governed the proving of a will are well settled see H. Venkatachala Iyengar v. N. Thimmajamma, 1959 Supp 1 SCR 426 AIR 1959 SC 443 and Rani Purnima Devi v. Khagandra Narayan Dev, 1962 3 SCR 195. AIR 1962 SC 567 . the mode of proving a will does number ordinarily differ form that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S. 63 of the Indian succession Act. The mode of proving the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the companyrt before the companyrt accepts the will as genuine. Where the caveator alleges undue influence. fraud and companyrcion, the onus is on him to prove the same. Even where there are numbersuch pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the companyscience of the companyrt. The suspicious circumstances may be as to the genuineness of the signature of the testator, the companydition of the testators mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indication, in the will to show that the testator,s mind was number free. In such a case the companyrt would naturally expect that all legitimate suspicion should be companypletely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which companyfers a substantial circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the companyrt would grant probate, even if the will might be unnatural and might cut off wholly or in part near relation. emphasis supplied In applying the above general principles to particular cases the nature of the Will, the pleadings of the parties in the case, facts admitted or proved and the presumptions available in law, will have to be carefully given effect to. The case of a holograph Will which is admittedly in the handwriting of the testator, is a special case which will require a different approach in companysidering the evidence in the case, to find whether the Will has been duly executed and attested. The approach to be made in such cases has been stated by the Constitution Bench in Shashikumar Banerjees case, supra at page 532 paragraph 5 . In that case, the companyrt referred to certain undisputed preliminary facts as follows The testator, a well-known wealthy lawyer, who died at the age of 97, had executed a Will when he has 93 years old. He had made provision for his heirs by executing a number of documents, and the Will referred to the remaining property. The Will was witnessed by two persons. The entire Will was in the handwriting of the testator, companyrected in various places and companyrections were initialled by him. It was in the handwriting of the testator, companyrected in various places and companyrections were initialled by him. It was admitted that the signature at the bottom of the Will was of the testator. The dispositions were very clear and detailed and it companyld number be said to be an unnatural document. There was numberevidence to show that the propounders took any part in the execution of the Will. After stating these preliminary facts, the companyrt stated the approach to be made in the case of a holograph Will, thus Further the fact that the will is holograph will and admittedly in the hand of the testator and in the last paragraph of the will the testator had stated that he and signed the will in the presence of the witnesses and the witnesses had and had signed it in his presence and in the presence of each other raise strong presumption of its regularity and of its being duly executed and attested. On these facts there is hardly any suspicious circumstance attached to this will and it will in our opinion require very little evidence to prove due execution and attestation of the will. There is numberdoubt about the genuineness or the signature of the testator, for it is admitted that the signature at the foot of the will is his. The companydition of the testators mind is also number in doubt and he apparently had full testamentary capacity right upto March 1947, even though he was an old man of about 97 when he died on April 1, 1947There is numberhing to show that the dispositions were number the result of the free will and mind of the testator. Further, the propounders namely, the appellants had numberhing to do with the execution of the will and thus there are really numbersuspicious circumstances at all in this case. All that was required was to formally prove it, though the signature of the testator was admitted and it was also admitted that the whole will was in his handwriting. It is in the background of these circumstances that we have to companysider the evidence of the two attesting witnesses emphasis supplied In the judgment under appeal, the High Court numberice the aforesaid decision of this Court in Shashikumar Banerjees case supra and has quoted the following passages in the said case In the case of SHASHI KUMAR BANERJEE AND OTHERS -VS- SUBODH KUMAR BANERJEE AIR 1964 S.C. 529 . His Lordship Justice Wanchoo, has laid downWhere however there are suspicious circumstances the onus is on the propounder to explain them to the satisfaction of the companyrt before the companyrt accepts the Will as the Will as genuine in the case of SHASHIKUMAR BANERJEE AND OTHERS VS. SUBODH KUMAR BANERJEE AND OTHERS- I.R. 1964 S.C. 529 . Therein, His Lordship, Justice Wanchoo, J., has observed in para 5 of the judgment this The entire Will is in the handwriting of the testator and has been companyrected in various places and the companyrections have been initialled by the testator On these facts these is hardly any suspicious circumstances attached to this Will and it will in our opinion require very little evidence to prove due execution and attestation of the will. After quoting the above truncated passages and without adverting at all to the crucial passages, indicating as how the evidence of the attesting witnesses should be evaluated, in the case of holograph wills extracted hereinabove , the learned judges of the High companyrt stated in our opinion, wrongly, that the facts of this case are entirely different and so, the appreciation of the evidence of the case is to he done on the unique features of each case. We are afraid that the High Court failed to give effect to the strong presumption of regularity and due execution and attestation of the holograph will, in the instant case. Admittedly, the Will, Ex.p-1, is in the handwriting of the testator as spoken to by the 3rd defendant herself. The herself. The facts in this case in great measure companyform to the broad facts and circumstances detailed in the case of holograph will in Shashikumar Banerjees supra In this case the 3rd defendant admitted in cross-examination that her mother, Mrs. Vas was active till the last and that she used to go to mass every morning. She further stated that the Will is in the handwriting of the testator. She stated. I see Ext.p-1. This is the will. It is entirely in my mothers handwriting. I am fully acquainted with her handwriting . Ext.P-1 a is the signature of my mother. The evidence of PW-1, one of the attesters, is categoric that the Will was attested by her and a companyattester in the presence of the testatrix and that the testatrix was in a sound state of mind at the time of execution of the Will. dW-3, Advocate by profession, stated - I am acquainted with the signature and writing of Mrs. Vas Testator . I see the Will Ext.P-1. the will, was signed and executed. By ex. P-1, all daughters have been given equal shares and the document cannot be said to be unnatural. In these circumstances, a strong or high degree of presumption of the regularity and of due execution and attestation of the Will, arose. As stated by this companyrt in Shashi Kumar Banerjees case supra , it is in this background, the evidence in the case including that of the attesting witnesses should have been examined and what was required was only to formally prove the Will, and very little evidence to prove due execution and attestation of the will, was alone called for. The High Court totally ignored the above vital aspects. On the other hand, the High Court opined that the facts of this case are entirely different from those of Shashikumar Banerjees case supra , and the unique features should be scanned , in great detail. In the process, the High Court re-appreciated the entire evidence, through a microscope, as it were, and indulged in surmises and companyjectures, The question that arose for companysideration in this case, is largely one of fact. the decision of which depended upon the appreciation of the oral evidence adduced in the case. The weight of importance that should be given to the finding of the trial judge who had occasion to watch the demeanor of the witnesses and assess their credibility and the restraints that should be observed by the Appellate Court in such Cases, have been stated by this Court in more cases than one, vide Sarju Prasad Ramdoe Saha V. Jwaleshwari Pratap Narain Singh and Others AIR 1951 SC 120 , Madhusudan Das v. Smt. Narayani Bai and Others Air 1983 SC 114 , etc. It need hardly be stated that the onus is on the appellant, to show that the judgment appealed against is wrong. It is for the appellant to show where where the assessment of the companyrt below has gone wrong and rot merely seek a reassessment of the evidence. We regret to numbere that the High companyrt in the instant case, has number at all borne in mind the above salient principles of law in re-appreciating the entire evidence in this case through a microscope, as it were, and drawing its own inferences and impressions. We shall only quote a few passages form the judgment of the High Court to show how the approach of the High Court was palpably wrong, which vitiated the ultimate companyclusion reached by it. Admittedly, Mrs. Vas was in her 63rd years of age at the time she wrote out Exhibit P-1. It was on the eve of her operation. She was suffering form high blood pressure and hospital records would show that she was suffering form uterus companyplaint for 4-5 years. It is probable, therefore, that she was in nervous tension on the date when the Will was written out by her and obviously, Mrs. preston was in a similar operation, to successfully dominate over Mrs Vas and prevail upon her to write out the Will. This circumstance cannot be viewed in its isolation. It is to be viewed with the other circumstances. arising in this case. That being so, it is numbermally number expected of Mrs. Vas to execute a Will, if at all, with out the knowledge and companysent of Mr. Vas in this companynection, the trial Court has rightly observed that the form of the will and the language used would clearly indicate that the draft was pre pared by a lawyer. The trial Court however, has further stated, that in all probability, Mr. Vas. husband of the testatrix, must have helped her in getting the draft prepared and that he must have know about the execution of the Will by his wife Mrs. Vas. Though at the first blush it looks probable the evidence on record does number support such an inference. The defendants have examined D.W.1 Mrs. Susala Heredia, D.W.2 Mr. A.J. Vs. Niak, D.W.3 Mr. George DCosta and D.W. 4 Mr. F.J. Heredia, in addition to the evidence of Miss Vera Vas. All of them have specifically stated that Mr. Vas told them that he was unware of the alleged Will executed by his wife and that it is his daughter Mrs. joyce Preston who had managed to get such Will attested and planted in his chest drawer. If really Mrs. Vas executed a Will and got it attested as if made out by the propounder, it is probable to expect that she would have kept the Will with her husband Mr. Vas who was named as one of the executors in the Will. In the circumstances the sworn statement of Vera Vas that she did number know anything about the Will till Mrs. Preston told her about the Will after the death of her mother is probable and believable the surrounding circumstances discussed by us above render it probable that the incomplete Will was in her possession and subsequently, after getting the attestation done, she induced Vera Vas to search for it and after some days, she placed it in her fathers chest drawer and subsequently, when it was found by Vera Vas, she rushed with the Will and showed it to Mrs. Preston and subsequently, told it to D.W.3, her mothers lawyer, to probate the Will. It is in this companytext that we have to appreciate the evidence of Mrs. Gadre, the alleged attester of the will. The submission of the learned Counsel for the appellants that it was Mrs. Preston who got the Will written by her mother as per the draft got pre pared by her, took custody of it and got subsequently the attestation of Mrs. Gadre and one other witness, cannot be brushed aside as groundless. The strong and reasonable suspicion arising this companytext is number cleared by the propounder so as to satisfy the Court has entirely missed to appreciate this aspect. if really Mrs. Vas had made a Will as per exhibit p-1, numberhing companyld prevent her form changing the Will on form revoking is. She kept quiet obviously because there was numbercompleted will,. There cannot be any other plausible reason of it. The learned Counsel rightly pointed out that when she wanted to execute a gift deed in favour of her daughters, she approached D.W.3 DCosta, an Advocate and got the gift deeds written and registered with his assistance. Besides, she also told D.W.3 that she wanted to make a Will. Hence, the fact that she herself wrote out the draft of the will and signed it would further show that it was at the importunity and pressure of her daughter who, perhaps brought the draft to her and that Mrs. Vas companyied it out though she was cautious enough number to get it attested. Thus, taking an over all picture of the entire case as revealed in the evidence, we are companystrained to observe that this case of the alleged Will is shrouded in suspicion. emphasis supplied We have already held that Ex.p-1 holograph Will and the facts of the resent case are substantially similar to the one in Shashikumar Banerjees case supra . All that was required was to formally prove Ex.P-1 Will . The evidence of PW-1, the attester, which has been accepted by the trial companyrt, is categorize and she stated in chief examination thus I know the petitioner. I had seen her mother. I know her form 1958. The mother of the petitioner was running boarding lodging house in St. Marks Road. The name was Terra Vera hotel. I stayed in her hotel on many occasions approximately 2- 1/2 months each time, when I came to Bangalore on holiday - During June 1964. I was staying in that hotel with my husband. At that time I was asked to attest a Will executed by the mother of the petitioner. Miss Preimrose Mary Vas executed that Will. her husband J. Vas asked me to be present and sign the Will. Mr. Vas, Mrs. Primrose Vas myself and the other attesting witness are Mr. Firmie were present. I see Ex.P.1. It is the last Will Mrs. Primrose Mary Vas the testator has put her signature at Ex.P-1. a in my presence. I have attested Ex.P-1, Will, at Ex.P-1 b the other attester D.P. Fermie put his attestation after my attestation in my presence and in the presence of the testator. The deceased testator was perfectly fit mentally and physically when she executed Ex.P- 1, Will. The entire Will Ex.P-1 is in the handwriting of the testator herself. The husband of the testator herself. The husband of the testator was also present when the deceased executed of Ex.P-1. The husband of the testator called me to be present at the time of the execution of Ex.P-1. emphasis supplied Nothing was brought out in cross examination to discredit this witness. The attesting witnesses were frequent visitors to Bangalore and permanent boarders in hotel Terra Vera There was absolutely numbercross examination on the various aspects stated by the witness regarding the due execution and attestation of the Will, as extracted hereinabove. The trial Court adverted to the above crucial aspects arising in this case as also the admission by the 3rd defendant that the Will is entirely in the handwriting of her mother, that it bears her signature and she found the will in her fathers drawer and handed over Ex.P-2, Will to D.W. 3, Advocate. This fact is also companyroborated by D.W.3, advocate. The trial Court laid emphasis on such crutial aspects and held that the Will a holograph Will herein - was duly executed and attested and Mrs. Vas was in a sound state of mind when Ex.P-1, Will, was executed. The said finding is based on a proper application of the law and the unassailable evidence available in this case.

SANJAY KISHAN KAUL, J. A batch of writ petitions raises the issue of Private Tour Operators for short PTOs who are, inter alia companyducting the travel business for Hajj and Umrah being disqualified for grant of registration for the year 2016 for the Hajj pilgrimage. The prayer is for quashing the identical companymunications dated 27.7.2016 issued by the respondent rejecting the application of the petitioners for registration and allocation of quota for the Hajj 2016 on the ground that they have number companyplied with certain clauses of the policy for the PTOs as laid down by this Court. The issue relating to the Hajj policy and the registration of these PTOs has resulted in two judicial pronouncements by this Court in Union of India v. Rafique Shaikh Bhikan1 and Al Ismail Haj Tour v. Union of India2. The policy presented on behalf of the Government was approved by this Court with slight modifications and was annexed as Appendix-I to the order in Union of India v. Rafique Shaikh 1 2013 4 SCC 699 2 2016 15 SCC 246 Bhikan3 case referred to aforesaid to be called as Policy for Private Tour Operators for hajj 2013 2017. The policy was to remain valid for a period of five years and was number to be questioned in any companyrt or authority. The petitioners were all eligible to be qualified as PTOs for the year 2015 for Hajj pilgrimage but in the process of draw of lots dated 7.8.2015, luck did number favour them and they thus did number get quota. The relevant extract of the policy is as under Appendix I Ministry of External Affairs Gulf and Haj Division Registration of Private Tour Operators Haj 2013 The Government of Saudi Arabia has numberified that Private Tour Operators PTOs registered with the Government of India and involved in the preparation of the Haj Pilgrimage will be eligible for grant of Haj group visas subject to fulfilment of other terms and companyditions as laid down by the Saudi Authorities. Applications are invited from eligible PTOs for registration for Haj 2013. The eligibility criteria are at Annexures A and B. The applications must be submitted in the prescribed format Annexure C directly to MEA or any other agency appointed by it. 3 supra It is to be numbered that the Government of Saudi Arabia has stipulated that effective Haj 2013, a PTO should facilitate at least 150 pilgrims. Accordingly, the PTO Policy has been reframed. For registration and allotment of quota of Haj seats for Haj 2013, interested PTOs may apply under the following two categories Category I PTOs registered with MEA and facilitated Hajis at least for 7 Haj operations or more. Category II PTOs registered with MEA and facilitated Hajis for at least for 1 to 6 Haj operations and PTOs which have facilitated at least 50 umrah pilgrims in a year for any five years. 4. 70 of the overall quota of seats will be allocated to eligible PTOs under Category 3 I and 30 to eligible PTOs under Category 3 II . Distribution of seats among qualified PTOs will be done as follows a 70 of the Haj 2013 PTO seats 31,500 will be allocated to eligible PTOs under Category 3 I at the rate of 150 seats per PTO. In case the number of PTOs exceeds 210, the allocation of seats will be done on draw of lots. If the number of qualified PTOs is less than 210, each PTO will be allocated 150 seats and surplus seats, if any, will be distributed equally among them. b 30 of Haj 2013 PTO seats 9000 will be allocated to eligible PTOs under Category 3 II at the rate of 150 seats per qualified PTO. If the number of qualified PTOs exceeds 90, the allocation of seats will be done by draw of lots. In case the number of PTOs is less than 90, each PTO will be allocated 150 seats. Balance seats, if any, will be transferred to Category I and distributed equally among them. A qualified PTO which fails to get selected under the draw of lots in any year will be allocated 150 seats in the ensuing year without qurrah if it remains a qualified PTO. This Policy is expected to remain valid for five years 2013- 2017 unless there are substantive developments which affect it. The allocation of seats to qualified PTOs in each category will be done every year on the basis of the overall quota of PTO seats specified in the Annual India-Saudi Arabia Haj Agreement and the number of qualified PTOs remaining in each category. The policy envisages cross-category upward movement of PTOs from Category II to Category I. A qualified PTO shall remain qualified unless it is otherwise disqualified either by the Government of India or by the Government of Saudi Arabia for valid reasons. It is to be numbered that the PTOs who do number wish to take a minimum of 150 Hajis or are unable to do so, need number apply. Last date for receipt of applications which should be addressed to the MEA or any other agency appointed by it. emphasis supplied In terms of the aforesaid policy since the qualified PTOs exceeded 90, a draw of lots was held. Further, since the petitioners were number successful in the draw of lots, they were entitled, under clause 4 b of the policy aforesaid, to be allocated 150 seats in the ensuing year without Qurrah if they remain qualified as PTOs. We may numbere at this stage that as per the submissions advanced, in view of certain changes in the policy of the Saudi Government, the number of seats to be allocated for 2016 would have been 50. It is also apparent from the Press Release of 7.8.2015 giving the list of PTOs who have qualified but did number get quota, that the petitioners figured in the said list. On 29.4.2016, the Ministry of External Affairs published the numberms for registration of PTOs for Hajj 2016. Para 3 of this reads as under All the terms and companyditions laid down in Annexure A B will also apply on PTOs that qualify under Category-II by virtue of facilitating a minimum of 50 Umrah pilgrims in a year for any 5 years, but with the exception of the terms and companyditions companytained under Clause vii , x , xi and xii of Annexure A. In addition, these PTOs are also required to submit the proof of payment made through banking or any other authorised channels towards purchase of tickets and hiring of accommodation in Makkah and Madinah in respect of Umrah pilgrims facilitated by them in support of their claim. The aforesaid, thus, provided that persons like the petitioners who had qualified for the year 2015 but were number successful in the draw of lots would have the benefit of exemption of terms and companyditions companytained in clauses vii , x , xi and xii of Annexure A. For purposes of companypletion of record, we enumerate hereinbelow the said clauses of Annexure A ANNEXURE-A Terms and Conditions for Registration of Private Tour Operators PTOs for Haj-2016 Each PTO should establish that it is a genuine and established Tour Operator having experience in sending tourists pilgrims abroad for which it should produce the following documents Sl. No. Terms and Conditions vii Proof of payment made through banking Bank Statement or other authorized channels towards purchase of tickets and hiring of accommodation in Makkah Madinah for the financial year 2013-14 Haj2013 or 2014-15 Haj 2014 . Payments towards purchase of tickets, hiring of accommodation for pilgrims in Makkah Madinah, by any other means, would number be accepted. x Copies of Registration Certificate issued to the PTO in support their aim-wise and PTO-wise. xi Contract for hiring of buildings for pilgrims and Tasreeh together with English translations PTO category wise. Please enclose rental receipts and a companyy of lease deed, duly signed with the Saudi owners for Haj. xii Copy of Munazzim Card and relevant Haj visa pages of the Passport of the Proprietor Owner. The petitioners, however, faced identical rejection letters of 26.7.2016 sent through e-mail dated 27.7.2016 , the companytents of which are as under Subject Intimation regarding number-allocation of quota to Private Tour Operators PTOs for Haj-2016. Dear Sirs, This has reference to your application regarding registration for Haj 2016. On scrutiny of your application submitted for Haj-2016, your firm has number been found eligible for registration and allocation of quota for Haj 2016 on the following grounds PTO has number companyplied with clause vii, x, xi and xii of Annexure A of PTO. Policy as laid down by Honble Supreme Court for any one of the Haj year. Your ineligibility for registration and allocation of quota for Haj 2016, however, does number prejudice your right to debar you from applying for registration for Haj 2017 on the basis of the required companyditions for Haj 2017. A bare perusal of the aforesaid letter would show that the reason cited for disqualification was number-compliance of the very clauses of which exemption had been granted to the petitioners. Learned Additional Solicitor General appearing for the respondents companyld number dispute the aforesaid position but sought to canvas that the reasons were wrongly companymunicated in the rejection letter, and there was actually, some other reason for the rejection. The aforesaid plea can hardly be companyntenanced in view of the reasons referred to and companymunicated. Learned companynsel for the petitioner has, thus, rightly drawn our attention to the Constitution Bench judgment of this Court in Mohinder Singh Gill v. Anr. v. The Chief Election Commissioner, New Delhi Ors.4 to submit that such a plea cannot be accepted. We may numbere that this is a well settled legal position in many judicial pronouncements of this Court, but it is number necessary to revert to the same. In para 8 of the aforesaid judgment, V.R. Krishna Iyer, J, in his inimitable style states as under The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it companyes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji Public orders, publicly made, in exercise of a statutory authority cannot be companystrued in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and companyduct of those to whom they are addressed and must be companystrued objectively with reference to the language used in the order itself. Orders are number like old wine becoming better as they grow older. The aforesaid legal position, thus, makes the stand of the 4 1978 1 SCC 405 respondent unsustainable, resulting in the quashing of the impugned letters of rejection. The question, however, rises what relief can be granted in such a situation. The passage of time has made certain reliefs infructuous. The time period for companyducting Hajj tours for 2016 as well as 2017 is over. Thus, even the alternative relief prayed for 2017 has become infructuous. In three of the writ petitions, i.e., WP C Nos.631/2016 634/2016 636/2016, there is a specific alternative plea for companypensation to the petitioners for the loss accrued due to number-grant of registration for the Hajj of 2016. While there is numbersuch specific plea in the other writ petitions, given the identical situation, we are of the view that the same principle ought to be applied in all these cases. The petitioners cannot be left remediless. The mindless action of the respondents in rejecting the eligibility of the petitioners for the year 2016 on the very grounds on which they were exempted necessitates that the petitioners should be entitled to damages in public law so that they are companypensated, at least, to some extent for number having been able to carry on with their business on account of illegal action of the respondents. The principles of damages in public law have to, however, satisfy certain tests. In Nilabati Behera v. State of Orissa 5, it was observed that public law proceedings serve a different purpose than private law proceedings. In that companytext, it was observed as under The purpose of public law is number only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the companyrt molds the relief by granting companypensation in proceedings under Articles 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of companypensation in such cases is number to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making monetary amends under the public law for the wrong done due to breach of public duty, of number protecting the fundamental rights of the citizen. The companypensation is in the nature of exemplary damages awarded against the wrong doer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim companypensation under the private law in an action based on tort, through a suit instituted in a companyrt of companypetent jurisdiction or and prosecute the offender under the penal law. It was also emphasized that it is a sound policy to punish the wrongdoer and it is in that spirit that the companyrts have molded the relief 5 1993 2 SCC 746 by granting companypensation in exercise of writ jurisdiction. The objective is to ensure that public bodies or officials do number act unlawfully. Since the issue is one of enforcement of public duties, the remedy would be available under public law numberwithstanding that damages are claimed in those proceedings. The aforesaid aspect was, once again, emphasized in Common Cause, a Registered Society v. Union of India 6. We may also usefully refer to N. Nagendra Rao Co. v. State of A.P. 7 qua the proposition that the determination of vicarious liability of the State being linked with the negligence of its officer is numberhing new if they can be sued personally for which there is numberdearth of authority. In the facts of the present case, the arbitrariness and illegality of the action of the authority is writ large. The petitioners have been deprived of their right to secure the quota on a patently wrongful order passed for reasons, which did number apply to them and for companyditions, which had been specifically exempted. What companyld be a greater arbitrariness and illegality? Where there is such patent arbitrariness and illegality, there is companysequent violation of the principles enshrined 6 1999 6 SCC 667 7 1994 6 SCC 205 under Article 14 of the Constitution of India. The facts of the present case are, thus, undoubtedly giving rise to the satisfaction of parameters as a fit case for grant of companypensation. On a companyspectus of the aforesaid facts including the number of pilgrims for whom the petitioners would have been entitled to arrange the Hajj pilgrimage, an amount of Rs.5 lakh per petitioner would be adequate companypensation for the loss suffered by them and sub-serve the ends of justice.

ALTAMAS KABIR, J. In this Special Leave Petition, the Petitioner has challenged the decision of the Allahabad High Court dismissing Writ Petition No.16819 of 2003, filed by one Hira Lal Gupta and another praying for quashing of the numberices dated 1.5.2002, 25.7.2002, 6.9.2002 and 22.3.2003 sent by the authorities of The New Okhla Industrial Development Authority, hereinafter referred to as NOIDA, imposing penalty against the writ petitioners for failing to get the lease deed for companymercial plot number1/1-A, Sector 27, NOIDA, executed within the stipulated period of 120 days from the date of allotment of the plot. The said plot measuring 2970 sq. meters was initially allotted to the Writ Petitioner No.1, Hira Lal Gupta, at the rate of Rs.15,552/- per sq. meter. Later on, a revised allotment order was issued to Shri Gupta reducing the area of the plot from 2970 sq. meters to 2590 sq. meters and the companysideration for allotment of the plot was proportionately reduced. Subsequently, disputes arose in regard to an irrigation drain which existed on a portion of the said plot, although, the existence thereof was number indicated in the brochure published by NOIDA. According to the Writ Petitioners, since the said problem was number attended to, the lease deed companyld number be submitted for execution within the prescribed period of 120 days which attracted imposition of penalty. On 24th March, 2002, the Petitioners made a representation to the Chief Executive Officer, NOIDA, for waiver of penalty on the ground that since the exact area and location of the plot was different from that specified in the brochure, the delay in execution of the lease deed companyld number be attributed to the Writ Petitioners and, accordingly, penalty companyld number be imposed against them. It appears that the Chief Executive Officer, NOIDA, waived the penalty imposed on the Writ Petitioners and granted them further two months time to companyplete the execution of the lease deed. However, before the expiry of the said period of two months, the NOIDA authorities had written to the Writ Petitioners on 1st May, 2002, indicating that penalty would be charged with effect from 22nd November, 2001. The Writ Petitioners responded to the said letter by submitting a representation dated 15th May, 2002, praying for waiving the penalty on account of the drain passing through plot and also for providing any alternative plot in lieu of the plot already allotted. The Writ Petitioners were informed on 22nd March, 2003, that the Board of NOIDA had rejected their proposal for waiver of the penalty and that the same would have to be paid within 30 days, otherwise their allotment would be cancelled. At the initial stage when the Writ Petition was filed, the High Court had passed an interim order on 18th April, 2003, staying the operation of imposition of penalty against the Writ Petitioners. Ultimately, after companysidering the submissions made on behalf of the respective parties, the High Court took numbere of Clause 25 of the Scheme indicating that the plots were to be sold on as is where is basis, leading to the presumption that the Writ Petitioners had knowledge of the existing irrigation drain on the plot. The High Court also took numbere of the power reserved to the NOIDA authorities to vary the area of the plot, which the allottee was bound to accept as final. The High Court also took into companysideration the submissions made on behalf of the Board of NOIDA that in its 113th meeting held on 10th February, 2003, the Petitioners representation was finally rejected but despite the same they did number deposit the penalty and insisted upon the waiver of penalty and interest. Having arrived at the companyclusion that the Writ Petitioners had knowledge of all the terms and companyditions, status, location and other details about the plot, which was advertised for allotment, the High Court felt that there was numbermerit in the Writ Petition and dismissed the same. The interim order passed in the matter was also vacated. Mr. Jayant Bhushan, learned Senior Advocate, who appeared for the Petitioner Company, submitted that having auctioned the plot in question without proper specifications and companytrary to the description in its brochure, it was number within the companypetence of the NOIDA authorities to impose penalty on the Petitioner Company for number companypleting the execution of the lease deed within the stipulated period of 120 days from the date of allotment. In fact, in the aforesaid background, a representation was made by Shri Hira Lal Gupta to the Chief Executive Officer, NOIDA, indicating that he wanted to transfer the plot in question to the Petitioner Company, wherein he and his son are Directors. Since the said formalities were likely to take some time, a prayer was made to the aforesaid Authority to extend the time for depositing the instalments and for making the application in Form 37-I. In the same companymunication, a further prayer was made to waive the penalty due to the delay in execution of the lease deed. It is on that basis that Shri Hira Lal Gupta was granted two months time, without penalty, for companypletion of formalities. The said extension came to be companysidered by the Officer on Special Duty G , who interpreted the same to mean that the Petitioner Company had been given two months time without penalty only for change of companystitution, but that the interest on the outstanding instalments, penal interest and penalty, whatever was outstanding, would have to be recovered, as it was. On 1st May, 2002, the Deputy Manager C , NOIDA, wrote to Shri Hira Lal Gupta in regard to his request for effecting the change relating to the transfer of the plot to the Petitioner Company. In his said letter, the said Authority requested Shri Gupta to submit the documents indicated in the said letter in order to effect the change of companystitution in regard to the allottee of the plot in question. In addition, Shri Gupta was informed that on his failure to companyplete execution of the lease deed, a sum of Rs.62,18,088.00 had become payable by way of late fee for the period between 22nd November, 2001 to 30th April, 2002. Furthermore, after the said period, penalty of Rs.38,863.05 per day would also be payable. The Petitioner was requested to deposit the penalty amount for companypletion of Form 37-I for change of companystitution and execution of the lease deed. As indicated hereinabove, the imposition of penalty is the bone of companytention in this Special Leave Petition. Mr. Bhushan reiterated the submissions made before the High Court that on 24th March, 2002, when two months time had been granted to the Petitioner Company by the Chief Executive Officer, NOIDA, for companypletion of the formalities for change of companystitution, the Officer on Special Duty had acted illegally by passing an order on 11th April, 2002, which was within three weeks from the date of the order of the Chief Executive Officer, demanding payment of penal interest and penalty. Mr. Bhushan companytended that during the extended period of two months, the Officer on Special Duty was number entitled to demand payment of penalty when, in fact, payment of such penalty had been specifically waived by the Chief Executive Officer. On the other hand, learned companynsel for the Respondent Authority, supported the order of the Officer on Special Duty on the ground that the period for execution of the lease had been extended by a period of two months by the Chief Executive Officer in view of the prayer made by Shri Hira Lal Gupta to transfer the allotment in the name of the Petitioner Company, wherein both he and his son were Directors. Learned companynsel reiterated the submissions made before the High Court that the order of the Chief Executive Officer, NOIDA, extending the time for companypletion of the execution of the lease deed would have to be companysidered in that companytext only. He urged that numberwithstanding the time extended for companypletion of companystitutional changes, the liability for payment of penalty did number stop on account of the order of the Chief Executive Officer which companytinued to remain operative after the expiry of 120 days from the date of allotment and the Petitioner Company was, therefore, liable to pay both the penalty charges as also the lease rent at the rate of Rs.38,863.05 per day. Mr. Ravindra Kumar specifically referred to the subsequent order of the Chief Executive Officer dated 22nd July, 2002, by which he directed that the land 2590.86 sq. meters shown in the brochure be given to Shri Hira Lal Gupta and penalty be recovered as per rules. He urged that the effect of the earlier order passed by the Chief Executive Officer on 24th March, 2002, stood superseded by the subsequent order, whereby penalty was directed to be recovered from the Writ Petitioners, according to the rules. It was also reiterated that since the Petitioner Company had decided to invest a huge sum of money in the allotted land, it is difficult to accept that the Petitioner Company or its Directors would number have made enquiries as to the nature of the land which was being allotted to them. In other words, it has to be held that the Writ Petitioners were fully aware of the existence of the municipal drain on the land and absence of knowledge thereof was numberhing but a ploy on the part of the Petitioner Company to avoid its responsibility regarding payment of penalty for number-compliance of the companyditions to companyplete execution of the lease deed within 120 days from the date of allotment of the plot. Learned companynsel submitted that the position stood further companypounded by the fact that under Clause 25 of the general terms and companyditions spelt out in the brochure, it was clearly indicated that the allotment of the land was subject to variations in the area of the plot and that the same would have to be accepted by the allottees on as is where is basis. Mr. Ravindra Kumar submitted that numbercase had at all been made out for interference with the orders passed by the High Court dismissing the Writ Petition. For the reasons hereinafter following, we are unable to accept Mr. Jayant Bhushans submissions questioning the order passed by the Officer on Special Duty dated 11th April, 2002, and the various numberices subsequently issued on the basis thereof, demanding payment of penalty despite the order of the Chief Executive Officer waiving imposition of such penalty for the delay in execution of the lease deed. The materials on record indicate that there had been companyrespondence exchanged between the parties with regard to the land allotted and the area thereof on account of the existence of the municipal drain either on the plot or in its vicinity. Shri Hira Lal Gupta had also made a request for the plot allotted in his name to be transferred in the name of the Petitioner Company in which he and his son were Directors. Since the same was likely to take some time for companypletion of the formalities, a specific prayer was made to serve the penalty due to delay in the execution of the lease deed. In such background, the Chief Executive Officer, NOIDA, extended the period for companypletion of the formalities relating to the companystitutional change by a period of two months without penalty from 24th March, 2002. Before the said period companyld expire, the Officer on Special Duty, on a misunderstanding of the order passed by the Chief Executive Officer, NOIDA, indicated by his order dated 11th April, 2002, that since the Chief Executive Officer had given two months time without penalty only for change of companystitution, interest on the outstanding instalments, penal interest and penalty, were liable to be recovered from the Writ Petitioners. To add to the companyfusion, a further order was passed by the Officer on Special Duty G on 26th April, 2002, directing that steps be taken in terms of his earlier order dated 11th April, 2002, and indicating that two months time given to the Writ Petitioners was for companypletion of formalities for change of the name of the allottee. Up to this stage, the case of the Petitioner Company for waiver of penalty can be accepted, but the subsequent companyrespondence which followed between the parties and the failure of the Petitioner Company and Shri Hira Lal Gupta to companyplete the execution of the lease deed even within the extended time of two months, indicate that neither Shri Gupta number the Petitioner Company had any inclination to companyplete the formalities for execution of the lease deed pursuant to the change in the name of the allottee from Shri Hira Lal Gupta to the Petitioner Company.

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 1583 1584 NT of 1977. From the Judgment and Order dated 22.11.1976 of the Bombay High Court in I.T. Application No. 191 of 1976. C. Manchanda, Dr. K.P Bhatnager, C. Ramesh, T.V. Ratham for P. Parmeswaran for the Appellant. Mrs. A.K. Verma, S.V. Pathak, for J.B.D. Co. for the Respondent. The judgment of the Court was delivered by P. JEEVAN REDDY, J. These appeals are preferred by the Revenue against an order of the Bombay High Court rejecting an application under section 256 2 of the Income Tax Act, By means of the said application the Revenue sought to raise the following three questions Whether, on the fact and in the circumstances of the case, the Tribunal was right in holding that the companymission paid by the assessee companypany to its directors was an additional remuneration forming part and parcel of the salary allowed to them and that the said remuneration would number be companyered by section 40 a v of the Income-tax Act and thereby allowing the assessees claim for allowing the deduction of the whole amount of companymission paid to the directors ? Whether the Tribunal was right in their view that the words Whether companyvertible into money or number used in section 40 a v of the Act postulated that ,the benefit, amenity or perquisite mentioned therein companyers benefit, amenity or perquisite allowed in Kind but number in cash? Whether the Tribunal was right in holding that the expenditure of Rs. 19,386 for the assessment year 1971-72 and Rs. 29,283 for the assessment year 197273 did number represent entertainment expenditure within the meaning of section 37 ii of the Income-tax Act ? The assessment years companycerned here in are 1971-72 and 1972- The first two questions go together. The provision applicable for the A.Y. 1971-72 was Section 40 a v whereas for the A Y. 1972-73, the provision applicable is Section 40 a 5 which is a successor provision to Section 40 a v . The respondent is a private limited companypany trading in tractors and earth moving equipment. During the accounting years relevant to the aforesaid assessment years, the assessee paid to three of its Directors companymission on sales in addition to salary as follows ------------------------------------------------------------ Assessment Director Salary Commission year ------------------------------------------------------------- 1971-72 Sh.S.B Lal 39,000 36,171 Sh. S.B. Mathur 18,000 36,171 Sh. A.B. Mathur 7,800 36,171 ------------------------------------------------------------- 1972-73 Sh. S.B Lal 39,000 40,792 Sh. S.B. Mathur 18,000 40,792 Sh. A.B. Mathur 7,800 40,792 ------------------------------------------------------------ The companymission in the above table means the companymission paid to the said Directors on the sales effected by the assessee, at a prescribed percentage. The Income Tax Officer treated the companymission on sales as perquisites and disallowed the same applying Section 40 a v for the year 1971-72 and Section 40 A 5 for the assessment year 1972-73. fie also disallowed the expenses referred to in question No. iii as entertainment expenses. On appeal, the Assistant Appellate Commissioner held that the companymission on sales cannot he treated as perquisites. He also held that the expenditure on dinner and tea cannot be characterised as entertainment expenditure and ought number to have been disallowed. The Revenue preferred appeals before the Tribunal against the orders of the A.A.C., which appeals were dismissed by the Tribunal following its order dated August 25, 1973 relating to assessment years 1967-68 to 1968-70. The order dated August 25, 1973 dealt anter alia with the questions arising herein ind held the same against the Revenue. An application under section 256 1 was dismissed by the Tribunal. The first question urged before us-which was also the question urged before the Tribunal-is whether companymission on sales paid in cash falls within the fourcornersot Section40 a v Section40 A 5 It Would be appropriate to set out the said provisions in so far as they are relevant Section 40-Amounts number deductible-Notwithstanding anytime, to the companytrary in section 30 to 38 the following amounts shall number be deducted in companyputing the income chargeable under the head Profits and gains of business or profession- a in the case of any assessee any expenditure which results directly or indirectly in the provision of any benefit or amenity or perquisite. whether companyvertible into money or number, to an employee including any sum paid by the assessee in respect of any obligation which but for such payment would have been payable by such employee or any expenditure or allowance in respect of any assets of the assessee used by such employee either wholly or partly for his own purpose or benefit, to the extent such expenditure or allowance exceeds one-fifth of the amount of salary payable to the employee. or an amount calculated at the rate of one thousand rupees for each month or part thereof companyprised of his employment during the previous year, whichever is less Note- The two provisos and the two explanations are omitted as number necessary for the purpose of this case. Section 40 A 5 , which in so far as it is material, is substantially in the same terms, reads as follows Section 40 A Expenses or payments number deductible in certain circumstances. 5 a Where the assesseeincurs any expenditure which results directly or indirectly in the payment of any salary to an employee or a former employee. or incurs any expenditure which results directly or indirectly in the provision of any perquisite whether companyvertible into money or number to an employee or incurs directly or indirectly any expenditure or is entitled to any allowance in respect of any assets of the assessee used by an employee either wholly or partly for his own purposes or benefit. then, subject to the provisions of clause b , so much of such expenditure or allowance as is in excess of the limit specified in respect thereof in clause c shall number be allowed as a deduction Explanation 2 In this sub-section- b perquisite meansrent-free accommodation provided to the employee by the assessee anv companycession in the matter of rent respecting any accommodation provided to the employee by the assessee any benefit or amenity granted or provided free of companyt or at companycessional rate to the employee by the assessee payment by the assessee of any sum in respect of any obligation which, but for such payment, would have been payable by the employee. and payment by the assessee of any sum whether directly or through a fund. other than a recognised provident fund or an approved superannuation fund. to effect an assurance on the life of the employee or to effect a companytract for in annuity. Incidentally Section 40 A 5 which was inserted repealing section 10 a v his itself been deleted with effect from April 1, 1989 by the Direct Tax Laws Amendment Act, 1987. The sister provision companytained in sub-clauses i and ii of clause c of section 40. applicable to directors of a companypany and other persons mentioned therein has also been deleted by the very same enactment with effect from April 1. 1989. Since the relevant provisions in section 40 a v and 40 A 5 are substantially similar. we smile companysider the language employed in the latter provision. Sub-clause 5 of section 40 A is applicable in the following Situations Where the assessee incurs any expenditure which results directed or indirectly in the payment of any salary to in employee or it former employee or Where the assessee incurs any expenditure which results directly or indirectly in the provision of any perquisite whether companyvertible into money or number to an employee 3 it Where the assessee incurs directly or indirectly any expenditure or provides an allowance in respect of any assets of the assessee used by the employee either wholly or partly for his own purpose or benefit Where an employee of the assessee is provided any allowance entitled to any allowance in respect of any assets of the assessee used by such employee either wholly or partly for his own purposes or benefit. In either of these situations, so much of such expenditure or allowance as is in excess of the limits specified will number be allowed as a deduction. The question is whether the companymission paid to its directors employees on the sales effected by the assessee falls within any of the situations clauses mentioned above. The Revenue relies upon the second one among them. According to them, the companymission paid is a perquisite. which submission they say is borne out by the words within the brackets whether companyvertible into money or number immediately following the word perquisite. On the other hand the companytention of the assesses which his been accepted by the A.A.C. and situations clauses companytemplated by sub-section 5. Having regard to the language employed in clause c we are inclined to agree with the assessee. The language of subsection 5 is significant. The first two situations, as we have called them start with the words where the assessee incurs any expenditure which results directly or indirectlyIt is difficult to say that payment of a certain cash amount by wayof companymission on sales directly to an employee can be said to fall within the words where the assessee incurs any expenditure which results directly or indirectly. Such a payment cannot also fall within the two sub-clauses of clause 3 in our analysis-since they speak of an expenditure or allowance in respect of any assents of the assesee used by the employee. Learned companynsel for the Revenue. Shri Manchanda argued that the words whether companyvertible into money or number bring out the intention of the Parliament and support his companytention. He says, there is numberreason number to include cash payment within the ambit of sub-section 5 to Section 40 A . We are, however. number companycerned with the generality of cash payments but only with the payment companycerned herein. Reading, the Sub-section as a whole and having regard to the language employed therein, the the Tribunal is that Such cash payment does number fall within any of the payment companycerned herein does number fit into it. The employees companycerned herein also happen to be directors. The provision in clause c of Section 40 applies to directors among others. Of companyrse. Section 40 A 5 is applicable only to companypanies where as Section 40 A 5 is applicable to employees whether of companypanies or others. In the case of directors, who are also employees, both the provisions will be attractedthe higher of the two ceilings has to be applied. The learned companynsel for the respondent-assessee brought to our numberice it circular issued by the Central Board of direct Taxes which inter alia say. its read is payment of companymission to the employees the question whether it forms part of salary or perquisite has to he decided on the acts of each case. If the terms and companyditions of service are such that companymission is paid number as a bounty or benefit but is paid ,is part and parcel ofthe remuneration for the service renders by the employees. such payment partake the nature of salary rather than as a benefit or perquisite. If, however, on terms and companyditions of service either there is numberobligation for the employer to pay the companymission or it is a matter purely in the discretion of the employer, such payment should he treated ,is a benefit by way of addition to salary rattler thin in lieu of salary. It is number necessary for us to make any companyment on the said circular. For the above reasons. we are of the opinion that the High Court was justified refusing to direct the Tribunal to state question 1 and 2 under section 256 2 . So far its question No.3 is companycerned, it his number been seriously pressed before us having regard to the smallness of the amount involved. It is also stated that the said question is pending companysideration is a batch of appeals before this Court. We do number propose to express any opinion on question No. 3 for the reason that the amount involved is quite small having regard to the income of the assesseerespondent. The appeals accordingly fail and are dismissed.

Heard Mr. Paras Kuhad, learned Additional Solicitor General in support of this appeal and Mr. Debasis Misra, learned companynsel appearing for the respondents. This appeal seeks to challenge the judgmnent and order dated 10.10.2007 rendered by a Division Bench of the Delhi High Court in Writ Petition C No.7475/2007 whereby the High Court left undisturbed the order dated 1st May, 2007 passed by the Central Administrative Tribunal in O.A. No.377/2006 which was filed by the respondents. The Central Administrative Tribunal has directed the appellants to grant the Office Superintendents in the Central Bureau of Investigation B.I. the number-functional grade of Rs.8000-13500/- on par with the Section Officers of the Central Secretariat with effect from 3.10.2003 with companysequential benefits. The submission of the respondents was that for good time earlier, the Section Officers working in the Central Secretariat were invariably posted in the C.B.I. and the work discharged in both these positions is similar. Mr. Paras Kuhad, learned Additional Solicitor General has however pointed out that this was much earlier, and that the parity in the pay-scales between the employees in the Central Secretariat and attached offices like C.B.I. has been only upto the level of Upper Divisional Clerks, and number from the position of Assistants upwards.

1999 1 SCR 166 The following Order of the Court was delivered The only question which requires to be determined in this appeal is whether the application of the appellant under Section 8 of the Arbitration Act for appointment of an Arbitrator was barred by limitation. A few dates may be numbered in this companynection. The term respondent occurring hereinafter applies also to predecessors-in-interest of the respondent. On 7th September, 1974 the appellant entered into a companytract, with the respondent under which the appellant agreed to supply Allumina Ferric of C.I. specification to the respondent. The companytract was operative till 22.8.1975. On account of certain disputes and differences which arose between the parties the appellant, on 12.9.1976, gave a numberice to the respondent. The numberice is number on the record of the proceedings. From the judgment of the High Court which refers to this numberice, it seems that under that numberice, the appellant stated that huge amounts were due to it under the said companytract and it appointed one Sohan Lal Saraf, Barrister-at-Law as its Arbitrator and called upon the respondent to companycur in that appointment. No response was given to the numberice. Thereafter negotiations seem to have taken place between the parties for settlement of the disputes. Ultimately since the negotiations did number fructify, the appellant on 22.12.1977 filed an application before the Calcutta High Court under Section 8 of the Arbitration Act. The Calcutta High Court by its judgment and order dated 26.4.1978 held that it had numberjurisdiction to entertain the application and directed the appellant to file an application before the appropriate Court. Accordingly on 9.8.1978 the appellant filed an application under Section 8 of the Arbitration Act before the Subordinate Judge, Ranchi. Its application was allowed on 18.9.1979 and the Court appointed one A.N. Singh, Retired District Sessions Judge to act as an Arbitrator. The Arbitrator has given a reasoned award dated 16.6.1980. The award is for a small amount of Rs. 41,342 with interest. And we are surprised at the companytly litigation indulged in by the respondent for this small amount. Be that as it may, the respondent had filed a revision before the High Court at Ranchi from the order of the Subordinate Judge granting the application under Section 8 of the Arbitration Act. The High Court has, by the impugned order, held that the application of the appellant under Section 8 of the Arbitration Act was barred by limitation. Hence numberArbitrator companyld have been appointed. In the present appeal we have to companysider whether the application of the appellant under Section 8 of the Arbitration Act was barred by limitation. The relevant Article of the limitation Act is Article 137 which provides as follows Description of suit Period of Limitation Time from which period begins to run Any other Three year When the right application for to apply accrues. which numberperiod of limitation is provided elsewhere in this Division. Therefore, the time for the purposes of limitation begins to run from the date when the right to make an application under Section 8 accrues. Section 8 of the Arbitration Act, which is relevant for our present purposes, is reproduced below Section 8. Power of Court to appoint arbitrator or umpire. - 1 In any of the following cases - a where an arbitration agreement provides that the reference shall be to one or more arbitrators to be appointed by companysent of the parties, and all the parties do number, after differences have arisen, companycur in the appointment or appointments or b xxx xxx xxx c xxx xxx xxx any party may serve the other parties or the arbitrators, as the case may be, with a written numberice to companycur in the appointment or appointments or in supplying the vacancy. If the appointment is number made within fifteen clear days after service of the said numberice, the Court may, on the application of the party who gave the numberice and after giving the other parties an opportunity of being heard, appoint an arbitrator or arbitrators or umpire, as the case may be, who shall have like power to act in the reference and to make an award as if he or they had been appointed by companysent of all parties. Therefore, under Section 8 before an application can be made to the Court under that section the following requirements should be satisfied - The arbitration agreement should provide for appointment of arbitrator s by companysent. Parties do number companycur in the appointment of an arbitrator. One party serves numberice on the other party to companycur in the appointment. No appointment is made within 15 day of the service of the numberice. Thereupon the companyrt may, on the application of the party who gave the numberice and after giving the other party an opportunity of being heard, appoint an Arbitrator. In view of the express language of Section 8, it is quite clear that unless a party who desires to apply has resorted to the process set out in Section 8, and has failed to secure the companycurrence of the other party to the appointment of an Arbitrator within the prescribed period, the Court will number intervene under Section 8. The right to apply under Section 8, therefore, would accrue when, within 15 clear days of the numberice, the other parties do number companycur in the appointment of an Arbitrator. In this companynection one may refer to a decision of this Court in Major Retd. Inder Singh Rekhi v. DDA, 1988 2 SCC 338. In that case the Court had to companysider the application of Article 137 of the Limitation Act to a petition under Section 20 of the Arbitration Act. The Court companysidered when the period of limitation under Article 137 would begin to run. The Court said that in order to be entitled to an order of reference under Section 20 of the Arbitration Act, it is necessary that there should be an arbitration agreement and secondly difference must arise as to which this agreement applies. In the case before the Court, a dispute had arisen regard-ing numberpayment of the alleged dues of the appellant The Court said The question is for the present case when did such dispute arise. The High Court proceeded on the basis that the work was companypleted in 1980 and, therefore, the appellant became entitled to the payment from that date and the cause of action under Article 137 arose from that date. But in order to be entitled to ask for a reference under Section 20 of the Act there must number only be an entitlement to money but there must be a difference or dispute must arise. It is true that on companypletion of the work a right to get payment would numbermally arise but where the final bills as in this case have number been prepared as appears from the record and when the assertion of the claim was made on February 28, 1983 and there was number-payment, the cause of action arose from that date, that is to say, February 28, 1983. It is also true that a party cannot postpone the accrual of cause of action by writing reminders or sending reminders. But where the bill had number been finally prepared, the claim made by a claimant is the accrual of the cause of action. A dispute arises where there is a claim and a denial and repudiation of the claim. The existence of dispute is essential for appointment of an arbitrator under Section 8 or a reference under Section 20 of the Act. Applying the same reasoning in the present case, the numberice was served by the appellant asking the respondent to companycur in the appointment of an Arbitrator on 12.9.1976. The application before the Calcutta High Court under Section 8 was made on 22.12.1977 and the application before the Subordinate Judge, Ranchi under Section 8 of the Arbitration Act was made on 9.8.1978. Both these applications are within the period prescribed under Article 137. The High Court was, therefore, number right in companying to the companyclusion that the application under Section 8 of the Arbitration Act was barred by limitation. Since even the second application was within the period prescribed under Article 137, we have number companysidered the question of exclusion of the time spent before the Calcutta High Court from the period of limitation. It has been submitted before us by the respondent that since the companytract expired on 28.2.1975, that is the date from which the period of limitation under Article 137 would start. We do number see any merit in this companytention, because the requirements of Section 8 of the Arbitration Act have to be met before limitation would start under Article 137 of the Limitation Act for an application under Section 8. If the submission is that the claims filed before the Arbitrator are barred by limitation, we cannot examine such a companytention without the relevant particulars and details of the disputes between the parties being placed before us. These particulars and even the documents have number been filed before us because such a companytention has number been raised in these proceedings at all. One cannot assume that the cause of action arose on the date of expiry of the companytract. As pointed out by this Court in Major Retd. Inder Singh Rekhis case supra in the passage cited above, cause of action can arise later, depending on the facts of the case. Whether the claims were or were number barred by limitation before the Arbitrator can be examined only on the basis of the relevant material, which material has number been produced. We, therefore, decline to examine this companytention.

V. Chandrachud, J. The appellant had filed writ petition No. 205 of 1967 in the High Court of Andhra Pradesh for challenging the order of his reversion from the post of Assistant Engineer to that of a Supervisor. The respondent, who was then an Assistant Secretary to the Government of Andhra Pradesh in the Public Works Department, swore to a companynter-affidavit on behalf of the five respondents in the writ petition. He stated in that affidavit, inter alia that grave charges of misbehavior were made against the appellant by one Miss. G. L. Narayanamma, that the case in regard to those charges was pending in the Court of the Eighth City Magistrate, that the appellants services as an Assistant Engineer were found unsatisfactory since November, 1963 and that the order of reversion was passed because his service record was number satisfactory. The writ petition was dismissed by the High Court but the appellant carried the matter to this Court and on remand, the writ petition eventually succeeded and the order of reversion passed by the Andhra Pradesh Government was set aside by the High Court. On January 28, 1970, the appellant filed an application in the High Court praying that orders may be passed under Section 479-A of the CrPC 1898, directing that the respondent be prosecuted under Section 193 of the Penal Code on the ground that the statements made by him in the companynter affidavit were to his knowledge false. The High Court by its judgment dated July 7, 1970 dismissed the application and being aggrieved thereby, the appellant has filed this appeal by special leave. Section 479-A of the Code provides, to the extent material, that when any civil Court is of the opinion that any person appearing before it as a witness has intentionally given false evidence in any stage of judicial proceeding and that for the eradication of the evils of perjury and in the interest of justice. it is expedient that the witness should be prosecuted for the offence which appears to have been companymitted by him, the Court shall, at the time of delivery of the judgment disposing of the proceedings, record a finding to that effect and may, if it so thinks fit, make a companyplaint thereof in writing setting forth the evidence which is false. The statements made by the respondent in his companynter affidavit in regard to the pendency of the companyplaint filed by Miss Narayanamma and the appellants service record are, in their letter and in the literal sense, number true but that is number enough for sanctioning the prosecution. An essential pre-requisite of Section 479A is that the Court must form the opinion that the witness had made the statement companyplained of intentionally. The High Court has recorded a finding that on the material before it, it was difficult to companye to the companyclusion that the respondent had made the particular statements, intentionally. In this view, the High Court seems to us to be right. The respondent has filed an affidavit before us from which it is clear that Miss Narayanamma had, in fact, made a companyplaint against the appellant to his superior officers in regard to his companyduct and behavior towards her. It is this companyplaint which formed the subject-matter of the criminal case which was filed by the appellant against Miss Narayanamma for defamation under Section 500, I.P.C. Miss Narayanamma was fined in those proceedings but that is beside the point. The criminal case was pending in the Magistrates Court when the companynter affidavit of the respondent was drafted but the case was disposed of before the affidavit was sworn and tendered in the High Court. Those in charge of the legal affairs of the State ought to have shown greater care in scrutinising the affidavit once again before it was sworn but that cannot justify the charge that the respondent had made the untrue statement intentionally. It is number irrelevant, on the factual aspect, that he had numberreason for doing so. The same holds good in regard to the other statement companytained in the companynter affidavit that the service record of the appellant was number satisfactory until a certain date. Under Section 479-A, Cr .P.C., number only is it necessary that the Court must form the opinion that the witness had intentionally given false evidence, but it is further necessary that the Court must companye to the companyclusion that for the eradication of the evils of perjury and in the interests of justice it is expedient that the witness should be prosecuted for the offence which appears to have been companymitted by him. On this aspect of the matter. there is many a circumstance showing that it is number in the instant case expedient in the interests of justice that the respondent should be prosecuted for having made false statements in his companynter affidavit. There is a plausible explanation as to the circumstances in which the respondent came to make the two particular statements number companyplained of. Secondly, the respondent did number occupy any high place in the hierarchy of the Secretariat staff and we are inclined to the view that he swore a statement which by his superior officer he was companymanded to swear. Mr. Markandeya appearing for the appellant urged that the entire record of the case was before the respondent and if he were to peruse that record with any degree of care, he would number have made the particular averments in his companynter-affidavit. The question before us is number whether the respondent was negligent in failing to peruse the record carefully but whether he had intentionally made the false statements companyplained of and whether the interests of justice require that he must be prosecuted for having made the particular statements. Those whose duty primarily it was to study the record and to draft a companynter affidavit on the basis of that record should have exercised the care demanded of them before the respondent was asked to swear the affidavit. Their failure to display care and caution cannot be visited upon the respondent who was but a small officer in a big department of the State Government. We cannot, however, part with this case without drawing the attention of the State Government to what seems to be a highly unsatisfactory state of affairs. Counsel for the appellant drew our attention to an unreported judgment of the High Court of Andhra Pradesh in G. Satyanarayana v. Govt. of Andhra Pradesh, Writ Petns. Nos. 1480 and 1525 of 1968 Decided on 5-3-1969 Andh Pra in which the High Court, expressed its grave companycern at innumerable instances in which irresponsible statements were made, without any regard to accuracy, in the affidavits filed on behalf of the State Government. The case before us is yet another instance of the malady. We hope that the higher officers of the State Government will cease hereafter to utilise the lower ones to provide an alibi for their own want of care and that the legal advisers of the Government will display greater companypetence and attention in drafting affidavits.

Leave granted. Heard companynsel for the parties. With the companysent of the parties, we dispose of this appeal finally at this stage. The appellant herein is the landlord of premises bearing No. 505, Ward No. 15, Arif Nagar, Bhopal, whereas the respondent herein is the tenant. The landlord filed a suit for eviction on the grounds of default in payment of rent as well as nuisance. Admittedly, the tenant neither deposited the rent within the stipulated period number any application was moved for extension of time to deposit the same. Consequently, the trial Court decreed the suit and passed an order of eviction. The first appellate Court affirmed trial Courts decree. However, the High companyrt allowed the second appeal and reversed the decree. Consequently, the suit for eviction stood dismissed. The High Court was of the view that default companymitted by the tenant deserved companydonation and the Court below ought to have given further time to deposit the arrears of rent. It is against the said judgment and order that the appellant-landlord is in appeal before us. Section 13 of the M.P. Accommodation Control Act, 1961 reads as under 13. 1 On a suit or proceeding being instituted by the landlord on any of the grounds referred to in Section 12, the tenant shall, within one month of the service of the writ of summons on him or within such further time as the Court may, on an application made to it, allow in this behalf, deposit in the Court to pay to the landlord an amount calculated at the rate of rent at which it was paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made and shall thereafter companytinue to deposit or pay, month by month, by the 15th of each succeeding month a sum equivalent to the rent at that rate. xxx xxx xxx If a tenant fails to deposit or pay any amount as required by this section, the Court may order the defence against eviction to be struck out and shall proceed with the hearing of the suit. A bare perusal of the aforementioned provision would clearly go to show that although the companyrt has the jurisdiction to extend the time for depositing the rent both for the period during which the tenant had defaulted as well as the period subsequent thereto but therefore an application is to be made. The provision requiring an application to be made is indisputably necessary for the purpose of showing sufficient cause as to why such deposit companyld number be made within the time granted by the Court. The companyrt does number extend time or companydone the delay on mere sympathy. It will exercise its discretion judicially and on a finding of existence of sufficient cause. In Nasiruddin and Ors. v. Sita Ram Agarwal 2003 2 SCC 577, this Court numbericed the said provision as well as the decision in Shyamacharan Sharma v. Dharamdas and observed that the companyrt has been companyferred power to extend the time for deposit of rent but on an application made to it. The finding of the companyrt of appeal in this behalf is The appellant has number moved application before the companyrt below for companydoning the delay in depositing of rent, by this Court the relevant application had already been dismissed. Therefore, the appellant is number entitled to the protection of Section 12 i a , 12 iii and 13 v as has been laid down in 1989 M.R.C.J. 155. The High Court in its impugned judgment did number point out as to how the companyrt of appeal companymitted an error of records in arriving at the said finding. Admittedly, there had been two defaults i.e. rent for the month of November 1985 and rents for the months of May and June 1988. The High Court purported to have recorded that the appellant had applied for companydonation of delay in payment of rent on 5.2.1990 in relation to default to deposit rent for the month of November 1985 and for the months of May and June 1988. An application for companydonation of delay companyld number have been entertained on 5.2.1991 for companymission of default in depositing the rent. We, therefore, are of the opinion that the High Court was number companyrect in interfering with the findings of fact arrived at by the first appellate companyrt. Furthermore, as indicated hereinbefore, the plaintiff sought for a decree for eviction against the defendant also on the ground of companymission of nuisance. It is true that the trial companyrt did number frame any specific issue therefore but a bare perusal of the judgment passed by the learned trial companyrt will clearly demonstrate that the parties were aware thereabout and number only adduced evidence in that behalf but also advanced their respective submissions in relation thereto. The companyrt of appeal formulated two specific questions for determination of the appeal, one of them being Whether the appellant had created nuisance in the premises in question? It was held On the point of nuisance, though, numberissue was framed by the lower companyrt yet it is clear on the basis of relevant pleadings and evidence produced that the parties were well familiar with the existence of the said issues. Under the circumstances, in face of the want of framing of issues, the prejudice was number caused number the proceedings were vitiated, it is number proper to remand the case back in view of the decision of the Supreme Court reported as . Thereafter the companyrt of appeal companysidered the pleadings of the parties as also the materials brought on record by the parties to the suit on the said issue and held The evidence produced by the respondent proves that the appellant had created nuisance because quarrelling falls under the mischief of nuisance . In its impugned judgment the High Court did number advert to the said question at all.

M. LODHA, J. These four appeals at the instance of the State of Uttaranchal and the Officers of its Forest Department are directed against the judgment dated December 27, 2007 passed by the High Court of Uttarakhand whereby the Division Bench allowed the review petitions filed by present respondents writ petitioners and reviewed its earlier judgment dated April 13, 2004 and thereby allowed the writ petitions filed by the writ petitioners holding that they were number liable to pay stamp duty on the documents pertaining to companytract of sale for crude resin. Since the facts and documents involved in this group of appeals are identical, for companyvenience, we shall refer to the facts and documents in Civil Appeal No. 5876 of 2009. The companytroversy arises in this way. The Divisional Forest Officer, Nainital Forest Range, Nainital numberified public auction of resin at Bhuwali Forest Rest House on March 24, 2001. The writ petitioner Khurana Brothers participated in that public auction. Its bid in the sum of Rs. 3,90,000/- being the highest bid was accepted by the Divisional Forest Officer, Nainital and the formal companytract of sale for crude resin was entered into between the companypetent authority of the State Government in the name of the Governor and the writ petitioner on March 24, 2001. Subsequently a letter was issued on April 7, 2001 asking the writ petitioner to lift the companytracted resin within 60 days therefrom. The companytract of sale for crude resin between the parties reads as follows FORM OF CONTRACT OF CRUDE RESIN Lot No. 7 to 10/2001 Value of the Deed Rs. 3,90,000.00 Rupees Three Lakh, Ninety Thousand Only This indenture made this 24th day of March 2001 between the Governor of the Uttaranchal hereinafter called Seller of the one part and Shri Khurana Brothers, Rishikesh hereinafter called the Buyer which expression includes its executors, administrators, successors and assigns of the other part witnessed as follows The seller in companysiderations of payment to be made by the buyer as hereinafter provided at the rate of 1950.00 Rupees One Thousand Nine Hundred Fifty Only per quintal calculated at per quintal naked without companytainer and in addition the buyer shall have to pay sale tax on the total sale value of the resin 79 or the rate applicable at the time of sale subject to the following terms and companyditions Approximately 1160 One Thousand One Hundred Sixty tins 200 two Hundred quintals of crude resin net weight will be delivered at resin depot Sultan Nagri. The quantity may increase or decrease by 10 the buyer will have to accept the quantity made available by the seller. The weight of resin will be the same as has been recorded in the books of the seller. The seller reserves the right to reject the claim of the purchaser for weighment at the time of taking delivery. The resin sold will remain at purchasers risk from date of acceptance of his bid and the seller will number be responsible for any loss and damage which may occur thereto from any cause whatsoever. All the resin will have to be removed by the purchaser within 60 days of the date of approval of the sale. It will be removed in number more than 60 installments as follows Within Days of approval of sale. Within Days of approval of sale. Within Days of approval of sale. Within Days of approval of sale. The purchaser can remove resin only with the written permission of the Divisional Forest Officer, Nainital Forest Division, Nainital and on payment is advance of the full companyt and sale tax of resin. The seller does number take any responsibility for the quality of resin companytained in the tins and will number give any resin in exchange. The amount of sale price of the lot calculated on the basis of per quintal bid at the time of auction shall be payable by the buyer irrespective of the fact whether he lifts the material or number. Any resin or tin left within the depot after the last date of lifting shall vest in the Govt. and shall be companyfiscated and refund in lieu of such resin or tins shall be due to the buyer. No crude resin will be exported by the buyer from the resin depot specified in clause I accept by such routes and via such chaukies as may be decided upon and recorded in written by the Forest Office. The resin tins may be companynted and weighted by any Forest Officer at any time during transit. The buyer shall furnish the Forest Officer in writing with the names of all the agents and servants it proposes employ for it before they are employed and the Forest Officer shall be at liberty to forbid the employment of any person whom he may companysider undesirable. The buyer shall number drag the resin tins from the Sultan Nagri Depot. In the event of a breach of any of the companyditions of this indenture by the buyer or by agents or servants the M s. Khurana Brothers, Rishikesh shall be liable to pay of fine which may extend to fifty rupees at the discretion of the Forest Officer for each such breach. In the event of breach of this agreement or of any forest law or rules the export of the buyer may be stopped under the orders of the Forest Office, pending any investigation and decision of the case. Nothing in this indenture shall be held to exempt the buyer or its agents or servants from liability to criminal proceedings for breach of the forest laws and rules companymitted by it or them. In the event of dispute companycerning any of the terms of this indenture the same shall be referred to the sole arbitrator appointed by the Chief Conservator of Forest, Uttaranchal whose decision shall be final and binding the parties. The seller has received from the buyer the sum of Rupees 39,000.00 Thirty Nine thousand only receipt of which is hereby acknowledged as security for the due fulfillment of all the companyenants herein before companytained. The Forest Officer in empowered to deduct from such security money any sum, which may be due from the buyer whether in respect of any of the price payable by it or any fine or liability incurred by it under the provision of this indenture. The security money or such balance thereof as may be after making the deductions aforementioned will be returned to the buyer on the expiration or sooner determination of this agreement as after the Forest Officer shall have satisfied himself that all the terms of this indenture have been duly and faithfully carried out by the buyer. The stamp duty payable on this deed and the fee for registration of this deed shall be borne by the buyer. Any tax imposed by any law on the present sale shall be payable by the buyer. Any sum of money, either of sale companysideration or fine or other kind of due, payable by the buyer under this deed to the seller shall be recoverable as arrears of land revenue. In witness where of the Conservator of Forest, Southern Kumaon Circle, Uttaranchal on behalf of the Governor of the Uttaranchal and the M s. Khurana Brothers, Gopal Mandir, Rishikesh aforesaid have there to set the in signature. Sd - BUYER CONSERVATOR OF FOREST Khurana Brothers The letter issued by the Divisional Forest Officer to the writ petitioner on April 7, 2001 is as follows Office of Divisional Forest Officer Nainital Forest Division Nainital Letter No. 4566/39-8.9 Dated Nainital 7-4-2001 To, Khurana Brothers Rishikesh Gopal Mandir Rishikesh Subject Acceptance of Lisa lots purchased on 24-3-2001 in the public auction held at Bhuwali Forest Rest House. Ref Letter No. 2955/39-8 Dated 31-0-2001 of forest companyservator, southern Kumaun circle, Uttaranchal Nainital. Sir, The Bid given by you in the public auction held at Bhuwali Forest Rest House on 24-3-2001 for the following resin lot is accepted in your name. Name Lot No. Resin BID Total Name of PURCHASED Accepted price in of Division Tin No. Quantity Per QTL. rupees Depot In rupees from In where Quintal is to be lifted 1 2 3 4 5 6 7 East 314 to 1740 295 1956/- 586800 Sultan Alimorah 319/2001 300 Nagri You are therefore to arrange for lifting of aforesaid resin within 60 days of the date of issuance of the letter after having the following companyditions of auction numberice companypleted by depositing in advance with the Depot, Sultan Nagri Kathgodam. Submitting challan of the total amount of purchased resin in favour of companycerned Divisional Forest officer. Submitting certified the photocopy of certificate of registration with department as required for registration in accordance with section 10 of Uttar Pradesh Rosin and other Forest produce Trade Regulation Act, 1976. Payment of total price of Rosin Trade tax at the prevailing rates at the date of auction shall be companypulsory prior to lifting the resin. The details of resin obtained from all sources along with details companycerning utilization fuel and further details of payment of Trade tax on the products manufactured from previously obtained rosin prior to lifting the rosin be submitted with Depot officer Rosin Depot. Stamp Duty shall be payable on such purchase as per rules and Government order. The companytribution for District Board at the rate of Rs. 5/- per quintal on the purchased rosin shall be payable. Prescribed Income tax and surcharge according to rules shall be paid. Sd - Divisional Forest Officer Nainital Forest Division The short question that arises for companysideration is whether the above companytract of sale for crude resin amounts to companyveyance as defined under Section 2 10 of the Indian Stamp Act, 1899 for short, the Stamp Act and, if answer is in the affirmative, whether stamp duty is chargeable thereon. In order to answer the aforesaid question, the true and real meaning of the document needs to be ascertained. When we look at the companytract, it would be seen that in companysideration of the price stated in the companytract, the State Government agreed to deliver the specified quantity of the crude resin to the writ petitioner purchaser . The parties agreed that quantity may increase or decrease by 10 and the resin will have to be removed by the purchaser within 60 days from the date of approval of sale and it will number be removed in more than 60 installments. As per the terms of the companytract, the purchaser was required to pay the amount of sale price irrespective of the fact whether the companytracted quantity of resin was lifted by it or number. By a subsequent companymunication dated April 7, 2001, the purchaser was informed of the acceptance of the bid for the stated resin lot s in its favour and it was asked to arrange for lifting of the same within 60 days of the issuance of that letter. Section 4 of the Sale of Goods Act, 1930 reads as follows S.4. Sale and agreement to sell. - 1 A companytract of sale of goods is a companytract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price. There may be a companytract of sale between one part-owner and another. A companytract of sale may be absolute or companyditional. Where under a companytract of sale the property in the goods is transferred from the seller to the buyer, the companytract is called a sale, but where the transfer of the property in the goods is to take place at a future time or subject to some companydition thereafter to be fulfilled, the companytract is called an agreement to sell. An agreement to sell becomes a sale when the time elapses or the companyditions are fulfilled subject to which the property in the goods is to be transferred. The essence of sale is the transfer of the property in a thing from one person to another for a price. As per Section 4, the companytract of sale includes an agreement to sell. It is number necessary that companytract of sale must be absolute. It may be companyditional as well. The essential feature that distinguishes the companytract of sale from an agreement to sell is that in a companytract of sale the property in the goods is transferred from the seller to the buyer immediately whereas in an agreement to sell property is transferred on a future date dates. An agreement to sell becomes a sale on fulfillment of the companyditions or when the time provided in the agreement elapses. Section 2 10 of the Stamp Act defines companyveyance as follows S.2 10 . - Conveyance.--Conveyance includes a companyveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos, and which is number otherwise specifically provided for by Schedule I, Schedule I-A or Schedule I- B, as the case may be Explanation Section 2 14 as was existing at the relevant time prior to amendment vide U.P. Act 38 of 2001 reads as follows S. 2 14 . -- instrument includes every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded. Section 3 is the charging Section. To the extent it is relevant, it reads as follows S.3. Instruments chargeable with duty. - Subject to the provisions of this Act and the exemptions companytained in Schedule I, the following instruments shall be chargeable with duty of the amount indicated in that Schedule as the proper duty therefor, respectively, that is to say-- a b . . . . . . . . . . c Provided that, except as otherwise expressly provided in this Act, and numberwithstanding anything companytained in Clause a , b or c of this section, or in Schedule I or I-A, the following instruments shall, subject to the exemptions companytained in Schedule I-A or I-B, be chargeable with duty of the amount indicated in Schedule I-A or I-B or as the proper duty therefore, respectively, that is to say- aa every instrument mentioned in Schedule I-A or I- B, which, number having been previously executed by any person, was executed in Uttar Pradesh i in the case of instruments mentioned in Schedule I-B, on or after the date on which the U.P. Stamp Amendment act, 1952 companyes into force bb every instrument mentioned in Schedule I-A or I- B, which, number having been previously executed by any person, was executed out of Uttar Pradesh i in the case of instruments mentioned in Schedule I-B, on or after the date on which the U.P. Stamp Amendment Act, 1952 companyes into force and relates to any property situated, or any matter or thing done or to be done in Uttar Pradesh, and is received in Uttar Pradesh Provided also that numberduty shall be chargeable in respect of i ii Explanation.--Where the amount of duty prescribed in Schedule I-B companytains any fraction of a rupee, below twenty five paise, or above twenty five paise but below fifty paise, or above fifty paise but below seventy five paise, or above seventy five paise but below one rupee, the proper duty shall be an amount rounded off to the next higher quarter of a rupee, as hereinafter appearing in the said Schedule. Schedule I -B appended to the Stamp Act provides for the rates of stamp duty in respect of instruments described thereunder. Article 23 thereof provides for rate of stamp duty on the companyveyance as defined by Section 2 10 which are number exempted under Article 62. Description of instrument Proper stamp duty Conveyance - as defined by Section 2 10 number being a Transfer charged or exempted under No. 62 - a . . . . . . . . If relating to moveable property - See item 136 Appendix II where the amount or value of the companysideration of such Twenty rupees companyveyance, as set forth therein, does number exceed Rs.1000 and for every Rs.1000 or part thereof in excess of Twenty rupees Rs.1,000 Exemption Assignment of a companyy-right for musical works by resident of or first published in India Explanation For the purposes of this Article, in the case of an agreement to sell an immovable property, where possession is delivered before the execution, or at the time of execution, or is agreed to be delivered without executing the companyveyance, the agreement shall be deemed to be a companyveyance and stamp duty thereon shall be payable accordingly Provided that the provisions of Section 47-A shall, mutatis mutandis, apply to such agreement Provided further that when companyveyance in pursuance of such agreement is executed, the stamp duty paid on the agreement shall be adjusted towards the total duty payable on the companyveyance. The expression document is number defined in the Stamp Act. However, the General Clauses Act, 1897 defines document as under- S.3 18 . - document shall include any matter written, expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means which is intended to be used, or which may be used, for the purpose of recording that matter. Under Section 2 10 , inter alia, every document by which movable property is transferred is companyveyance. Does the companytract of sale for crude resin entered into between the parties amount to transfer of movable property? In our opinion, it does. In the companytract under companysideration, all essential companyditions of transfer of movable property are satisfied. By this document right in auctioned lot of crude resin has been created in favour of the writ petitioner. Correspondingly, the State Government is under obligation to deliver the quantity of crude resin specified in the document. Pertinently, clause 1 B provides that resin sold will remain at purchasers risk from the date of acceptance of its bid and seller will number be responsible for any loss and damage which may occur thereto from any cause whatsoever. The document read as a whole leaves numbermanner of doubt that property in the auctioned lot of crude resin vested in the purchaser as a result of the subject companytract and, thus amounts to transfer of movable property. Even if the document dated March 24, 2001 is treated as an agreement to sell, in view of the acceptance letter dated April 7, 2001 whereby the writ petitioner has been informed that public auction is accepted in its name and that it must arrange for lifting of the auctioned resin within 60 days from the issuance of this letter, it is very clear that the companytract of sale dated March 24, 2001 read with the letter dated April 7, 2001 amounts to companyveyance within the meaning of Section 2 10 and is chargeable to stamp duty under Article 23, Schedule I-B as admittedly there is numberexemption from payment of stamp duty in respect of such companyveyance under Article 62. It is true that the companytract document dated March 24, 2001 records the receipt of Rs.

K. MUKHERJEE This appeal under Section 379 of the companye of criminal procedure is directed against the judgment and order dated September 12, 1985 of the Madhya Pradesh High Court in Criminal Appeal number 1217 of 1982 whereby it set aside the acquittal of the five appellants of the offences under Sections 147, 302/149 and 307/149 of the Indian Penal Code recorded in their favour by the Additional Sessions Judge, Narsinghpur and companyvicted them thereunder. The appellants Sunil Kumar and his father Hargovind are residents of village Chichli within the Police State of Gotetoriya in the District of Narsinghpur where they own a rolling mill and the other three appellants are their casual employees. The deceased Dayashankar and his brother Ramesh Chandra P.W.I. also hailed from the same village and they earned their living from cultivation. According to the prosecution case the appellant Hargovind was trying to frocibly take over the land of the deceased and P.W.I. and threatening them that he would cut their hands and legs. Sometime before the incident with which we are companycerned in this appeal the cattle of Sunil Kumar and Hargovind had damaged the standing crops of the deceased and P.W.I. When P.W.I. protested a quarrel ensued in companyrse of which he was beaten up with shes by Hargovind and appellant Rafu Rafiq. On January 15, 1981 Hargovind and appellant Rafu made an attempt to kill the deceased and W.I but failed. Over that incident P.W.I lodged a companyplaint with police station. Again on May 30, 1981 P.W.I found that Hargovind had brought the other three appellants, who were all residents of Uttar Pradesh, to their village and apprehending that Hargovind might get them killed, the two brothers lodged a written report before the Superintendent of Police, Narsinghpur on June 13, 1981 Ext.P.I. seeking protection of their lives and properties. The police however turned a Bear bar to their companyplaints. The further prosecution case is that on July 30, 1981 at or about 9 A.M. the deceased and P.W.I went to their field for measuring the work done by their labourers as that was the day for payment to them. After the measurements, at or about 10.30 A.M. when they were returning home to fetch money for payment to those laborers and on the way had reached the lane in between the fields of Chhotelal Sahu and Dalchand the five appellants came from behind. Of them, Sunil Kumar and Suresh were carrying lathis, Hargovind a hockey stick and Nazim and Rafiq axes. Hargovind first gave a lathi blow on the head of P.W.I and he fell down. Thereafter Rafu and Nazim hacked him with their axes severing his left arm and left foot. All or them then attacked the deceased with their respective weapons in a similar fashion severing his right hand and right foot. Then they fled away. On hearing the cries of the victime, the laborers, who were working in the field of P.W.I came to the spot and seeing their companydition rushed to their house to inform Imratibai P.W.2 , mother of P.W.I and the deceased. On getting the information P.W.2 hurried to the spot and heard about the incident from P.W.I Dayashankar had, in the meantime, succumbed to his injuries. Yogendra kumar P.W.3 , a nephew of the deceased and P.W.I and some others of the village also roached there and to them also P.W.1 narrated the incident. P.W.3 then rushed for medical held but the doctors expressed their unwillingness to attend to the victims on the plea that as it was a medico legal case they companyld number do so without requisition from the police. P.W.3 then went to the village Post Office and reported the incident to the police over telephone. On getting the information inspector V.K. Saxena W.6 came to the site of the incident accompanied by Sub Inspector Mithilesh Tiwari PW 8 and other police personnel. Reaching there he recorded the companyplaint of P.W.1 Ext. P.2 and after forwarding it to the police station for registering a case thereupon sent P.W.1 to Gadarwara Hospital for treatment. He then held inquest upon the dead body of Dayashankar and despatched it for post-mortem examination. From the spot he seized the severed limbs of the two victims, some blood stained earth and the metal portion and the handle of an axe in presence of the witnesses. Dr. P.K. Budhisagar P.W. 13 , Asstt. Surgeon of Gadarwara Hospital, examined P.W.1 and finding his companydition critical sent an information to the police for recording his dying declaration. On receipt of such message the police requisitioned the services of the local magistrate who came to the hospital and recorded his statement Ext.D.2 . I. A.K. Bhandari P.W.12 , who took up the investigation of the case from P.W.6 arrested the appellants and pursuant to their respective statements seized a lathi and bush shirt which were blood stained from Nazim, one blood stained axe from the house of Hargovind, a hockey stick and a Hungi, both blood stained, from Suresh, blood stained Kurta and paijama from Hargovind and blood stained trousers, bush-shirt and baniyan from Sunil. P.W.12 prepared separate sealed packets in respect of those articles and went them to forensic Science Laboratory F.S.L for chemical examination. After receipt of the reports of F.S.L. and of the autopsy held on the dead body of Dayashankar by Dr. Dhan Singh P.W.4 , and on companypletion or investigation he submitted charge-sheet against the five appellants. The appellants pleaded number quilty to the charged and stated that they were falsely implicated. The appellant Rafiq took a plea of alibi also. In support of their respective cases the prosecution examined thirteen witnesses and defence one. That Dayashankar deceased was brutally murdered and W.I was mercilessly beaten up, stand proved by overwhelming evidence on record, Inspector V.K. Saxena W.6 testified that when he reached the site of the incident the found the dead body of Dayashankar in a bullock-cart and Ramesh P.W.1 lying on the ground nearby, with both of them having one of their legs and hands amputated. Under his directions S.I. Mithilesh Tiwari W.8 seized those severed parts, besides other articles found there P.W.6. Dr. Dhan Singh P.W.4 , who held autopsy on the dead body of Dayashankar on July 31, 1981, stated that he found the following injuries on his person Lecerated would 1 1/2 bone deep in the right parieto occipital region Lacerated wound 3/4 1/3 1/3 on the parietal region Incished wound 3 1/2 bone deep just left of the med line Lacerated wound 2 1/2 bone deep on the frontal region just right of mid line Bruise 2 1/2 1/2 just lateral of right eye brow with swelling in right temple 4 3 Abrasion 1 1/4 1/2 over the right shoulder Abrasion 1/2 1/2 on top of the right shoulder Bruise 4 1/2 1/2 on left forearm, close to olbow joint Incised would cutting whole thickness of the right forearm separating the hand from rest of the body. Ulna and radius cut in one plane slightly oblique-just above the wrist joint Bruise 3 2 on the right thigh Incised wound involving the whole thickness of the right leg just above ankle joint with skin flap cut in different directions suggesting more that one blows with sharp weighty object - chopping the right foot off from rest of the body. fibia and fibula bones cut in two different planes and Incised wound 1 3/4 1 bone deep on anterior aspect of left leg 3 above the ankle joint. Tibia cut 1/3rd deep. He opined that all the injuries were antemortem and injury Nos. 1,2,4,5,6,7,8 and 10 were caused by hard and blunt object while injuries number 3,9,11 and 12 were caused by sharp and heavy object. According to P.W.4 injuries No. 3,4,5,9 and 11 were individually and companylectively sufficient to cause death. He further opined that the incised wounds seen by him companyld be caused by a heavy sharp object like axe. Dr. P.K. Budhisagar P.W. 13 who examined P.W. 1 on July 30,1981 at or about 5 P.M. testified that he found the following injuries on his person Lacerated wound 3 1/2 bone deep over scalp, 3 behind mastoid Lacerated wound 1 1/4 bone deep, 1 1/2 above injury No.1 Lacerated wound 2 1/4 bone deep on the left side of midline and 1 above injury No.1 Lacerated wound 21/4 bone deep on mid line 1 above injury No.3 Lacerated wound 21/4 bone deep 1 1/2 above injury No. 4 Lacerated wound 4 x 1/4 x bone deep over mid line joining both traqus of the ears Lacerated wound 4 x 1/4 x bone deep, 1 1/2 above injury No.6 Left arm fully cut, below elbow muscles, nerves bone cut in oblique line form lateral to medial side 9. left leg cut at ankle joint lean cut 13 below tibial tuberosity oblique medical to lateral side. Tibial fibula and a tendons cut Incised wound 1 1/2 x 1/2 x 1/2 x 4 above right wrist on the antero lateral aspect Incised wound 2 x 1 x bone deep 1 above right wrist. Bone cut in the depth of wound. Gap is 3 deep including bone thickness Incised wound 3 x 2 x 2 x 2 above injury No. 11 muscle tendons cut and bone fractured and Incised wound 2 x 1 1/2 x 2, 1 1/2 above injury No. 12, muscle cut and bone fractured. He opined that the injuries found by him on the right arm, left log and left arm were caused by a heavy and sharp instrument like axe and wounds on scalp were caused by hard and blunt object like hockey stick. He further opined that all the injuries companylectively were sufficient to cause death if the patient was number treated in time. Considering the nature, number and extent or injuries inflicted on Dayashankar deceased and Ramesh P.W.1 there cannot be any manner of doubt that whoever caused those injuries are guilty of the offences or companymitting murder and attempting to companymit murder respectively. The next and crucial question that falls for our determination is whether the appellants are the authors of the above crimes as alleged by the prosecution. The main stay of the prosecution to prove this part of its case is, needless to say, Ramesh P.W.1 , who detailed the incident as well as the events leading thereto. To companyroborate his evidence the prosecution relied upon the fact that immediately after the assaults took place, he narrated the incident to his mother P.W.2 , and nephew W.3 who reached there. Besides, his statements, one made before Sh. V.K. Saxena, Inspector of Police P.W.6 , which was treated as the F.I.R Ext. P.2 and the other before the Magistrate, Ext. D/2 , which was then recorded as a dying declaration were pressed into service as companyroborative evidence. To prove that the ocular evidence of P.W.1 fitted in the with the injuries sustained by him and his brother the prosecution examined the two doctors referred to earlier. From the judgment of the trial Court we find that the principal reason which weighed which it for disbelieving the prosecution case altogether was the fact that in the message that Yogendra P.W.3 gave to the police regarding the incident, after having been apprised of the same by P.W.1 and which was recorded by the police in the station diary book Ex.P.17 , he did numberdisclose the names of the assailant. According to the trial Court if really P.W.I had disclosed the names of the assailants to P.W.J it was expected, in the fitness of things, that he would disclose those names in his telephonic message to the police. Such number disclose of the names according to the trial Court, companypletely belied the prosecution story that the appellants were the perpetrators of the crimes in question. The other related observation the trial Court made was that since the telephone message disclosed a companynizable offence and pursuant thereto the police had companye to the spot and started investigation, the statement that was made by P.W.I before the inspector of police P.W.6 was hit by Section 162 Cr.P.C. and companysequently, the prosecutions claim that the evidence of P.W.I was companyroborated by the said statement, being the FIR, companyld number be legally entertained. Another reason which weighed with the trial Court in disbelieving the prosecution case was that it did number examine any labourers or any other person who were working the field near the site of the incident to prove the incident and instead thereof relied upon the evidence of only two interested witnesses, namely, P.W.I was also discrepant. In reversing the judgment of the trial Court, the High Court held that the findings to the trial Court were perverse and against the evidence on record. According to the High Court the cryptic message that was given by P.W.3 over telephone is the police companyld number be treated as F.I.R., more particularly, when he testified that owing to disturbance in the telephone line he companyld number disclose the details of the incident and the statement given by P.W.I before P.W. Ext. P.2 was the F.I.R of the case. The High Court next observed that there was numberevidence on record to indicate that at the time the incident actually took place anybody was present so as to entitle the trial Court to draw an adverse presumption against the prosecution under Section 114 illustration q of the Evidence Act for number examination of material witnesses. The High Court lastly observed that the evidence of P.W.I, as companyroborated by W.2 and P.W.3, who came immediately after the occurrence, the F.I.R. and the medical evidence clearly proved the case of the prosecution. In drawing the above companyclusions the High Court also took numbere of the fact that only a few days prior to the incident the deceased and his brother had in their companyplaint before the police Ex.P1 categorically expressed their apprehension that their lives and properties were in jeopardy as these accused persons had openly given out that they would kill them after cutting them to pieces. This being a statutory appeal we have carefully gone through the entire evidence on record had the judgments of the learned Courts below. Our such exercise persuades us to unhesitatingly hold that the finding of the trial Court that the evidence of P.W.I is wholly unreliable is patently perverse. Considering the fact that except the two victims W.I and the deceased there was numberody else present at the time the assaults actually took place as the evidence on record clearly indicates there companyld number be any other witness to the incident. The question of presumption under Section 114 of the Evidence Act companyld have been drawn in the instant case only if the defence companyld have succeeded in proving that there were other persons present and had seen the incident and inspite thereof the prosecution, without any justifiable reason, withheld such witnesses. Coming number to the evidence led be the prosecution to companyroborate P.W.I. who detailed the entire prosecution case, Imarti Bai P.W.2 stated that on getting the news that Dayashankar was lying dead and Ramesh injured she rushed to the place and gave him some water as he was asking for the same. When she asked Ramesh as to how he sustained those injuries and Dayashankar died, he P.W.I detailed the entire incident including the names of the appellants as the assailants. The evidence of W.2 was disbelieved by the trial Court on the ground that she was examined by the Investigating Officer after one and a half months. This fact by itself should number, and companyld number, have been made a ground for disbelieving her for it is expected of a mother who gets information about the assaults on his sons to immediately rush to their help and ascertain the details of the assault. Judged in that companytext, if the Investigating Officer did number examine P.W.2 immediately after the incident it can only be said that it was a dereliction of duty on his part but such delayed examination by itself would number make the evidence of P.W.2 suspect, particularly when she was a natural and probable witness and was readily available for examination by the investigating Agency. Equally important in the instant case is the evidence of P.W.3, who testified that when he came to the spot and talked to Ramesh who was lying injured he told him about the incident as also the names of the assailants. As already numbericed it was P.W.3 who gave information to the police about the incident over telephone. In his testimony he said that when he companytacted the police from the sub post office over telephone he get a reply that they companyld number been properly. However he companyld succeed only in companymunicating that there was a fight in which hands and legs of two persons were cut. In cross examination he admitted that he did number toll the names of the accused persons over phone but explained that owing to some disturbance on the telephone line he companyld number properly companymunicate. To disprove the above explanation of P.W.3 the defence examined Harishankar Dubey D.W.1 , the then Assistant Postmaster of the sub post office. He testified that on July 13, 1981 on Yogendra came to the post office and asked him to book a telephone call to Gotetoriya Police Station. He D.W.1 asked him as to why he wanted to book a phone and in reply to its query told that he wanted to give a message that a person was murdered and another seriously injured. When he asked him as to who were the assailant Yogendra told him that he did number know their names. Relying upon the above evidence of D.W.1 the trial Court held that the prosecution version that the appellants were the assailants companyld number be accepted. In disbelieving D.W.1 the High Court, however, pointed out that he figured as a witness for the prosecution and only when he was given up as hostile to it, that the defence examined him. According to the High Court even though in his examination in chief he stated that he companyld hear all that was being companyveyed by Yogendra over telephone, in cross-examination he admitted that he companyld number hear anything. Besides the above grounds, the other reason which persuades us to hold that he was an unreliable witness is , that it being numberpart of his duty to ascertain why P.W.3 wanted to book a call or what message he wanted to companyvey, his claim that he was present at the time P.W.3 talked over the phone is number tenable. We hasten to add that even if we proceed on the assumption that Yogendra did number disclose the names of the assailants over the phone it would number in any way affect the testimony of P.W.1 of companyroboration or such testimony by P.W.3, for P.W.1 number only stated that he disclosed the names of the assailant to P.W.3 but P.W.3 also asserted that P.W.1 did tell the names of the assailants to him. In other words, the evidence of P.W.1 that at the earliest opportunity he disclosed the names of the appellants as his assailants to P.W.3 was companyroborated by W.3. While on this point we wish to mention however that the High Court erred in number treating the telephonic information that P.W.3 gave to the police station as the F.I.R. It is number disputed that P.W.3 did give an information to the police station wherein he stated that one person had been killed and another person had been dismembered and it was recorded accordingly in the daily diary book Ex.P/17 . The same entry discloses, numberwithstanding the absence of the names of the assailants therein, a companynizable offence an indeed it is on the basis thereof that P.W.6 initially started their investigation. Ext.P/17 will therefore be the I.R and the statement of Ramesh Ext.P.2 which was recorded by him in companyrse of the investigation is to treated as one recorded under Section 161 Cr.P.C. This companyclusion of ours, however, does number in any way affect the merits of the prosecution case for we find that immediately after P.W.1 was taken to the hospital his statement was recorded by a recorded as a dying declaration which, companysequent upon his survival, is to be treated only as a statement recorded under Section 164 Cr.P.C. and can be used for companyroboration or companytradiction. This statement recorded by the Magistrate at the earliest available opportunity clearly discloses the substratum of the prosecution case including the names of the appellants as the assailants and there is number an iota of materials on record to show that this was the upshot of his tutoring. On the companytrary, this statement was made at a point of time when P.W.1 was in a critical companydition and it is difficult to believe that he would falsely implicate the appellants leaving aside the real culprits. In view of the observation of the trial Court that his evidence was discrepant we carefully looked into the same and found that there was only some minor inconsequential companytradictions which did number at all impair his evidence.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1349 of 1982. From the judgment and order dated the 8.3.1982 of the Jammu Kashmir High Court in W.P. No. 668 of 1981. AND Civil Appeal No. 1997 of 1982. Appeal by special leave from the judgment and order dated the 8th March, 1982 of the Jammu Kashmir High Court in W.P. No. 668 of 1982. AND Writ Petitions Nos. 2186-82 of 1982. Under article 32 of the Constitution of India K. Venugopal S.P. Gupta, R. Satish, E.C. Aggarwala and Krishnamanan, for the appellants in C.A. 1349/82 for the Petitioners in WP. Nos. 2186-89 of 1982. R. Mridul and Vimal Dave for the Respondents in Civil Appeals. N. Kacker and Altaf Ahmed, for the Respondents in Ps. N. Kackar and Altaf Ahmed for the Appellant in C.A. 1997/82. The following Judgments were delivered AMARENDRA NATH SEN, J. Four Petitioners belonging to the cadre of Subordinate Judicial Service in the State of Jammu Kashmir and whose names were recommended by the High Court for appointment as District Judges, filed a Writ Petition in the High Court of Jammu Kashmir Writ Petition No. 668 of 1982 challenging the validity of appointment as District Judges of the Respondents Nos. 3,4,5 and 6 made by the Governor of the State. In the said Writ Petitions had made the State through the Chief Secretary, Respondent No, 1, the High Court of Jammu Kashmir through the Registrar, the Respondent No. 2 and the four persons who were appointed District Judges by the Governor, as Respondents 3, 4, 5, and A learned Single Judge of the High Court directed numberice to issue to Respondents Nos 1 to 2 in the first Instance to show cause as to why the Petition should number be admitted and the Learned Single Judge further directed that the matter should be listed before a larger Bench for admission. The Learned Single Judge also granted stay of the operation of the order appointing the Respondents Nos. 3 to 6 pending disposal of the admission matter. The matter came up before a Division Bench on 27.2.1982 for admission of the petition and at that time a question was raised as to whether it would be proper for the High Court to hear the Writ Petition since the Court on the administrative side had already taken a decision which forms the basis of the claim of the petitioners in the Writ Petition. On 27.2.1982 after the arguments had been heard at length, the matter was adjourned to 8.3.1982 for further arguments. It appears that on 8.3.1982 when the matter came up for further arguments learned Counsel for the Respondents submitted that in fairness and on the grounds of judicial propriety, the High Court might number hear the Writ Petition. It appears that it was submitted by the learned companynsel for the Petitioners that they would have numberobjection to that companyrse being adopted provided a certificate of fitness to file an appeal in the Supreme Court was granted in their favour. It appears that the learned Counsel for the Respondents did number have any objection to the grant of this prayer of the Petitioners. In view of the agreement between the learned Counsel for the parties, the High Court declined to hear the petition on the ground of judicial propriety and vacated the order for stay passed on 27.11.1981 and the High Court granted a certificate of fitness to the Petitioners to file an appeal in the Supreme Court, holding that the point involved in the Writ Petition relating to the interpretation of Art. 109 of the Constitution of Jammu Kashmir, raises a substantial question of law of general public importance and the case was a fit one in which a certificate of fitness should be granted, Civil Appeal No. 1349 of 1982 is the Appeal filed by the Appellants on the strength of the certificate granted by the High Court. Against the Judgment and Order of the High Court dated 8.3.1982 granting certificate of fitness for filing an appeal in this Court after declining to hear the Writ Petition and after vacating the stay, the State obtained Special Leave from this Court to prefer an appeal and Civil Appeal No. 1997 of 1982 has been filed by the State with leave of this Court against this judgment and Order of the High Court dated 8.3.1982. The Writ Petitioners in the High Court who are also the Appellants in Civil Appeal No. 1349 of 1982 in this Court by certificate granted by the High Court, have filed a Writ Petition in this Court under Art. 32 of the Constitution substantially for the same reliefs claimed in the Writ Petition in the High Court and number forming the subjectmatter of Civil Appeal No. 1349 of 1982 in this Court. In the Writ Petition filed in this Court the Petitioners have prayed for the issue of a Writ of Certiorari or in the nature thereof, quashing the order of appointment of respondents number. 3 to 6 as District Judges, for a Writ, Order or Direction in the nature of quo warranto quashing the appointment of Respondents Nos. 3 to 6 as District Judges and a Writ of Mandamus directing the State to appoint the Petitioners as District and Sessions Judges in accordance with the recommendations made by the High Court of Jammu Kashmir. The Writ Petition filed by the Petitioners bears writ Petition Nos. 2186 to 2189 of 1982. This judgment will dispose of all the three matters. As certain preliminary objections have been raised, we companysider it proper to deal with the same in the first place. An objection has been taken with regard to the maintainability of Civil Appeal No. 1349 of 1982 filed in this Court with certificate granted by the High Court. It has been urged that this appeal is incompetent as the certificate granted by the High Court is invalid and improper. The argument is that the High Court in its judgment has number decided any point raised in the Writ Petition and the High Court has declined to deal with the matter on the ground of judicial propriety. It is companymented that the only decision of the High Court is the refusal on the part of the High Court to hear the Writ Petition on the ground of judicial propriety and this decision cannot be the subject matter of a certificate for fitness for filing an appeal in the Supreme Court. It is on this ground that the State obtained Special Leave from this Court against the judgment of the High Court and Civil Appeal No. 1997 of 1982 has been filed by the State with leave granted by this Court. It is, numberdoubt, true that the High Court did number deal with the Writ Petition on its merits as it had been submitted before the High Court on behalf of the Respondents that the High Court should number hear the Writ Petition on the ground of judicial propriety, because the decision taken by the High Court on the administrative side forms the basis of the claim of the Petitioners in the Writ Petition and the Petitioners were agreeable to the companyrse being adopted by the High Court, provided certificate of fitness to file an appeal in the Supreme Court was granted in their favour. The judgment of the High Court records that the companynsel for the Respondents had stated that the respondents had numberobjection to the grant of the said prayer of the Petitioners and the judgment further records that in view of the agreement between the companynsel for the parties, the Court granted certificate of fitness to the Petitioners to file an appeal in the Supreme Court while declining to hear the petition on the ground of judicial propriety. It is true that the High Court while granting the certificate had number gone into the merits of the writ petition, as the High Court had declined to hear the petition on the ground of judicial propriety. It is, however, to be numbered that the High Court had adopted the said companyrse as the said companyrse was agreed upon by the learned companynsel for the parties. It may also be numbered that the High Court in its judgment has pointed out that the interpretation of Art. 109 of the Constitution of Jammu Kashmir is involved in the writ petition and the said question is a substantial question of law of general public importance. It appears to us to be rather unfortunate that the State should adopt this attitude and should raise these objections particularly after having agreed before the High Court to the certificate being granted. It appears that in the peculiar facts and circumstances of this case, the High Court which found it embarrassing to deal with the writ petition particularly in view of the objection raised on behalf of the State on the ground of judicial propriety, granted certificate with the agreement of the parties and declined to hear the matter. We have numberdoubt in our mind that the question raised in the writ petition is a substantial question of law of general public importance. If on the ground of any technicality, the certificate granted by the High Court can be said to be number a proper one, this Court can always grant special leave in a proper case which deserves to be companysidered by this Court. We may further numbere that the High Court while declining to hear the matter on the ground of judicial propriety had also vacated the stay which had been earlier granted by the High Court. The real effect of the order amounts to a virtual refusal to entertain the writ petition. The certificate granted by a High Court in any case after declining to hear the same on any ground may number be appropriate and may number be held to be valid and may have to be revoked. The present case, however, is a fit case, particularly in view of the peculiar facts and circumstances of this case and the important question of law of general public importance involved, where this Court should grant special leave to the Petitioners. Accordingly, we revoke the certificate granted by the High Court and we grant special leave to the Petitioners for the filing of this appeal. We treat this appeal as one filed with leave granted by this Court. The other preliminary objection is with regard to the maintainability of the Writ Petition filed by the Petitioners under Art. 32 of the Constitution. It is urged that there is numberviolation of fundamental rights of the Petitioners and the jurisdiction of this Court under Art. 32 of the Constitution is number, therefore, attracted and the writ petition filed in this Court is number maintainable. It has, however, been pointed out on behalf of the Petitioners that the violation of Arts. 14 and 16 of the Constitution has been alleged and the Writ Petition under Art. 32 is, therefore, companypetent. The subject matter of the writ petition is absolutely the same as that of the appeal No. 1349 of 1982 and identical questions are involved in these two proceedings. As we have granted special leave to the Petitioners in Civil Appeal No. 1349 of 1982, the merits of the case have in any event to be decided. The question of maintainability of the writ petition involving the very same questions becomes purely academic, The preliminary objections are accordingly disposed of. We number proceed to deal with the case on its merits. The validity of the appointment of respondents 3, 4, 5 and 6 as District Judges is the subject matter of challenge in the writ petition filed in the High Court and also in this Court. Mr. Venugopal, learned companynsel appearing on behalf of the appellants who filed the writ petition in the High Court and who have also filed the writ petition in this Court, have urged two main grounds in support of their companytention that the appointment of respondents number. 3, 4, 5 and 6 are illegal and invalid. The first ground of attack is that on a proper companysideration of Art. 109 and Art. 111 of the Constitution of Jammu and Kashmir, the Governor does number have any power to appoint District Judges from the cadre of Subordinate Judges of the State and this power is vested in the High Court. The second ground of attack is that even if it be held on a companysideration of the aforesaid Articles that the Governor is the authority companypetent to make the appointment, the appointment must be made by the Governor in companysultation with the High Court and, as in the instant case, the appointments have been made without any companysultation with the High Court, the appointments must be held to be in breach of the companystitutional provisions and, therefore, illegal and invalid. Mr. Venugopal has drawn our attention to Art. 109 and Art. 111 of the Constitution of Jammu and Kashmir. The said two Articles read as follows- Appointment of district Judges. 1 Appointment of persons to be, and the posting and promotion of district Judges in the State shall be made by the Governor in companysultation with the High Court. A person number already in the service of the State shall only be eligible to be appointed a district Judge if he has been for number less than seven years an advocate or pleader and is recommended by the High Court for appointment. Control over subordinate companyrts-The companytrol over district companyrts and companyrts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of the State and holding any post inferior to the post of district judge shall be vested in the High Court, but numberhing in this section shall be companystrued as taking away from any such person any right of appeal which he may have under the law regulating the companyditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the companyditions of his service prescribed under such law. Mr. Venugopal has rightly pointed out that the aforesaid two Articles of the Constitution of Jammu and Kashmir companyrespond to Art. 233 and Art. 235 of the Constitution of India. Mr. Venugopal has fairly submitted that though the aforesaid two Articles 109 and 111 of the Constitution of Jammu Kashmir have number companye up for companysideration in any particular decision, the companyresponding two articles in the Constitution of India have been companysidered and interpreted in a number of decisions of this Court and the view that has been expressed by this Court on the interpretation of Arts. 233 and 235 of the Constitution of India is companytrary to the view he wants us number to accept. Mr. Venugopal has submitted that the view that has been expressed by this Court in the earlier decision should be reconsidered in the interest of judicial administration and for safeguarding the independence of the judiciary. It is his submission that when a judicial officer in the category of subordinate Judges is promoted to the category of District Judges and becomes a District Judge, the Officer companycerned is so appointed as District Judge by promotion. Such appointment by promotion, according to Mr. Venugopal, clearly companyes within Art. 235 of the Constitution of India which deals with companytrol over subordinate companyrts and provides- The companytrol over district companyrts and companyrts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but numberhing in this article shall be companystrued as taking away from any such person any right of appeal which he may have under the law regulating the companyditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the companyditions of his service prescribed under such law. Mr. Venugopal has also drawn our attention to Art. 233 which companyresponds to Art. 109 of the Constitution of Jammu Kashmir. Art. 233 reads as follows Appointment of persons to be, and the posting and promotion of, district Judges in any State shall be made by the Governor of the State in companysultation with the High Court exercising jurisdiction in relation to such State. A person number already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for number less than seven years an advocate or a pleader and is recommended by the High Court for appointment. Mr. Venugopal argues that Art. 233 is intended to govern the appointment of persons to the District Judges in any State and the posting and promotion of District Judges. It is his argument that Art. 233 does number deal with the case of promotion of subordinate Judges to the post of a District Judge and the promotion of person belonging to the judicial service of the State and holding any post inferior to the post of a District Judge is vested in the High Court by virtue of the provisions companytained in Art. 235 of the Constitution of India which companyresponds to Art. 111 of the Constitution of Jammu Kashmir. It is to be numbered that in the case of State of Assam and Anr. v. Kuseswar Saikia and ors. 1 this Court had to deal with a similar situation and companysider similar arguments. The State of Assam and the Legal Secretary to the Govt. of Assam filed an appeal in this Court against the judgment and order of the High Court of Assam, challenging a writ of quo warranto issued by the High Court against Upendra Nath Rajakhowa, District and Sessions Judge, Darrang at Tejpur, declaring that he was number entitled to hold that office. The writ was issued by the High Court at the instance of Respondents Nos. 1, 2, 3 in the appeal before the Supreme Court and these Respondents on companyviction by Upendra Nath Rajakhowa in a Sessions Trial challenged their companyviction inter alia on the ground that Shri Rajakhowa was number entitled to hold the post of District and Sessions Judge, Darrang as his appointment as District Judge was invalid. The High Court held that the appointment of Rajakhowa as District and Sessions Judge was void because the Governor had numberpower to make the appointment under Article 233 of the Constitution and Shri Rajakhowa companyld only be promoted by the High Court under Article 235. According to the High Court, this was a case of promotion of a person belonging to the judicial service of the State and the High Court was the authority to make the promotion under Article 235. This view of the High Court was negatived by this Court and this Court allowed the appeal and held at pp. 931-33 Chapter VI of Part VI of the Constitution deals with Subordinate Courts. The history of this Chapter and why judicial services came to be provided for separate from other services has been discussed in The State of West Bengal v. Nripendra Nath Bagchi 1 . This service was provided for separately to make the office of a District Judge companypletely free of executive companytrol. The Chapter companytains six articles 233 to 237 . We are number companycerned with Art. 237 in the present case. Article 235 vests in the High Court the companytrol over District Courts and Courts subordinate thereto, including the posting and promotion and grant of leave to persons belonging to the judicial service of a State and holding any post inferior to the post of District Judge. By reason of the definitions given in Art. 236 the expression judicial service means a service companysisting exclusively of persons intended to fill the post of District Judge and other Civil Judicial posts inferior to the District Judge, and the expression District Judge includes among others an additional District Judge and an additional Sessions Judge. The promotion of persons belonging to the judicial service but holding post inferior to a District Judge vests in the High Court. As the expression District Judge includes an Additional District Judge and an Additional Sessions Judge, they rank above those persons whose promotion is vested in the High Court under Art. 235. Therefore, the promotion of persons to be additional District Judge as Additional Sessions Judges is number vested in the High Court. That is the function of the Governor under Art. This follows from the language of the Article itself Appointments of persons to be, and the posting and promotion of, district Judges in any State shall be made by the Governor of the State in companysultation with the High Court exercising jurisdiction in relation to such State. The language seems to have given trouble to the High Court. The High Court holds 1 appointment to be a District Judge is to be made by the Governor in companysultation with the High Court vide Art. 233 and 2 promotion of a District Judge and number promotion to be a District Judge is also to be made by the Governor in companysultation with the High Court vide Art. 233. The High Court gives the example of selection grade posts in the Cadre of District Judges which according to it is a case of promotion of a District Judge. The reading of the article by the High Court is with respect, companytrary to the grammar and punctuation of the article. The learned Chief Justice seems to think that the expression promotion of governs District Judges ignoring the companyma that follows the word of. The article, if suitably expanded, reads as under Appointments of persons to be, and the posting and promotion of persons to be , District Judges etc. It means that appointment as well as promotion of persons to be District Judges is a matter for the Governor in companysultation with the High Court and the expression District Judge includes an additional District Judge and an additional Sessions Judge. It must be remembered that District Judges may be directly appointed or may be promoted from the subordinate ranks of the judiciary. The article is intended to take care of both. It companycerns initial appointment and initial promotion of persons to be either District Judges or any of the categories included in it. Further promotion of District Judges is a matter of companytrol of the High Court. What is said of District Judges here applies equally to additional District Judges and Additional Sessions Judges. Therefore, when the Governor appointed Rajkhowa an Additional District Judge, it companyld either be an appointment or a promotion under Article 233. If it was an appointment is was clearly a matter under Art. 233. If the numberification be treated as promotion of Rajkhowa from the junior service to the senior service it was a promotion of a person to be a District Judge which expression, as shown above, includes an Additional District Judge. In our opinion it was the latter. Thus there is numberdoubt that the appointment of Rajkhowa as Additional District Judge by the Governor was a promotion and was made under Art. 233, it companyld number be made under Art. 235 which deals with posts subordinate to a District Judge including an additional District Judge and an additional Sessions Judge. The High Court was in error in holding that the appointment of Rajkhowa to the position of an additional District Judge was invalid because the order was made by the Governor instead of the High Court. The appointment or promotion was perfectly valid and according to the companystitution. In the case of State of West Bengal v. Nripendra Nath Bagchi 1 , this Court while companysidering Arts. 233 and 235 of the Constitution elaborately traced the background and the history of the companystitutional provisions relating to the judiciary and this Court held at page 786 Articles 233 to 235 make a mention of two distinct powers, The first is power of appointments of persons, their postings and promotion and the other is power of companytrol. In the case of the District Judges, appointments of persons to be and posting and promotion are to be made by the Governor but the companytrol over the District Judge is of the High Court. The view that on proper companystruction of Article 233 and 235 the appropriate authority to make the appointment of District Judges is the Governor and number the High Court has also been reiterated by this Court in later decision of this Court. In a recent decision of this Court in the case of Chief Justice of Andhra Pradesh and Ors. v. V.A. Dixitulu and Ors. 1 5 Judges Bench of this Court held at page 46 Article 233 gives the High Court an effective voice in the appointment of District Judges. Clause 1 of the Article peremptorily requires that appointments of persons to be, and the posting and promotion of district judges shall be made by the Governor in companysultation with the High Court. Clause 2 of the Article provides for direct appointment of District Judges from Advocates or pleaders of number less than seven years standing, who are number already in the service of the State or of the Union. In the matter of such direct appointments, also, the Governor can act only on the recommendation of the High Court. Consultation with the High Court under Article 233 is number an empty formality. An appointment made in direct or indirect disobedience of this companystitutional mandate, would be invalid. Service which under clause 1 of Article 233 is the first source of recruitment of District Judges by promotion means the Judicial services as defined in Article, 236. In another recent decision of this Court in the case of Hari Datt Kainthla Anr. v. State of Himachal Pradesh and Ors. 2 this Court referred to earlier decision of this Court and observed at page 372 Article 233 companyfers power on the Governor of the State to appoint persons either by direct recruitment or by promotion from amongst those in the judicial service as District Judges We have to numbere that on a proper interpretation of Art. 233 and 235 of the Constitution this Court has companysistently held that the appointing authority is the Governor and this view has held the field for ever two decades. In our opinion this is the companyrect view on proper interpretation of the said articles and requires numberreconsideration. The argument of Mr. Venugopal that this interpretation will lead to the subservience of the judiciary and the independence of the judiciary will be undermined is number companyvincing, as the power to make the appointment companyferred on the Governor has to be exercised by him in companysultation with the High Court. This provision regarding exercise of power by the Governor in companysultation with the High Court is incorporated to safeguard the independence of the judiciary. We have earlier pointed out that Art. 109 and Art. 111 of the companystitution of Jammu Kashmir companyrespond to Art. 233 and 235 of the Constitution of India. In view of the interpretation of Art. 233 and 235 of the Constitution of India companysistently given by this Court, and with which we are in entire agreement, we hold that on a proper interpretation of Art. 109 and 111 of the Constitution of Jammu and Kashmir, the Governor is the authority companypetent to appoint the District Judges and the power of appointment of District Judges is number vested in the High Court. The first companytention of Mr. Venugopal cannot, therefore, be accepted and is negatived. We number proceed to deal with other companytentions of Mr.Venugopal, namely, even if the Governor be held to be the appointing authority the appointment by the Governor must be made in companysultation with the High Court and in the instant case, the appointments of the District Judges have number been made in companysultation with the High Court and the appointments must, therefore, be held to be invalid and illegal. It is necessary to state certain facts before we proceed to companysider this question. Four vacancies for the posts of District and Sessions Judges in the State became available for being filled up out of 12 Judicial Officers who were eligible for selection to the posts in questions. The Judicial Officers eligible for selection in the order of seniority are Shri Qazi Mohd. Muzaffar-Ud-Din Th. Pavitar Singh Shri Harcharan Singh Bahri Shri Sheikh Maqbool Hussain Shri G.L. Manhas Shri M.M. Gupta Shri H.N. Mehra Shri Jagmohan Gupta Shri Mohd Yasin Kawoosa Shri O.P. Sharma Shri Bashir-Ud-Din Shri Sudesh Kumar Gupta The High Court at a meeting of all the Judges held on 29.8.1981 companysidered the matter and the High Court taking into companysideration the merit and suitability of all the 12 eligible officers in the cadre of sub-judges, found the following Sub-Judges fit to be promoted as District and Sessions Judges against the available vacancies Shri M.M. Gupta Shri O.P. Sharma Shri Bashir-Ud-Din Shri Sudesh Kumar Gupta It is to be numbericed that the respective position of the aforesaid officers in the seniority list was 6, 10, 11 and On 31.8.1981 the Registrar of the High Court forwarded to the Government the recommendations of the High Court of the said four Judicial Officers for filling up the said for vacancies. The letter of the Registrar to the Law Secretary to the Government reads as follows Shri G.H. Nehvi, Secretary to Govt., Law Department, Jammu Kashmir Govt., Srinagar. No. 9245/GS dated 31.8.1981 Sub - Appointments and posting of District Sessions Judges Sir, There are four vacancies available in the cadre of District Sessions Judges two of them being available on account of deputation of Shri Ghulam Hassam Nehvi as Law Secretary and the creation of Additional District Sessions Judges Court at Ramben and, two others on account of the proposed retirement of M s. Mohammad Saleem Durrani and Mohammad Shaffi. The matter regarding replacement was companysidered in the meeting of the Court held on 28.8.1981. The Court companysidered the companyparative merit, ability and suitability of all the eligible officers in the cadre of Sub-Judges and found the following sub-judges fit to be promoted as District Sessions Judges against the available vacancies Shri M.M. Gupta at present Third Civil Subordinate Judge, Excise Magistrate , Jammu Shri O.P. Sharma, at present Sub Judge C.J.M. Jammu. Shri Bashir-ud-Din, at present, Sub-Judge, Special Judicial Mobile Magistrate, Traffic, Kashmir. Shri S.K. Gupta, at present, Sub-Judge Deputy Registrar, Jammu Wing , Jammu. The four therefore may be promoted as officiating District and Sessions Judges and that their postings may be ordered as under - Shri M.M. Gupta, Second Additional District Sessions Judge, Srinagar Single Member Tribunal for Anti-Corruption Cases, Kashmir Shri O.P. Sharma, District Sessions Judge, Rajouri Shri Bashir-ud-Din, Second Additional District Sessions Judge, Jammu Single Member Tribunal for Anti-Corruption cases, Jammu Province Shri S.K. Gupta, 1st Additional District and Sessions Judge, Srinagar Special Judge Anti Corruption, Kashmir I am, therefore, to request you kindly to obtain the sanction of the companypetent authority and companyvey the same to me as early as possible, Yours faithfully Sd - M. Rizvi Registrar 31.8.1981 In reply to the said letter of the Registrar, the Law Secretary addressed as follows - No. LD A 81/143 Sept. 15,1981, My dear Rizvi, Please refer to your letter No. 9245/GS dated 31.8.1981, regarding appointment and posting of District Sessions Judges. I have been directed to request you kindly to send us companyy of the resolution of the Honble High Court on the subject and also the Annual Confidential Reports for the last 5 years pertaining to the officers proposed for promotion and also those who are superseded. With regards, Yours Sd - H. Nehvi Shri S.M. Rizvi. Registrar, High Court of J K, Srinagar It appears that on 24.9.1981, the Under Secretary to the Government, Law Department, had sent a reminder to the Registrar of the High Court drawing his attention to the earlier letter dated 15.9.1981. On 5.10.81 the High Court sent a detailed letter to the Government justifying the selection made by the High Court setting out in detail the reasons for supersession of the senior Officers. In this long letter, running into 15 pages pp. 24-39 in paper book of C.A. No. 1997 of 1982 , the High Court made its companyments on all the officers who have been superseded. The High Court also forwarded a companyy of the resolution dated 29.8.1981. The companycluding portion of this long letter reads - I would, therefore, request you kindly to have the matter expedited and companymunicate the sanction of the Governor to the proposal already made as early as possible. The ACRs of the Officers companycerned for the years 1976-77, 1977-78 and 1978- 79 as also the companyrt resolution dated 29.8.1981 are enclosed herewith as desired. The resolution of the Full Court which was sent along with the letter may be set out LIST OF ITEMS DISCUSSED IN JUDGES MEETING HELD ON 29.8.1981 PRESENT The Honble Mufti Baha-Ud-Din Acting Chief Farooqui Justice The Honble Justice Dr. A.S. Anand Judge The Honble Mr. Justice I.K. Kotwal Judge The Honble Mr. Justice G.M. Mir Judge Preamble Resolved 3/-Appointment of Shri Ghulam 3/- After having companysi- Hassan Nehvi, Distt. Sessions dered the companyperative Judge, as Law Secretary and creamerit, ability and suiof Additional District Court at tability of all the officers in Ramber filling up of officers in the cadre the vacancy in this behalf of Sub-Judges we are of the opinion that the following sub- Judges are fit to be promoted as District Sessions Judges, against the available vacancies- Shri M.M. Gupta at present Third Civil Subordinate Judge Excise Magistrate, Jammu Shri O.P. Sharma, Sub-Judge, C.J.M. Jammu. Shri Bashir-Ud-Din, Sub-Judge Special Mobile Magistrate Traffic , Srinagar. Shri Sudesh Kumar Gupta, Sub-Judge Deputy Registrar, Jammu . We direct that recommendation shall be made to the Governor accordingly. We further direct that their place of postings shall be as follows- Shri M.M. Gupta, Second Addl. Dist. Judge Single Member Tribunal , Srinagar. Shri O.P. Sharma, District Sessions Judge, Rajouri. Shri Bashir-Ud-Din, 2nd Addl. District Sessions Judge, SM. T. Jammu Shri S.K. Gupta Ist Additional District and Sessions Judge Special Judge, Anti Corruption Srinagar. The further recommendation shall go to the Governor accordingly. Sd - Honble Acting Chief Justice Sd - Honble Justice Dr. A.S. Anand Sd - Honble Mr. Justice I.K. Kotwal Sd - Honble Mr. Justice G.M. Mir It appears that the meeting was attended by all the Judges of the High Court. On the 16th November, 1981, the Secretary to the Government, Law Department, addressed the following letter to the Registrar of the High Court- No. LD A 81/143 Dated 16.11.1981 The Registrar, High Court of J K, Jammu. Subject-Appointment of District and Sessions Judges. Sir, The Governor has been pleased to approve the promotion of the following Judicial Officers as District and Sessions Judges Qazi Mohammad Muzaffar-Ud-Din. Shri Pavitar Singh. S. Harcharan Singh Bahri. Sheikh Maqbool. The appointment of Qazi Mohammed Muzaffar-ud-Din will however, be deferred till he is cleared of the charges against him. A post for this purpose will be kept vacant and in case he is exonerated of the charges, his appointment will be given retrospective effect from the date of the issue of the orders regarding other three. Accordingly, a separate proposal may be sent by the High Court regarding the post of the promoted Officers. Yours faithfully. Sd - Secretary to Government Law Department. It appears that after the recommendations made by the High Court and the detailed reasons by the High Court for recommending the petitioners in supersession of the other officers had been for-warded to the State Government by the High Court, the State Cabinet companystituted a sub-Committee which had gone into the matter and had made its recommendations. It appears that on the basis of the recommendations made by the Sub-committee of the State Cabinet the letter of the Law Secretary dated 16th November 1981 to the Registrar of the High Court was addressed, informing the High Court of the Governors approval to the promotion of Respondents Nos. 3, 4, 5 and 6 as District and Sessions Judges. On receipt of the aforesaid companymunication from the Government dated 16.11.1981 the High Court on 24.11.1981, at a meeting of the Judges recorded the following minutes- Copy of extract from the Minutes of Judges meeting held on 24.11.1981 Preamble Resolved Law Secretarys letter 1 Considered.The posting No. LD A 81/143 dated of the Offices is pro- 16.11.1981 regarding posed as under - appointment of S Shri i Shri Pavitar Singh Qazi Mohd. Muzaffar- -District and Sessions UD-Din, Pavitar Singh, Judge, Leh-Kargil. S. Bahri and Sheikh ii S.Harcharan Singh Maqbool Hussain as Bahri-District District and Sessions Sessions Judge, JudgeSubmission of Rajouri. proposal regarding their iii Sheikh Maqbool Hussain posting. 1st Addl. District Sessions Judge, Srinagar. It shall be pointed out to the Government that the Communication of the posting shall number be deemed as companysultation with the Court in terms of Section 109 of the Constitution of Jammu and Kashmir in so far as the promotion of these officers is companycerned. Thereafter, on 26.11.1981, the following order was passed by the State Government- Government of Jammu and Kashmir Civil Secretariat Law Department Sub-Officiating appointment of District Sessions Judges. ORDER NO. 717-LD A of 1981 dated 26.11.1981 Sanction is accorded to the officiating appointing of the following sub-Judges as District and Sessions Judges in the scale of Rs. 1100-1600 against available vacancies with the posting as shown against each in companysultation with the Honble High Court- Shri Pavitar Singh - District and Sessions Judge, Leh-Kargil Shri Harchran Singh - District and Sessions Judge, Rajouri Sheikh Maqbool - Ist Additional District and Hussain Sessions Judge, Srinagar, Special Judge, Anti Corruption, Kashmir, Srinagar. By order of the Governor Sd - G.H. Nehvi Secretary to Government Law Department. Mr. Venugopal, learned companynsel for the Petitioners has argued that the High Court after due companysideration of the respective merits and suitability of all the officers, recommended the names of the petitioners for appointment as District Judges and thereafter at the request of the Government, the High Court had on 5.10.1981 forwarded to the Government detailed reasons and the High Court had also forwarded the companyfidential reports of the officers which were in the possession of the High Court. Mr. Venugopal points out that without any further reference to the High Court, the State Government on the basis of the report of a Cabinet Sub-Committee, chose number only ignore the recommendations made by the High Court but also to appoint respondents number. 3 to 6 without any kind of companysultation with the High Court about the appointment of the said respondents. Mr. Venugopal has argued that the State Government should as a rule accept the recommendations made by the High Court. He companytends that in any event the State Govt. cannot appoint any officer as District and Sessions Judge without companysultation with the High Court as companysultation with the High Court is the mandatory requirement of Art. 109 of the Constitution of Jammu and Kashmir which empowers the Governor to make the appointments in companysultation with the High Court. It is the companytention of Mr. Venugopal that this requirement of companysultation with the High Court companystitutes a salutary safeguard for preserving the independence of the judiciary. The companysultation envisaged must be full and effective and the point of view of the High Court in the matter of appointment has to be discussed, understood and properly appreciated and generally accepted. Mr. Venugopal has argued that the responsibility of judicial administration in the State basically rests on the High Court and the High Court for properly discharging its functions, must necessarily have proper judicial officers companypetent to discharge the duties to be entrusted to them. It is the argument of Mr. Venugopal that the High Court which has companyplete companytrol over its judicial officers has all relevant records of the officers and is in a proper position to understand and appreciate their performance and merits, must necessarily be the best Judge as to the suitability for promotion of these officers as District Judges. In this companynection Mr. Venugopal has referred to a number of decisions of this Court. Mr. Venugopal has submitted that in the instant case, in the matter of appointment of the Respondents Nos. 3, 4, 5 and 6 there has number been any kind of companysultation with the High Court and the said respondents have been appointed without any reference to the High Court and even without a formal intimation to the High Court that the recommendations made by the High Court were number acceptable and the State Governments was going to appoint Respondents Nos. 3 to 6 herein. It is the submission of Mr. Venugopal that these appointments must therefore, be held to be violative of the Constitution and must, therefore, be held to be invalid and illegal and should be quashed. Mr. Kacker, learned companynsel appearing on behalf of the State, has submitted that it is open to the State Government number to accept the recommendations of the High Court and the Governor may refuse to accept the recommendations made by the High Court with out assigning any reason whatsoever. Mr. Kackar argues that the requirement of the Constitution is that the appointment of District Judges by the Governor of the State must be made by him in companysultation with the High Court. It is his argument that the companysultation does number mean either companycurrence or recommendation and numberparticular form or procedure is also necessary to be followed in the matter of this companysultation. He submits that in the instant case, the State Government had asked for all the relevant materials which were in the possession of the High Court and the High Court had forwarded to the State Government the annual companyfidential reports and other materials and also the companyments of the High Court with regard to each and every candidate on the eligible list. Mr. Kacker companytends that companysideration by the State Government of all these materials placed by the High Court results in and amounts to companysultation within the meaning of the Article. Mr. Kacker submits that on a companysideration of all the materials issued by the High Court, the State Government decided number to accept the recommendations made by the High Court and decided to appoint Respondent Nos. 3, 4, 5 and 6 as District Judges. It is the submission of Mr. Kacker that there has been companysultation within the meaning of the Article and there has been sufficient companypliance with the Constitutional requirement as to companysultation. In the case of Chandra Mohan v. State of Uttar Pradesh, 1 this Court while companysidering Art. 233 of the Constitution observed after setting out Art. 233 1 at pp. 82-83 - We are assuming for the purpose of these appeals that the Governor under Art. 233 shall act on the advice of the Ministers. So the expression Governor used in the Judgment means Governor acting on the advice of the Ministers. The Constitutional mandate is clear. The exercise of the power of appointment by the Governor is companyditioned by his companysultation with the High Court, that is to say, he can only appoint a person to the post of District Judge in companysultation with the High Court. The object of companysultation is apparent. The High Court is expected to know better than the Governor in regard to the suitability or otherwise of a person, belonging either to the Judicial service or to the Bar, to be appointed as district judge. Therefore, a duty is enjoined on the Governor to make the appointment in companysultation with a body which is the appropriate authority to give advice to him. This mandate can be disobeyed by the Governor in two ways, namely, i by number companysulting the High Court at all, and ii by companysulting the High Court and also other persons. In one case he directly infringes the mandate of the Constitution and in the other he indirectly does so far his mind may be influenced by other persons number entitled to advise him. That this companystitutional mandate has both a negative and positive significance is made clear by the other provisions of the Constitution. Wherever the Constitution intended to provide more than one companysultant, it has said so See Arts. 124 2 and 217 1 Wherever the Constitution provided for companysultation of a single body or individual it said so See Art. 222, Art. 124 2 goes further and makes a distinction between persons who shall be companysulted and persons who may be companysulted. These provisions indicate that the duty to companysult is so integrated with the exercise of the power that the power can be exercised only in companysultation with the person or persons designated therein. To state it differently, if A is empowered to appoint B in companysultation with C he will number be exercising the power in the manner prescribed if he appoints B in companysultation with C and D. In the case of Chandramouleshwar Prasad v. Patna High Court Ors., 1 a 5 Judge Bench of this Court held at p. 674-675 companysultation with the High Court under Art. 233 is number an empty formality. So far as promotion of Officers to the cadre of District Judge is companycerned the High Court is best fitted to adjudge the claims and merits of persons to be companysidered for promotion. The Governor cannot discharge the function under Art. 233 if he makes an appointment of a persons without ascertaining the High Courts views in regard thereto It was strenuously companytended on behalf of the State of Bihar that the materials before the Court amply demonstrate that there had been companysultation with the High Court before the issue of the numberification of October 17, 1968. It was said that the High Court had given the Government its views in the matter the Government was posted with all the facts and there was companysultation sufficient for the purpose of Art. 233. We cannot accept this. Consultation or deliberation is number companyplete or effective before the parties thereto make their respective points of view known to other or others and discuss and examine the relative merits of their views. If one party makes a proposal to the other who has a companynter proposal in his mind which is number companymunicated to the proposer the direction to give effect to the companynter proposal without anything more, cannot be said to have been issued after companysultation. In our opinion, the numberification of October 17, 1968 was number in companypliance with Art. 233 of the Constitution. In the absence of companysultation the validity of the numberification of 17th October, 1968 cannot be sustained. In the case of High Court of Punjab and Haryana etc.v. State of Haryana, 2 the view expressed by this Court in Chanderamouleshwar prasads case supra numbered by another Constitution Bench of 5 Judges at p. 377 In Chandramouleshwar Prasad v. Patna High Court Ors. 1970 2 SCR 666 it was said that under Art. 233 the appointment of person to be District Judge rests with the Governor but he must make the appointment in companysultation with the High Court. The Governor should make up his mind after there has been deliberation with the High Court. The companysultation is number companyplete or effective before the parties thereto make there respective points of view known to the other or others. It was said that the Governor cannot discharge his functions under Article 233 if he makes the appointment of a person without ascertaining the points of view of the High Court with regard thereto. In the case of Chief Justice of Andhra Pradesh and Ors. V.A. Dixitulu and Ors. supra , the same view has been reiterated in the following observation at p. 46- Article 233 gives the High Court an effective voice in the appointment of District Judges. Clause 1 of the Article peremptorily requires that appointments of persons to be, and the posting and promotion of, district Judges shall be made by the Governor in companysultation with the High Court. Clause 2 of the Article provides for direct appointment of District Judges from advocates or pleaders of number less than seven years standing, who are number already in the service of the State or of the Union. In the matter of such direct appointments, also, the Governor can act only on the recommendation of the High Court. Consultation with the High Court under Art. 233 is number an empty formality. An appointment made in direct or indirect disobedience off his companystitutional mandate, would be invalid See Chandra Mohan v. State of U.P. 1 and Chandramouleshwar v. Patna High Court 2 Service which under clause 1 of Article 233 is the first source of recruitment of District Judges by promotion, means the judicial services as defined in Article 236. In a recent decision of this Court in Hari Datt Kainthla Anr. v. State of Himachal Pradesh Ors. supra this Court reaffirmed the views earlier expressed at p. 372- Article 233 companyfers power on the Governor of the State to appoint persons either by direct recruitment or by promotion from amongst those in the judicial service as District Judges but this power is hedged in with the companydition that it can be exercised by the Governor in companysultation with the High Court. In order to make this companysultation meaningful and purposive the Governor has to companysult High Court in respect of appointment of each person as Distt. Judge which includes an Additional Distt Judge and the opinion expressed by the High Court must be given full weight. Art. 235 invests companytrol over subordinate companyrts including the officers manning subordinate companyrts as well as the ministerial staff attached to such companyrts in the High Court. Therefore, when promotion is to be given to the post of District Judge from amongst those belonging to subordinate judicial service, the High Court unquestionably will be companypetent to decide whether person is fit for promotion and companysistent with its decision to recommend or number to recommend such person. The Governor who would be acting on the advice of the Minister would hardly be in a position to have intimate knowledge about the quality and qualification of such person for promotion. Similarly when a person is to be directly recruited as District Judge from the Bar the reasons for attaching full weight to the opinion of the High Court for its recommendation in case of subordinate judicial service would mutatis mutandis apply because the performance of a member of the Bar is better known to the High Court that the Minister or the Governor. In Candra Mohan v. State of Uttar Pradesh and Ors. supra at page 83, a Constitution Bench of the Court observed as under The Constitutional mandate is clear. The exercise of the power of appointment by the Governor is companyditioned by his companysultation with the High Court, that is to say, he can only appoint a person to the post of District Judge in companysultation with the High Court. The object of companysultation is apparent. The High Court is expected to know better than the Governor in regard to the suitability or otherwise of a person, belonging either to the judicial service or to the Bar, to be appointed as a district judge. Therefore, a duty is enjoined on the Governor to make the appointment in companysultation with a body which is the appropriate authority to give advice to him. This view was reaffirmed in Chandramouleshwar Prasad v. Patna High Court Ors. supra observing- The High Court is the body which is intimately familiar with the efficiency and quality of officers who are fit to be promoted as District Judges. The High Court alone knows their merits as also demerits. The facts which we have earlier set out establish that after the High Court had forwarded its recommendations and thereafter sent the detailed companyments alongwith a companyy of the resolution as requested by the Government. The State Government without any further intimation to the High Court or without any kind of discussion with the High Court had made the appointment of respondents Nos. 3, 4, 5 and 6, ignoring the recommendations made by the High Court. The facts further go to indicate that on receipt of the detailed companyments and the resolution a cabinet sub-committee had companysidered the matter and on the recommendations made by the Cabinet sub-committee, the Governor did number act on the recommendations made by the High Court but made the appointments on the recommendations of the sub companymittee. The recommendations of the sub-committee were never companymunicated to the High Court and the State Government had number discussed or sought the views of the High Court on the findings and recommendations of the cabinet sub-committee. It is, therefore, abundantly clear from the facts of the present case that the companynter-proposals sought to be made by the Government in the matter of appointment were never companymunicated to the High Court and the High Courts views on the said proposals of the Government were never asked for and the High Court was number at all companysulted in the matter of Governments proposals to appoint respondents Nos. 3, 4, 5 and 6 as District Judges. It is well settled that companysultation or deliberation is number companyplete or effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of their views. If one party makes a proposal to the other who has a companynter proposal in his minds which is number companymunicated to the proposer, the direction to give effect to the companynter proposal without anything more, cannot be said to have been done after companysultation. We are, therefore, of the opinion that in the instant case there has number only been numbereffective or companyplete companysultation but, in fact, there has been companyplete lack of companysultation in the matter of appointment of Respondents Nos. 3, 4, 5 and 6. We must, therefore, hold that the appointment of the Respondents Nos. 3, 4, 5 and 6 in the absence of companysultation with the High Court must be held to be violative of the companystitutional requirement and therefore, invalid. The impugned order appointing respondents Nos. 3, 4, 5 and 6 has, therefore, necessarily to be quashed. Before companycluding we companysider it necessary to emphasize that independence of the judiciary is one of the basic tenets and a fundamental requirement of our Constitution. Various Articles in our Constitution companytain the relevant provisions for safeguarding the independence of the Judiciary. Art 50 of the Constitution which lays down that the State shall take steps to separate the judiciary from the executive in the public services of the State, postulates separation of the judiciary from the executive. Unfortunately, for some time past there appears to be an unhappy trend of interference in the matter of judicial appointments by the executive both at the State and the Central level. The unfortunate interference by the executive results in prolonged and unnecessary delay in making the appointments and judicial vacancies companytinue for months and in cases for years with the result that the cause of justice suffers. It is companymon knowledge that members of the Bar who are companysidered suitable to be on the Bench are reluctant to join the Bench and the Office of a Judge has for various reasons ceased to attract the tenanted members of the Bar. The further unfortunate fact is that even in cases when companypetent members of the Bar may be persuaded to accept the office of a High Court Judge or join the higher judicial service, they ultimately withdraw their companysent in view of the delay in making the appointments and because of various restrictions sought to be imposed. As in the present case we are number really companycerned with the appointment of a Judge of the High Court or of a direct appointment to the higher judicial service from the Bar, we do number purpose to dilate on this subject. Article 235 of the Constitution vests the companytrol of judicial administration companypletely in the High Court excepting in the matter of initial appointment and posting of district judges and the dismissal, removal or termination of services of these officers. Even in these matters the requirement of the Constitution is that the Governor must act in companysultation with the High Court. If in the matter of appointment, the High Court is sought to be ignored and the executive authority chooses to make the appointment, independence of the judiciary will be affected. Persons who are interested in being appointed District Judges, whether directly or by promotion, will try to lobby with the executive and curry favour with the Government for getting these appointments and there is every possibility of the independence of such persons so appointed being undermined with the companysequence that the cause of justice will suffer. We are of the opinion that healthy companyvention and proper numberms should be evolved in the matter of these appointments for safeguarding the independence of the judiciary in companyformity with the requirements of the companystitution. We are of the opinion that numbermally, as a matter of rule, the recommendations made by the High Court for the appointment of a District Judge should be accepted by the State Government and the Governor should act on the same. If in any particular case, the State Government for good and weighty reason find it difficult to accept the recommendations of the High Court, the State Government should companymunicate its views to the High Court and the State Government must have companyplete and effective companysultation with the High Court in the matter. There can be numberdoubt that if the High Court is companyvinced that there are good reasons for the objections on the part of the State Government, the High Court will undoubtedly reconsider the matter and the recommendations made by the High Court. Efficient and proper judicial administration being the main object of these appointments, there should be numberdifficulty in arriving at a companysensus as both the High Court and the State Government must necessarily approach the question in a detached manner for achieving the true objective of getting proper District Judges for due administration of justice. It appears that in the instant case, the State Government without any kind of intimation to the High Court or any discussion or deliberation with the High Court refused to accept the recommendations made by the High Court and proceeded to make the appointments only on the basis of seniority without any kind of companysultation with the High Court. Seniority, undoubtedly, is a relevant factor in companysidering promotion. It is, however, to be borne in mind that in the matter of promoting the Subordinate Judge to a District Judge, seniority is number the only criterion, though it is a material factor to be companysidered. The true test in the matter of promotion is the suitability of the candidate. In companysidering the suitability, numberdoubt, the seniority plays a very important role. A senior Subordinate Judge may by virtue of the longer period of his service and wider experience be numbermally companysidered to be more suitable than any junior Officer. The greater length of service also gives the High Court an opportunity of judging his performance and merit for a longer period. If, howsoever, on a proper companysideration of the performance and merit of the officer for this longer period, the High Court companyes to the companyclusion that the performance of the officer companycerned though for a period longer than any officer junior to him is number satisfactory and meritorious enough, to entitle him to be promoted, the High Court cannot be companypelled to recommend such an officer only on the ground of his seniority for promotion. It has to be borne in mind that in such a case the High Court has the further advantage of judging the suitability of the officer, taking into companysideration his performance over a longer period of time. The High Court by virtue of its companytrol over the officers must be companysidered to be the best judge of the ability and suitability of any officer as the High Court has in its possession all relevant materials regarding the performance of the officer. The High Court of the State is primarily entrusted with the judicial administration in the State and for efficient and due discharge of its responsibility, the High Court needs to have proper officers in proper places. The High Court must be recognised to be the best judge of the requirements for proper and efficient administration of justice and it should generally be left to the High Court to decide as to which of the officers will best serve the requirements in furtherance of the cause of justice. High Courts main companycern is efficient judicial administration in the State for properly serving the cause of justice. While making any recommendation, numberother extraneous matter weighs with the High Court. The High Court judges the suitability for promotion in a detached manner taking into companysideration all material facts and relevant factors for promoting the cause of justice and efficient judicial administration in the State. It may be a problem for the High Court to properly post a person as a District Judge whom the High Court companysiders number be suitable for the post and to entrust him with the responsibility of a District Judge. The appointment of Respondent Nos. 3, 4, 5 and 6 made by the State Government in violation of the companystitutional provisions are, therefore, set aside. The said vacancies are directed to be filled up in accordance with law. We, however, wish to make it clear that quashing the appointments of Respondents Nos. 3, 4, 5 and 6 will number render any orders passed and judgments delivered by them during the period they have companytinued to function as District Judge on the basis of the invalid appointments made, illegal, invalid and void. To prevent any kind of companyfusion in the matter of administration of justice and in the larger interest of justice order passed and judgments delivered by the Respondents Nos. 3, 4, 5 and 6 have to be held valid and binding, as if their appointments so long as the same have number been set aside, were valid for the purposes of dealing the matters disposed of by them. The appeal filed by the appellants and the writ petition filed by them in the High Court of Jammu and Kashmir are accordingly allowed to the extent indicated above with companyts against the State Government. In view of this order numberorder is necessary on the writ petition filed in this Court. PATHAK, J. I entirely agree with my learned brother Sen in his observations companycerning the incompetence of the certificate granted by the High Court and the maintainability of the writ petition and in the order granting special leave to appeal to the appellants. On the merits I agree with my learned brother that the promotions of respondents Nos. 3, 4, 5 and 6 as District and Sessions Judges by the State Government is companytrary to law inasmuch as there was numberconsultation between the State Government and the High Court before the promotions were effected. This companytention of the appellants must succeed. I do number propose to express any opinion on the other companytention of the appellants that the promotions fall outside the scope of Article 233 of the Constitution.

civil appellate jurisdiction civil appeal number 283 of 1966. appeal by special leave from the judgment and order dated march 13 1963 of the mysore high companyrt in writ petition number 1440 of 1962. r. l. iyengar r. n. sachthey for r. h. dhebar for the appellant. the respondent appeared in person. the judgment of the companyrt was delivered by bachawat j. this appeal raises a question of the validity of the latter part of r. 9 2 of the mysore recruitment of gazetted probationers rules 1959 framed by governumber of mysore in exercise of his powers under the proviso to art. 309 of the companystitution. the rules came into force on september 1 1 1959. rule 3 requires that for a period of five years. two-thirds of the number of vacancies as determined by the government arising in the cadres in the state civil services specified in the schedule shall be filled by recruitment of candidates selected under the rules. the schedule lists two class i and twelve class 11 cadres. the two class i cadres are those of 1 assistant commissioners in the mysore administrative service and 2 assistant companytrollers in the mysore state accounts service. both cadres are in the pay scale of rs. 300-25-500-50-30- rule 4 provides that the recruitments shall be made on the basis of the results of written and viva voce examinations companyducted annually by the public service commission. rules 5. 6 and 7 prescribe the age limit the academic qualifications of candidates and the minimum pass marks. rules 8 and 9 are in these terms .lm15 list of successful candidates in the examination the names of candidates successful in the examination shall be published in the mysore gazette. by the companymission in the order of merit. appointment of probationers.-- 1 subject to the rules regarding reservation of posts for backward classes contained in government orders number. gad 26 orr 59 dated the 13th may 1959 and number gad 32 orr 59 dated the 18th july 1959 and the provisions of sub rule 2 the candidates successful in the examination whose names are published under rule 8 shall be appointed as probationers to class i posts in the order of merit and thereafter to class it posts in the order of merit. while calling for applications the candidates will be asked to indicate their preferences as to the cadres they wish to join. the government however reserves the right of appointing to any particular cadre any candidate whom it companysiders to be more suitable for such cadre. by a numberification dated september 26 1959 the public service companymission invited applications for admission to a competitive examination for the recruitment of class i probationers to 20 posts in the mysore administrative service and 2 posts in the mysore state accounts service. the number of posts were liable to alteration. 15 per cent of the posts was reserved for scheduled castes and 3 per cent was reserved for scheduled tribes. in his application for admission to the examination the respondent indicated his preference for appointment as probationary assistant commissioner. he was an eligible candidate and was allowed to appear at the examination. on july 5 1962 the commission duly published the list of successful candidates in the mysore gazette. in this list the respondent ranked fourth in the order of merit. it appears that the commission sent a separate recommendation to the government stating that they had selected the 20 candidates ranking 1 to 3 5 to 8 10 to 14 16 to 19 21 22 25 and 26 for appointment as assistant companymissioners and the seven candidates ranking 4 9 15 20 23 24 and 27 for appointment as assistant companytrollers. the state government accepted this recommendation and made the 27 appointments accordingly. the respondent was appointed as assistant controller by an order dated october 20 1962. the respondent was number appointed as assistant companymissioner though he had indicated his preference for that post. aggrieved by this order the respondent filed a writ petition in the mysore high companyrt asking for an order directing the state of mysore to appoint him as assistant commissioner and for companysequential reliefs. before the high court it was companymon ground. that the two class i posts the post of assistant companymissioner in the mysore administrative service had better prospects and was more attractive. more promotional posts including posts in the i.a.s. cadre were open to assistant companymissioners. their next promotional post was that of deputy companymissioner in the pay scale of rs. 900-40-1100-50-1300. for an assistant companytroller in the mysore state accounts service the next promotional job was that of a deputy companytroller in the pay scale of l s5sci--9 a rs. 600-40-1000. the high companyrt heldthat 1 under r. 9 2 the government-had the power to decide to which post or cadre a successful candidate should be appointed 2 for making the selection the government had to apply its own mind 3 the public service companymission had numberpower to make the selection number it need be companysulted on this question under art. 320 3 of the companystitution and 4 as the government made the selection without applyingits own mind on the recommendation of the companymission the order dated october 20 1962 was invalid. accordingly the high companyrt by its order dated march 13 1963 issued a writ of mandamus directing the government to decide to which post or cadre the respondent should be appointed. from this order the state of mysore appeals to this companyrt by special leave. in this appeal the state of mysore challenges the correctness of the findings that 1 the government did number apply its own mind in making the selection and 2 the public service companymission need number be companysulted as to the suitability of the candidate for such selection under art. 320 3 of the companystitution. the state of mysore naturally supports the finding that the government had the power under r. 9 2 to select to which post or cadre a successful candidate should be appointed. but the more fundamental question is whether that portion of r. 9 2 which vests in the government this power of selection is valid. the contention of the respondent is that this portion of the rule is violative of arts. 14 and 16 of the companystitution. the rules make provision for the direct recruitment to several cadres in the state services on the basis of the result of a companypetitive examination. the examination is held annually. it is open to all eligible candidates. the result of the examination is annumbernced and the list of successful candidates in the order of merit is published. subject to the reservations for scheduled castes scheduled tribes and backward classes the successful candidates are entitled to be appointed as probationers to class i posts in theorder of merit and thereafter to class ii posts in the order of merit. if there are vacancies in a numberof class i or class ii cadres r. 9 2 companyes into play. the candidates are required to indicate in their applications their preferences for the cadres they wish to join. had there been numberhing more in r. 9 2 the successful candidates would have the preferential claim in the order of merit to appointment in the cadres for which they indicated their preferences. thus if there are 20 vacancies in cadre a and 1 7 vacancies in cadre b a successful candidate ranking fourth in order of merit would be appointed as a matter of companyrse to cadre a for which he indicated his preference. but the latter part of r. 9 2 reserves to the government the right of appointing to any particular cadre any candidate whom it companysiders more suitable for such cadre. the rules are silent on the question as to how the government is to find out the suitability of a . candidate for a particular cadre. a. single companypetitive examination is held to test the suitability of candidates for. several cadres. those who succeed in the examination are found. suitable. for all the cadres and their. list in order of merit is published under r. 8. numberseparate examination is held to test the suitability of the candidate for any particular cadre. the list of successful candidates published under r. 8 does number indicate that any candidate is more suitable for cadre a rather than for cadre b. the rules do number give the public service companymission the power to test the suitability of a candidate for a particular cadre or to recommend that he is more suitable for it. number is there any provision in the rules under which the government can test the suitability of a candidate for any cadre after the result of the examination is published. the result is that the recommendation of the public service companymission is number a relevant material number is there any other material on the basis of which the government can find that a candidate is more suitable for a particular cadre. it follows that under the latter part of r. 9 2 it is open to the government to say at its sweet will that a candidate is more suitable for a particular cadre and to deprive him of his opportunity to join the cadre for which he indicated his preference. take the present case. an open companypetitive examination was held for recruitment to the posts of assistant companymissioners in the mysore administrative. service and assistant controllers in the mysore state accounts service. though both are class i posts the post of assistant companymissioner has better prospects. but for the latter part of r. . 9 2 the successful candidates would have the preferential claim for appointment as probationers to the posts of assistant commissioners in order of merit and thereafter to the posts of assistant companytrollers in the order of merit. as a matter of fact there were 20 vacancies in the posts of assistant commissioners. the respondent ranked fourth in the order of merit. he indicated his preference for the post of assistant companymissioner and had a preferential claim for appointment to that post. the candidates ranking 1st 2nd 3rd and 5th were appointed as assistant companymissioners. the respondent though ranking fourth in order of merit was singled out and was debarred from the post of assistant commissioner. it is because of the arbitrary power under the latter part of r. 9 2 that the government companyld make this unjust discrimination. the principle of recruitment by open companypetition aims at ensuring equality of opportunity in the matter of employment and obtaining the services of the most meritorious candidates. rules 1 to 8 9 1 and the first part of r. 9 2 seek to achieve this aim. the latter part of r. 9 2 subverts and destroys the basic objectives of the preceding rules. it vests in the government an arbitrary power of patronage. though r. 9 1 requires the appointment of successful candidates to class i posts in the order of merit and thereafter to class 11 posts in the order of merit r. 9 1 is subject to r. 9 2 and under the companyer of r. 9 2 the government can even arrogate to itself the power of assigning a class i post to a less meritorious and a class ii post to a more meritorious candidate. we hold that the latter part of r. 9 2 gives the government an arbitrary power of ignumbering the. just claims of successful candidates for recruitment to offices under the state. it is violative of arts. 14 and 16 1 of the companystitution and must be struck down. having regard to his rank in order of merit the respondent had the right to be appointed to the post of assistant commissioner. as the offending part of r. 9 2 is invalid the state government had numberpower to withhold the post from him. the high companyrt should therefore have directed the government to appoint him to that post. in the result we strike down the following part of r. 9 2 of the mysore recruitment of gazetted probationers rules 1959 the government however reserves the right of appointing to any particular cadre any candidate whom it considers to be more suitable for such cadre. the order passed by the high companyrt directing the government to decide to which post or cadre the respondent should be appointed under r. 9 2 . is set aside.

Leave granted. This is a tenants appeal. The case has a chequered history. The first respondent, as landlord, filed an application for release of the suit premises residential tenement in the year 1972. The Rent Control and Eviction Officer however rejected the release application on 10.1.1973 and alloted the premises to the appellant on 18.01.1973 without fixing any rent. Being aggrieved by the rejection of the release application and the order of allotment, the first respondent filed revision petitions. The Additional District Judge, Bareilly allowed the revision and remanded the matter to the Rent Control and Eviction Officer. By order dated 21.1.1975, the Rent Control and Eviction Officer released the premises in favour of first respondent by ordering eviction of the appellant. That order was challenged by the appellant in revision which was dismissed by the District Judge, Bareilly on 23.07.1975 granting six months time to the appellant to vacate the premises. At that stage the appellant filed O.S. No.67 of 1976 companytending that the second respondent B.K. Khanna was the landlord and therefore the release in favour of first respondent P.N. Khanna was illegal, and he cannot therefore be evicted in pursuance of the release order in favour of first respondent. In the meanwhile, in pursuance of the order of the District Judge Form C was served on the appellant for vacating the premises. That was challenged by the appellant in a writ petition W.P.No.2065/1977 which was dismissed on 18.07.1978. Thereafter, Form D was issued on 23.11.1978. That companyld number be executed in view of the temporary injunction granted in the aforesaid suit filed by the appellant. Ultimately the appellants suit was dismissed on 07.01.1979 recording a finding that both respondents P.N. Khanna and B.K. Khanna were the landlords and that there was numberinfirmity in the release order in favour of one of them. The appellant challenged the judgment and decree of the trial companyrt by filing a appeal before the District Judge and the appeal was dismissed on 18.02.1981. Thereafter, a second appeal was filed by the appellant which was also dismissed on 19.02.1982. In this background, the landlords again filed an application for possession and issuance of fresh Form D on 28.05.1983. The appellant filed objections to the said application that the release order only in favour of one of the landlords companyld number be enforced. He companytended that as per the decree in a partition suit S.No.305/1974 between first respondent and second respondent, a part of the suit premises was allotted to second respondent. The Rent Control and Eviction Officer by order dated 23.05.1984 upheld the objections and held that possession of the suit premises companyld number be delivered to first respondent. That was challenged by the landlords in revision which was rejected by the District Judge on 14.12.1992 on the ground of maintainability. The order dated 23.5.1984 of the Rent Control and Eviction Officer and the order dated 14.12.1992 of the Revisional Court were challenged in W.P.No.5585/1993 by respondents 1 and 2. The impugned order dated 20.2.2006 was passed allowing the said writ petition of the landlords. The High Court held that respondents 1 and 2 were companyowners and there was numberillegality in the release order. The learned Single Judge after referring to the history of the case and the attempts of the landlord to secure possession in pursuance of the order of release granted as long back as 1975, set aside the orders dated 23.5.1984 and 14.12.1992. The learned Single Judge also numbered the companyduct of the appellant which virtually amounted to abusing the judicial process to avoid delivery of possession. It is in this background the learned Single Judge while directing delivery of possession, also held that the appellant tenant should pay rent damages for use and occupation at the rate of at least Rs.1,000/- per month from 18.1.1973 date of allotment in favour of appellant till 20.2.2006 date of the order of the High Court . The High Court further directed that from the date of its order 20.2.2006 to date of actual delivery of possession, the appellant shall pay Rs.100/- per day as damages. This Court stayed recovery of damages by order dated 21.3.2006 but did number stay the order for delivery of possession. Learned companynsel for the appellant informed us that the appellant has vacated and delivered the possession of the premises to the landlord on 11.06.2006. The learned companynsel for the appellant was number able to make out any error in the order of High Court directing appellant to deliver possession of the suit premises to first respondent. He therefore restricted the challenge only to the issue as to whether the High Court was justified in directing payment of damages for use of the premises at the rates mentioned therein. The respondents though served have remained unrepresented. Section 16 9 of the Uttar Pradesh Buildings Regulation of Letting Rent and Eviction Act,1972 provides that the District Magistrate while making an order of allotment under sub-section 1 a may also direct payment of one months presumptive rent. It is number in dispute that when the premises was alloted numberrent was fixed. The narration of the facts above will demonstrate that the landlords had challenged the allotment in favour of the appellant and there was an order of release in favour of the first respondent as long back on 21.1.1975 but the appellant had prevented the landlord from obtaining possession for more than three decades by a series of litigations. It is in these circumstances that the learned Single Judge thought fit to direct payment of damages, instead of driving the landlords to one more round of litigation to recover damages. As it is a just order we do number propose to go into the question whether such an order for damages companyld have been made in a writ petition arising from an application for possession filed before the Rent Control and Eviction Officer, or interfere with the direction for payment of damages. But we feel that fixation of rate of damages fixed at a uniform rate of Rs.1,000/- per month from 18.1.1973 requires modification. The appellant has produced documents to show that the rent paid by the previous tenant was Rs.23/- per month and the landlord had sought fixation of rent in 1979 indicating Rs.150/- per month was the prevailing rent.

P. KURDUKAR, J. Smt. Pratibha since deceased was the daughter of Kamal Goyal PW 2 a resident of Sangrur. She was married to Ravi Kumar A-3 on February 19, 1981. It was an arranged marriage. Kamal Goyal companyes from a middle class family and is in service with limited source of income. At the proposal stage Kamal Goyal alleged to have made it clear that having regard to his means the marriage would be a simple one. He claimed to have spent on marriage of pratibha an amount of Rs. 70,000/-. ravi Kumar A-3 and Narinder Kumar A-4 who has been acquitted are the sons of Baldev Krishan A-1 . Sarla Devi S-2 is the wife of A-1. They are the residents of Jullundur city, owning a ground floor and one stormy house. On the ground floor they run business in electric goods under the name of B.K. Electrical Industry whereas the first floor is used for their residence. It is a joint Hindu family. Baldev Krishan being a businessman was then having companyparatively a better financial position. Smt. pratibha after her marriage came to Jullundur and resided with her husband and in laws. In the last week of February, 1981, Kamal Goyal came to Jullundur and took away Smt. Pratibha to Sangrur. Pratibha told her father that her in-laws were of a very greedy nature and were criticising her on dowry issue. On the following day on reaching Sangrur A-3 sent a telephonic message to Kamal Goyal that his mother was taken ill and Pratibha would return within a short period. Accordingly, she was brought back to Jullundur. After about two or three months. Pratibha again came to Sangrur and told her father that all the accused persons were taunting her for having brought numberhing in dowry and that the clothes brought by her in dowry were mere rags and even other articles were number given worth to their use. It is alleged that Pratibha used to explain to her in-laws that her father came from an ordinary family and whatever he companyld give in dowry had been given and there was numberpoint in criticising her parents. It is companymon premise that Rekha Rani PW 1 who happened to be her aunt was residing at Jullundur and as and when Pratibha met her she used to companyvey as to how she was illtreated by the accused. Upon hearing the distressing remarks made by the accused, the father used to advise Pratibha number to take the remarks of her in-laws seriously and things would be settled down after passage of time. Pratibha used to tell her parents that her husband A-3 and mother-in-law A-2 used to tease her on her squint. It may be stated that Pratibha was blessed with a son on December 24, 1981, at her parents house and this event was celebrated by her father by inviting members of her i-laws family and spent about Rs. 7,000/- on customary gifts Shushak . It is then alleged by the prosecution that on June 2, 1981 which was a Nirjala Ekadasi day, Smt. Rekha Rani PW 1 and her husband Vijay Kumar PW 5 went to the house of the accused for giving her presents. Rekha Rani wished Pratibha but, however, she was found to be depressed. At that time A-2 told Rekha Rani that she should have searched a boy having a squint as a better match for Pratibha having a status companymensurate with a girl. A-2 also taunted saying that they accepted the proposal as Kamal Goyal was a gentleman but he had given rages in dowry. A-2 also alleged to have remarked that Kamal Goyal was a scoundrel and would learn a lesson when he would marry his other children. He must find out only scoundrels. Rekha Rani thereafter came to an adjoining companyrtyard where A-3 was sitting with a view to have to talk to him and companyvey the remarks may by A-2. Sarla Devi A-2 thereafter followed her whereupon A-3 told his mother to keep quiet and should number talk numbersense. A-2 thereupon stated that she would set right Pratibha as God has given her a lot of money. A-2 also then passed remarks saying that some other proposals had companye for. A-3 offering dowry of two lakhs. After hearing these remarks of A-2 Rekha Rani returned to her room. It is then alleged by the prosecution that on June 5, 1982 Kamal Goyal came to Jullundur for taking Smt. Pratibha to Amritsar where his mother-in-law was ailing. He also intimated to A-1 that he would be taking Smt. Pratibha on June 6, 1992 to Sangrur as the marriage of his brother Kamal Goyals brother was to take place on June 20, 1982 at Delhi. Accordingly on 5th June, 1992 Kamal Goyal came to the house of Accused whereupon A-1 and A-3 told him that Pratibha would accompany him. Kamal Goyal then went to the house of Rekha Rani who told him that Pratibha was number happy as the members of her in-laws family were taunting her on various grounds including a squint in the eye. At about 3.00 p.m. Kamal Goyal went to the house of A-1 and he was told by A-1 and A-3 that Pratibha would number accompany him. Kamal Goyal wanted to sort out the differences and, therefore, he along with A-1 and A-3 went to the drawing room on upstairs. A-2 and Pratibha also came there and it was found that the latter was very much disturbed. Pratibha told her father that all the accused were ill-treating her and calling her and him as bastards. Kamal Goyal according to the prosecution told the accused that he belonged to a cultured family and requested number to abuse. Sarla A-2 then told him that because of this matrimonial relation and of meagre gifts of a poor quality their status in the society was lowered down. It is alleged by the prosecution that A-2 companyplained to Kamal Goyal that Pratibha had numberdesire to work in the house and was a burden to the family. Accused persons then told Kamal Goyal that Pratibha would number accompany him. Despite the protest Kamal Goyal requested the accused to send Pratibha to Sangrur with him at about 3.00 p.m. on the following day. Kamal Goyal accordingly went to the house of the accused on June 6, 1982. Pratibha was getting ready to accompany him but after some time she came with tears in her eyes and told him that she would number accompany him. Kamal Goyal found her very much frightened and perplexed and wanted to know from her the reasons therefor but she refused to say anything at that time. Kamal Goyal then asked Baldev Krishan A-1 as to what was happening in the house and who had threatened Pratibha whereupon he told him number to worry and he would take every precaution and responsibility of her safe stay in the house. A-2 then told Kamal Goyal that Pratibha would companye directly to Delhi on June 18, 1982 or she would be sent to Sangrur either on 21th or 13th June, 1982. With great disappointment Kamal Goyal returned to Sangrur and since he was worried about Pratibhas well being, wrote a letter Ex. PB to Vijay Kumar PW 5 and sent another to A-1 on June 7, 1982. Smt. Janak, the mother of Pratibha also wrote a few lines on Ex. PB to Smt. Rekha Rani. It is alleged by the prosecution that relations between Pratibha and members of her in-laws family instead of improving worsened and ultimately on June 8, 1992, she died of burn injuries in her matrimonial house. Coming to the eventful afternoon of June 8, 1982 at about 6.30 p.m. Raj Kumar PW 4 happened to pass in front of the shop of A-1 and saw many persons gathered there. People were taking that accused persons had burnt their daughter-in-law on account of their greed for dowry. He numbericed that the accused persons were very much perturbed. He then went to the house of Rekha Rani to inform her about the incident. Rekha Rani and Vijay Kumar reached the house of accused immediately. Pratibha had sustained burn injuries between 4.00 and 6.00 p.m. on 8th June, 1982. Dr. R. N. Batra DW 1 who had companye to the house of A-1 at about 7.00 p.m. was asked to inform Kamal Goyal on telephone about the death of Pratibha. Kamal Goyal on receipt of a telephone call from Dr. R. N. Batra from the house of A-1 was shocked to hear about his daughters death. Kamal Goyal wanted to talk to A-1 personally but doctor told him that he would number be able to speak on telephone due to shock. Kamal Goyal and his wife left Sangrur for Jullundur and reached at the house of A-1 during mid night. In the meantime A-1 asked Chanan Ram DW 4 to go and lodge a report at the police station. However, at about 7.30 p.m. he met ASI Hardip Singh near the Laxmi Cinema and told him about the incident. His statement Ex. PH was recorded and the crime came to be registered as death due to accidental burns. ASI Hardip Singh then reached the place of occurrence and started the investigation. An inquest Ex.P was held on the dead body of Pratibha. He also prepared the Panchnama of place of occurrence. Gopal Singh PW 9 the Inspector, on getting the information about the incident reached the house of the accused at about 10.30 p.m. and took over the investigation. He recorded the statement of Rekha Rani Ex. PA/1 and forwarded the same to the police station which was formally treated as the FIR Ex. PA/2. During investigation he seized some of the articles lying in the kitchen. In the meantime, Kamal Goyal along with his wife reached there. An ambulance was arranged and the dead body of Pratibha was sent to the Civil Hospital, Jullundur. Vijay Kumar PW 5 , Subhash Chander and two companystables, namely, Gurmit and Ghanshyam Dass accompanied the dead body. The post-mortem examination was companyducted by the Board headed by Dr. B.S. Parmar PW 3 along with Dr. Mandip Singh Sethi and Dr. Surinder Kaur. This was done at the instance of Harbans Lal, Advocate, an uncle of A-3. The statements of various persons were recorded during investigation. The accused came to be arrested on June 9, 1982. After companypleting the investigation, a charge-sheet was submitted against four accused persons for an offence punishable under Section 302/34 IPC. The accused denied the allegations levelled against them and they pleaded that they are innocent. They denied to have demanded any dowry or meted out any ill-treatment to Pratibha. They also denied to have taunted Pratibha on her squint in the eye. According to the accused she was treated very well in their house and there used to be numberquarrels with her. The burn injuries on Pratibha were either accidental or suicidal and number homicidal. A-1, A-3 and A-4 pleaded that they were in the shop ground floor and busy with their customers and they first time came to know when A-4 went upstairs at about 6.00 p.m. who reported of a burning smell companying from their residential block. When they went upstairs they found Pratibha lying in the kitchen with burn injuries. The defence of A-2, Sarla Devi was one of alibi. According to her she had done to her sisters house at 4.00 p.m. as she had returned home after her eye operation. She came to know about the incident on her way to her house. She denied that she ever ill-treated her and claimed that she is innocent and be acquitted. The prosecution case entirely rested upon the circumstantial evidence and it relied upon five circumstances, namely, 1 motive 2 place and time of the incident 3 presence of all the four accused at the time of occurrence 4 companyduct of the accused persons who gave a false explanation that deceased died due to accidental burn injuries and 5 medical evidence. In order to prove motive the prosecution relied upon the evidence of Rekha Rani PW 1 , Kamal Goyal PW 2 and Vijay Kumar PW 5 . In addition to this evidence the prosecution also relied upon the evidence of formal witnesses including the police officers who investigated into the crime. The accessed in their defence examined six witnesses including Dr. R.N. Batra DW 1 and Chanan Ram DW 4 . On careful scrutiny of the oral evidence and other materials on record the trial companyrt by its judgment and order dated October 16, 1982 held that the prosecution had proved all the circumstances which had established beyond reasonable doubt that A-1, A-2, and A-3 were responsible for companymitting the murder of Pratibha. Having held so the learned trial judge companyvicted A-1, A-2 and A-3 under Section 302/34 IPC and sentenced each one of them to suffer life imprisonment and to pay a fine of Rs. 5,000/- in default of payment of fine to undergo further RI for two years. The learned trial judge, however, gave the benefit of doubt and acquitted Narinder Singh A-4 . The appellants-convicts being aggrieved by the judgment and order of companyviction passed by the trial companyrt preferred criminal appeal to the Punjab Haryana High Court at Chandigarh. The Division Bench of the High Court by its judgment and order dated April 30, 1993 after reappraisal of the evidence on record dismissed the appeal and companyfirmed their companyviction and sentence. It is against this order of companyviction and sentence, the three appellants on obtaining Special Leave filed three separate Criminal Appeals i.e. Criminal Appeal No. 45 of 1984 is filed by Baldev Krishan A-1 , Criminal Appeal No. 143/84 is filed by Sarla Devi A- 2 and Criminal Appeal No. 144/84 is filed by Ravi Kumar. During the companyrse of arguments we are informed by the learned companynsel for the appellants that Baldev Krishan died on 5-2-1993, resultantly his appeal stands abated. We have carefully gone through the judgments of the learned companyrts below and the evidence on record. Mr. U.R. Lalit and Shri R.C. Kohli, Sr. companynsel appearing for the appellants assailed the impugned judgment on various grounds. They urged that the companyrts below have totally misread the evidence of Rekha Rani PW 1 , Kamal Goyal PW 2 and Ravi Kumar PW 5 and strenuously urged that the evidence of these three witnesses did number make a mention that at any point of time any of the appellant accused demanded dowry or any other articles of gift. The expression of poor quality of gifts or of meagre value assuming to be true would number and companyld number amount to a demand of dowry. The evidence of these witnesses in that behalf is numberhing but their figment of imagination or at best inferential one and, therefore, finding of ill-treatment based on each evidence is unsustainable. They then urged that Pratibha had numberphysical disability much less any squint and, therefore, there was numberquestion of teasing her on that score. They urged that there was numberevidence worth the name on record to hold that any of the appellants accused meted out illtreatment to Pratibha at any time. They therefore, submitted that the finding of the companyrts below as regards motive to cause death is patently illegal and cannot be sustained. After careful scrutiny of the evidence of these three witnesses and other materials on record, we are satisfied that the companytentions raised by the learned companynsel for the appellants are totally unsustainable. Rekha Rani PW 1 and Kamal Goyal PW 2 testified several instances where the appellants taunted Pratibha by saying that A-3 had better proposals who were prepared to give dowry of rupees two lakhs but they had accepted her proposal. The witness further stated that Pratibha always used to companyplain that members of her in-laws family often made humiliating remarks as regards the poor quality of gifts of merger value given at the time of marriage. In the facts of this case such remarks in our opinion undoubtedly companynected with harassment on account of insufficient dowry. There are ways and ways to express the demand of dowry. One adopted by the appellants companyld be said to be a sophisticated one without using the word dowry. Rekha Rani in her evidence had referred to the incident in detail when she and her husband on 2nd June, 1982 went to give presents to Pratibha on Nirjala Kkadshi festival. From her evidence there is numbermanner of doubt that the appellants had given most humiliating treatment number only to Pratibha but also to Rekha Rani. A-2 had gone to the extent of calling the parents of Pratibha as bastards and telling her that they should have found out a suitable match for their daughter having a squint. The fact of illtreatment meted out to Pratibha also finds support from the evidence of Kamal Goyal PW 2 on two occasions when he had visited the house of A-1 when Pratibha was found totally perplexed and depressed and was unable to speak out her painful feelings. As and when Pratibha went to Sangrur and particularly when she had gone at the time of her delivery, she told her parents how she was treated by the appellants. The letters Exs. PB/1 and PB/2, on record do suggest and express companycern over the well being of Pratibha at her inlaws house and those two letters were written to Rekha Rani PW 1 and Vijay Kumar PW 5 . Mr. Lalit companytended that the evidence of Rekha Rani PW 1 , Kamal Goyal PW 2 and Vijay Kumar PW 5 did number even remotely suggest that A-3 had given any ill-treatment to Pratibha. The evidence on record is totally vague and companyld number be the basis of present companyviction. We are number impressed by this argument because Kamal Goyal PW 2 in his evidence has stated that Pratibha on several occasions had told him that the appellants were giving ill-treatment to her because of insufficient dowry and also squint in her eye. We see numberreason to discard the statement of Kamal Goyal in this behalf. Mr. Lalit then urged that the prosecution had failed to lead any evidence as regards the physical ill-treatment and the reason being obvious that there was numbersuch illtreatment. The physical ill-treatment is one of the facets of ill-treatment and it is true that there is numbersuch evidence but there is sufficient evidence on record to hold that appellants did cause a mental ill-treatment to Pratibha. The companyrts below have very carefully scrutinized the evidence in this behalf and in our opinion the findings as regards motive and ill-treatment call for numberinterference. It was then urged by Mr. Lalit that the companyrts below have totally over looked the fact that Pratibha on December 24. 1981 was blessed with a son. This fact indicated that the relations between Pratibha and A-3 were quite companydial. He emphasised that the newly born son was hardly less than six months old at the time of incident and, therefore, it is difficult to believe that the appellants would think of companymitting the murder of Pratibha. We are number at all impressed by this argument but on the companytrary this argument would go against the appellants. It would be difficult to believe that having regard to the ordinary companyrse of human companyduct and in particular of mother, she would companymit a suicide and leave the child at the mercy of her in-laws. The companytention as regards accidental death would be examined a little later. The second circumstance relied upon by the prosecution was the place and time of the incident. There is numberdispute that Pratibha died due to burn injuries in her matrimonial house. Her in-laws family was then companysisted of A-1 to A-3 and the acquitted accused A-4 . The evidence on record does number show that any other person was staying in the house. Admittedly, the dead body of Pratibha was found in the kitchen. The time of incident was between 4.00 p.m. and 6.00 p.m. It is in these circumstances a reasonable explanation was expected from the accused as to under what circumstances Pratibha sustained the burn injuries. A-3 in his statement recorded under Section 313 Cr. P.C. had stated that he was busy in his shop between 4.00 p.m. and 6.00 p.m. and he did number know as to what happened on the first floor. A-2 in her statement recorded under Section 313 Cr.P.C. had been taken up a plea of alibi which we have found number acceptable. After careful scrutiny of the prosecution evidence on record and the statements of the appellants under Section 313 Cr.P.C. we have numberhesitation in accepting the findings of the companyrts below that Pratibha sustained burn injuries in her matrimonial home which was a companyvenient place and opportune time for the accused to companymit the offence in question. The prosecution, therefore, has proved this circumstance also. The next circumstance, namely, companyduct of the appellants accused who gave false explanation that the deceased died due to accidental burn injuries is again an important circumstance against the accused. Chandan Ram DW 4 was asked to and lodge a report that Pratibha sustained accidental burn injuries. This was done only with a view to misguide the investigating agency and to take a plea that the incident was companymunicated to the police at the earliest opportunity without there being any time to companycoct the same. Having held the guilt of the appellants proved in the present case, we are of the opinion that the companyduct of the appellants in giving false information about accidental burn injuries sustained by Pratibha is a circumstance which prosecution has rightly pressed into service and held proved by the companyrts below. It was then urged on behalf of the appellants that the prosecution has failed to prove that the death of Pratibha was a homicidal. In support of this argument, it was urged that A-3 was in the shop premises on the ground floor when the incident took place. A-2 had gone to her sisters house to enquire about her health as she had returned from the hospital after her eye operation. In the absence of positive and credible evidence to prove the presence of the appellants at the time of occurrence on the first floor of the house, it would be unsafe to companyvict them under Section 302/34 IPC. In order to prove that at the time of occurrence A-3 was in the shop premises, the defence led the evidence of Surjit Singh DW 2 , Dina Nath DW 3 and Chanan Ram DW 4 . All these witnesses tried to support the defence story by stating that when they visited the shop of A-3 for some work between 4 and 6 p.m., at the time A-3 was found dealing with the customers. The evidence of these three witnesses is numberhing but a tailored made to suit the defence and in our opinion the companyrts below have rightly disbelieved their evidence. Ramesh Kumar Mittal DW 5 testified that his mother was operated upon her eye on 3rd June, 1982 and she had returned to Jullundur on June 8, 1982. A-2 had companye to his house to enquire about her mother at about 4.30 p.m. and left at about 6.00 p.m. This evidence again does number persuade us to accept it as credible one and in our opinion the companyrts below have companymitted numbererror in rejecting his evidence. It was then companytended on behalf of the appellants that there is numbermention in the Panchnama that any kerosene smell was companying from the clothes of Pratibha or from her body. As against this Dr. B.S.Parmar PW 3 who companyducted the post mortem examination had numbered that the clothes of the deceased were drenched in kerosene and the small piece of cloth was found tightly held between the teeth inside the mouth of dead body of Pratibha. Relying upon these discrepancies it was urged that the evidence of Dr. S.Parmar PW 3 was totally inconsistent with the inquest Panchnama and the prosecution has created a false evidence that the clothes were drenched in kerosene to show that kerosene was used for burning her. It was also urged on behalf of the appellants that in the inquest panchnama it was mentioned that the clothes of Pratibha were companypletely burnt yet a new saree was found to have been wrapped around her body. This clearly indicated an attempt on the part of the prosecution to create a false evidence against the appellants. We have gone through the evidence of witnesses in this behalf, the inquest panchnama and the medical evidence very carefully and we are satisfied that there was numberattempt whatsoever on the part of the prosecution to create any false evidence. It is numberdoubt true that the clothes of Pratibha were companypletely burnt and some parts of the burnt clothes were sticking to her body. In order to companyer the body it appears that the body was wrapped up in the available saree. All that we companyld say about the inquest panchnama is that the police officer was number careful in doing his job. Dr. B.S.Parmar PW 3 had numberaxe to grind against the appellants and we, therefore, prefer to accept his evidence to hold that the clothes of Pratibha were smelling kerosene. It was then urged on behalf of the appellants that the medical evidence of Dr. B.S.Parmar PW 3 did number prove that Pratibha met with a homicidal death. It was further urged that the burn injuries sustained by Pratibha companyld be accidental and numbere of the appellants was responsible for these injuries. To find an answer to this companytention we have very carefully perused the evidence of Dr. B.S.Parmar and the post mortem examination report. Dr. Parmar in his evidence has stated that Pratibha had sustained 100 burn injuries and her body and clothes were smelling kerosene. He further stated that a small piece of cloth was found in the mouth of Pratibha being held tightly between the teeth and small portion thereof companyld be seen from outside. He admitted that he did number open the jaw as it was closed tightly. Dr. Parmar stated that cause of death was 100 burn injuries. Learned Counsel for the appellants urged that there is serious lacuna in the medical evidence inasmuch as they did number take out the cloth piece from the mouth which companyld have been a decisive factor to know whether there was any kerosene residue on the cloth or it was smelling kerosene. Having number done so the inference of kerosene having been used to cause the burn injuries cannot be sustained. This submission again did number appeal to us because the other part of evidence of Dr. Parmar clearly indicated otherwise. Moreover, the fact that a piece of cloth was found in the mouth militates against the accused and companypletely rules out the possibility of accidental burn injuries. The companyrts below in our opinion have rightly companycluded that Pratibha met with a homicidal death and the appellants were responsible for the same. It was then companytended that the appellants were companyvicted with the aid of Section 34 IPC for the substantive offence of murder alongwith A-4 but he was acquitted. In view of acquittal of A-4 it was companytended that the companyviction of the appellants with the aid of Section 34 IPC is bad. In support of this submission our attention was drawn to the reported decisions of this Court in Pohalya Motya Valvi Vs. State of Maharashtra AIR 1979 SC 1949 . Shidagouda Ningappa Ghandavar Vs. State of Karnataka AIR 1981 SC 764 . Sharad Birdhichand Sarda Vs. State of Maharashtra AIR 1984 SC 1622 , Laxman Naik Vs. State of Orissa AIR 1995 SC 1387 and Suresh Chandra Bahri etc. etc. Vs. State of Bihar etc. etc. AIR 1995 Supp 1 SCC 80 .

S. Radhakrishnan, J. This appeal is being prosecuted by the widow and children of one Shiv Pujan Prasad who died pending this appeal. On the eve of his retirement, as an Executive Engineer, he was served with an order of dismissal vide Office Memo dated 29.7.2005 dismissing him from service following a disciplinary enquiry initiated under Rule 7 of the U.P. Government Servant Discipline and Appeal Rules, 1999. Shiv Pujan Prasad challenged the above mentioned order before the High Court of Allahabad, in Writ Petition No.5709/2005 and also sought a direction to disburse the entire post-retiral benefits including the provident fund, leave encashment, gratuity, group insurance, etc. and also the pension due to him. Shiv Pujan Prasad was initially appointed as an Overseer in the Public Works Department of the State of Uttar Pradesh on 25.06.1971. While entering service he produced a certificate dated 22.02.1971 issued by the Sub-Divisional Magistrate, Chakia, showing that he belonged to Manjhi Majhwar Community, a scheduled caste. The post of Overseer was subsequently designated as Junior Engineer and he was companyfirmed in that post on 14.01.1974. On 01.04.1978, Shiv Pujan Prasad was awarded selection grade. Later, on 27.1.1982, he was promoted as an Assistant Engineer, a post reserved for scheduled castes. The Chief Engineer, however, subsequently passed an order reverting him to the post of Junior Engineer on the ground that he did number belong to the scheduled caste companymunity. Aggrieved by the order of reversion, Shiv Prasad preferred Writ Petition No.4080 of 1984 before the Lucknow Bench of the Allahabad High Court which was dismissed on 24.08.1984. Shiv Pujan Prasad brought up the matter before this Court, by way of appeal by special leave, in Civil Appeal No.2964/1985. It was companytended before this Court that the caste status of Shiv Pujan Prasad was determined without giving him any effective opportunity to submit his defence. Counsel appearing for the State of Uttar Pradesh fairly companyceded to that fact. This Court, therefore, set aside the impugned order and directed the District Collector, Varanasi, to hold a fresh enquiry after giving reasonable opportunity to Shiv Pujan Prasad to defend his case. Shiv Pujan Prasad was also permitted to hold the post of Assistant Engineer, and it was ordered that his further posting would be governed by the outcome of the enquiry which was directed to be companypleted within two months. Pursuant to the directions of this Court, a fresh inquiry was held by Collector, Varanasi, through Sub-Divisional Officer, Chakiya, Varanasi. It was found that Shiv Pujan Prasad belonged to Manjhi Majhwar by caste, which is a scheduled caste. A companyy of the report dated 25.8.1985 was submitted by the Sub-Divisional Magistrate to the District Magistrate, Varanasi. The District Magistrate, Varanasi, referring to the judgment of this Court in Civil Appeal No.2964 of 1985 forwarded a companymunication to the Registrar of Supreme Court of India, enclosing a companyy of the order passed in pursuance of the directions of this Court. A companyy of the letter was also forwarded to the Special Secretary, Government of Uttar Pradesh, Public Works Department, Section 8, Lucknow. Shiv Pujan Prasad had to file a companytempt petition before this Court since authorities did number permit him to function as Assistant Engineer in spite of the determination of his caste as ordered by this Court. The Respondents had to express their unconditional apology for number companyplying with the order of this Court. Accepting the apology, the companytempt proceedings were dropped by this Court vide order dated 27.11.1987, Shiv Pujan Prasad was permitted to resume work as an Assistant Engineer and companytinued in service. He was promoted as Executive Engineer vide order dated 02.02.1985. The State Government later received a companyplaint dated 03.02.1998 from the General Secretary of an Association called Kisan Sangharsh Samiti, Mirzapur, Sonebhadra, questioning the caste status of the appellant. Another companyplaint was registered before the Uttar Pradesh Schedule Caste and Schedule Tribe, Commission, by the All India SC, ST, Backward Classes and Minority Employees Welfare Association, Pipri, on 20.04.1999. The Commission ordered yet another enquiry on the caste status of Shiv Pujan Prasad under Section 11 of U.P. Schedule Caste and Schedule Tribe Commission Act, 1995. Enquiry revealed that Shiv Pujan Prasad belonged to Mallah companymunity which is a backward companymunity and that he did number belong to Manjhi companymunity which is a Scheduled Caste. Pointing out that Shiv Pujan Prasad had obtained appointment on the basis of forged caste certificate, an FIR was lodged against him by the Department for an offence punishable under Section 420 IPC. Shiv Pujan Prasad was then placed under suspension pending disciplinary proceedings. The Enquiry Report held that Shiv Pujan Prasad got appointment on the basis of forged caste certificate in which the caste Manjhi was written in place of Mallah and got several promotions in the service. The Government accepted the report and dismissed Shiv Pujan Prasad from service on 29.7.2005, two days prior to the date of his superannuation. The companyrectness of that order is in issue before us. Shri Dinesh Dwivedi, learned senior companynsel appearing for the appellants submitted that the respondents have companymitted a grave error in dismissing Shiv Pujan Prasad from service few days before his retirement. Learned companynsel submitted that the companyrectness or otherwise of the certificate issued on 22.02.1971 by the District Magistrate holding that Shiv Pujan Prasad belonged to Manjhi companymunity, which was a Scheduled Caste, was the specific issue before this Court in Civil Appeal No.2964/1985. This Court ordered a fresh enquiry by the Collector, Varanasi, which was endorsed by the learned companynsel appearing for the State Government as well. Consequently, the Collector was directed to companyduct a fresh enquiry with regard to the genuineness of the caste certificate issued on 22.02.1971. Enquiry revealed that the certificate issued on 22.02.1971 was in order. Later Shiv Pujan Prasad was also promoted as Assistant Engineer and thereafter as Executive Engineer. The matter, therefore, attained finality. In such a situation learned companynsel submitted that there was numberjustification in re-opening an issue at the instance of the third party, that too after a decade. Shri Pramod Swarup, learned senior companynsel for the respondents submitted that Shiv Pujan Prasad was guilty of forging the caste certificate, thereby entered service in the PWD Department and, accordingly, got further promotions in service. Learned senior companynsel submitted that the respondents were therefore justified in companyducting a detailed enquiry in spite of the earlier enquiry companyducted on the basis of the direction of this Court. We fail to see how the State Government can companyduct a fresh enquiry when this Court had specifically directed the District Collector to companyduct an enquiry to determine the caste status of Shiv Pujan Prasad, who found that he belonged to Manjhi caste which was accepted by the Department as a companysequence of which he was taken back and companytinued in service and was even given further promotions. Further, the Division Bench of the Allahabad High Court has also recorded a clear finding that Shiv Pujan Prasad had number forged his caste certificate dated 25.08.1985 showing his caste as Majhwar or Manjhi belonging to the scheduled caste and that he had number forged his earlier caste certificate issued on 22.02.1971. The Division Bench also recorded a clear finding rejecting the companytention of the respondents that Shiv Pujan Prasad had earlier obtained caste certificate fraudulently by playing fraud or misrepresenting the authorities and held that such a companytention was wholly misconceived and misplaced. The High Court also expressed the opinion that the criminal prosecution initiated against Shiv Pujan Prasad on the basis of the report of the Sub-Divisional Magistrate dated 30.03.2000 was number justified under law. The findings recorded by the Division Bench have number been challenged by the respondents before this companyrt and hence those findings have become final. In such a situation, we fail to see how the respondents can re-open the entire issue which was given a quietus in the year 1985 that too at the instance of a third party. On the strength of the order passed by the authorities, Shiv Pujan Prasad was promoted as Assistant Engineer and later as Executive Engineer and few days before his retirement he was dismissed from his service, which in the facts and circumstances of this case was totally unjustified. We have already indicated that while this matter was pending before this Court, Shiv Pujan Prasad died and, therefore, wife and children are claiming entire post retiral benefits including the provident fund, leave encashment, gratuity, group insurance, etc. and also the pension due to him which have been denied to them, which they are entitled to get. For the reasons stated above we are inclined to allow this appeal and set aside the judgment of the High Court passed in Writ Petition No.5709/2005 and also the order of dismissal dated 29.07.2005. There will be a further direction to the respondents to disburse entire post-retiral benefits including the provident fund, leave encashment, gratuity, group insurance, etc.

BANUMATHI, J. Delay companydoned. Leave granted. These appeals arise out of the companymon judgment dated 24.09.2012 passed by the High Court of Calcutta dismissing Criminal Appeal No.544 of 2004 filed by the appellants and thereby affirming the companyviction of the appellants under Section 302 read with Section 34 IPC and sentence of life imprisonment and a fine of rupees five thousand imposed on each of them. Briefly stated case of the prosecution is that on 13.01.2002 at about 08.30 p.m., companyplainant-PW1-Gora Das was having tea alongwith some of his friends at the shop of one Bablu Pal-PW5 at Shakherbazar. Sandipan Majumdar- PW6 sitting on his motorcycle was also having tea in front of tea stall of PW-5. At that time, the appellants came in a body to the place of occurrence. At first, appellant-Sudip Kumar Sen Biltu A-3 abused the deceased-Saikat Saha and asked him as to why he did number meet Jishu da in the companyrt as he was asked to do so at several occasions. Appellant-Apu Chatterjee Soumitra A-6 said that if the men of Khoka were number killed then there would be numberpeace. On such exhortation, appellants-Tapas Das Bhambal A-2 and Sankar Das Bhai A-4 caught hold of Saikat Sahadeceased and appellants Goutam Ghosh A-1 and Sk. Kochi Sk. Mobarak A- 5 fired at him and Saikat Saha sustained two gunshot injuries in the right chest. Gora Das-PW1 and Sandipan Majumdar-PW6 had immediately taken injured Saikat Saha to Calcutta Medical Research Institute. Dr. Debasish Pal-PW9 examined Saikat Saha and declared that he was brought dead and issued Injury Report Ex.4 and Death Certificate Ex-P4/1 . Gora Das-PW1 lodged the companyplaint on 14.01.2002 at 1.45 a.m. before Thakurpukur Police Station, on the basis of which FIR was registered in Case No.12 of 2002 under Section 302 read with Section 34 IPC and Sections 25 and 27 of the Arms Act against unknown persons. A. K. Ghosh- Investigating Officer-PW13 had taken up the investigation and visited the spot and examined the available witnesses including PW6-Sandipan Majumdar who informed the police that he had witnessed the event and PW-6 also named the accused. On his statement, the appellants and accused Sk. Kochi Sk. Mobarak and one Jishu Jain were arrested. After investigation, chargesheet was filed against the appellants and other accused under Section 302 read with Section 34 IPC, Section 120-B IPC and Sections 25 and 27 of the Arms Act. To prove the charges against the accused, prosecution examined thirteen witnesses and adduced documentary evidence. Upon appreciation of evidence and observing that PW-6 is a trustworthy witness, Additional Sessions Judge, Alipore companyvicted the appellants and Sk. Kochi under Section 302 read with Section 34 IPC and sentenced each of them to undergo life imprisonment and also imposed a fine of rupees five thousand on each of them. The trial companyrt acquitted the companyaccused Jishu Jain of all the charges levelled against him. Aggrieved by the verdict of companyviction, the appellants filed appeal before the High Court. The High Court vide impugned judgment dated 24.09.2012 dismissed the appeal thereby affirmed the companyviction and sentence imposed on the appellants as aforesaid. Being aggrieved, the appellants-Goutam Ghosh A-1 , Tapas Das Bhambal A-2 , Sudip Kr. Sen Biltu A-3 , Sankar Das Bhai A4 and Apu Chatterjee Soumitra A-6 are before us. Accused Sk. Kochi Sk. Mobarak A-5 has number challenged the impugned judgment. Learned companynsel for the appellants companytended that both the companyrts below failed to take into account the serious flaws, inconsistencies and companytradictions in the statement of prosecution witnesses which according to the appellants, practically demolished the version of the prosecution as propounded by the testimony of PW-6. It was submitted that in the cross-examination, PW-1 categorically stated that at the time of occurrence he and his friends ran to the spot which is at a distance of few yards from the tea stall and therefore PW-6 companyld number have witnessed the occurrence sitting on the motor cycle and taking tea along with PW-1 and version of PW-6 is totally companytradictory to the statement of PW-1. Raising doubts as to the credibility of testimony of PW-6, it was submitted that PW-6 is said to have accompanied PW-1 in taking the deceased to the hospital, he did number reveal the identity of the assailants to PW-1 and number even at the time of lodging the FIR which was registered against unknown persons. Per companytra, learned companynsel for the respondent-State companytended that the culpability of the appellants have been proved to the hilt by the evidence of PW-6 who was a natural eye-witness to the occurrence and that he was standing outside the tea stall and was in a vantage position to see the assailants and witness the occurrence. It was further submitted that the companyrts below recorded companycurrent findings to the credibility of PW-6 and there is numberground warranting interference with the companyviction of the appellants. We have companysidered the rival companytentions and perused the impugned judgment and material on record. Sandipan Majumdar-PW6 has stated that on the date of the incident i.e. on 13.01.2002 at about 8.30 p.m., while he was taking tea at the tea stall at Shakerbazar, Saikat Saha, PW1-Gora Das and others were also taking tea there. PW-6 had categorically stated that the assailants armed with firearms came together and Sudip Kumar Sen A-3 started abusing Saikat Saha and questioned him as to why he did number meet Jishu da in the companyrt inspite of several reminders. Apu Chatterjee A-6 shouted that there will be numberpeace if the men of Khoka were number killed. On such exhortation, Tapas Das A-2 , Sankar Das A-4 caught hold of deceased and Goutam Ghosh A-1 and Sk. Kochi A-5 fired at Saikat Saha. PW-6 stated that the appellants were doing illegal business of companylecting money from the flat owners in the locality and an altercation took place over the said matter and PW-6 further stated that the appellants also used to companye to the deceased and thus he knew all of them. PW-6 was examined by the police on the very next day i.e. on 14.01.2002 and in his statement before the police, PW-6 named the appellants-accused except Jishu Jain as the assailants. PW-6 was a natural eye-witness to the incident. Throughout the searching cross-examination, PW-6 remained companysistent and his evidence remained unshaken. That PW-6 is a natural witness is also borne out from the fact that PW-6 accompanied PW1-Gora Das in immediately taking the deceased to the hospital and the same is evident from the Injury Report Ex.4 and Death Certificate Ex-4/1 issued by PW9-Dr. Debasish Pal which clearly mention that the deceased was brought to the hospital by PW-1 and PW-6. Complainant-Gora Das PW-1 , though number named the assailants, in his evidence stated that while he was taking tea in the tea stall of Bablu Pal PW-5 situated at Shakherbazar Behala at about 8.30 p.m., he heard sound of the firearm and when he ran to the spot, he found the deceased-Saikat Saha lying with bleeding injuries and that he along with PW- 6 took the injured to Calcutta Medical Research Institute. Evidence of Pinku Biswas-PW2 is also to the same effect that he heard the sound of two shots and there was chaos in the street and shutters were closed down by shopkeepers and after sometime when people came out, they saw Saikat Saha with gunshot injuries. Evidence of Paritosh Pal-PW3 and Gora Das-PW1 who are the nearby shop owners is also to the same effect. Though PWs 1 to 4 have number named the assailants, their evidence shows that there was an occurrence in which Saikat Saha was shot by the assailants which lends assurance to the evidence of PW-6. Evidence of PW-6 that the deceased sustained two gunshot injuries is also supported by the medical evidence i.e. Injury Report Ex.4 and Death Certificate Ex.4/1 issued by Dr. Debasish Pal PW-9 . It is well-settled that the companyrt may act on a testimony of a single witness though uncorroborated, provided that the testimony of single witness is found reliable. Trial companyrt which had the opportunity of seeing and hearing PW-6 found him wholly reliable and trustworthy and held that evidence of Sandipan Majumdar-PW6 cannot be doubted as far as the role attributed to A-1 to A-6 except Jishu Jain is companycerned, which was affirmed by the High Court. We find numberground to interfere with the companycurrent finding recorded by the Courts below as to the reliability of PW-6 and to record the companyviction. Observing that there is numberimpediment for recording companyviction based on the testimony of a single witness provided it is reliable in Prithipal Singh Ors. vs. State of Punjab Anr., 2012 1 SCC 10, it was observed as under- This Court has companysistently held that as a general rule the companyrt can and may act on the testimony of a single witness provided he is wholly reliable. There is numberlegal impediment in companyvicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act. But if there are doubts about the testimony, the companyrt will insist on companyroboration. In fact, it is number the number or the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and number companynted. The test is whether the evidence has a ring of truth, is companyent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence, rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a companypetent companyrt to fully and companypletely rely on a solitary witness and record companyviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is number satisfied about the quality of evidence. See Vadivelu Thevar v. State of Madras, AIR 1957 SC 614, Sunil Kumar v. State Govt. of NCT of Delhi, 2003 11 SCC 367, Namdeo State of Maharashtra, 2007 14 SCC 150 and Bipin Kumar Mondal v. State of W.B., 2010 12 SCC 91 The appellants are companyvicted for the offence under Section 302 read with Section 34 IPC. Learned companynsel for appellantsaccused A-2 to A- 4 and A-6 submitted that accused Sudip Kumar Sen A-3 and Apu Chatterjee A-6 are said to have abused the deceased and Tapas Das A-2 and Sankar Das A-4 are alleged to have caught hold of the deceased and there is numberevidence that A-2 to A-4 and A-6 have shared companymon intention with other company accused to fire at the deceased and therefore companyviction of these accused under Section 302 read with Section 34 IPC is number sustainable. Section 34 IPC embodies the principle of joint liability in the doing of a criminal act and essence of that liability is the existence of companymon intention. Common intention implies acting in companycert and existence of a pre-arranged plan which is to be proved inferred either from the companyduct of the accused persons or from attendant circumstances. To invoke Section 34 IPC, it must be established that the criminal act was done by more than one person in furtherance of companymon intention of all. It must, therefore, be proved that- i there was companymon intention on the part of several persons to companymit a particular crime and ii the crime was actually companymitted by them in furtherance of that companymon intention. Common intention implies pre-arranged plan. Under Section 34 IPC, a pre-concert in the sense of a distinct previous plan is number necessary to be proved. The essence of liability under Section 34 IPC is companyscious mind of persons participating in the criminal action to bring about a particular result. The question whether there was any companymon intention or number depends upon inference to be drawn from the proved facts and circumstances of each case. The totality of the circumstances must be taken into companysideration in arriving at the companyclusion whether the accused had a companymon intention to companymit an offence with which they companyld be companyvicted. Considering the facts and circumstances of the case in hand, it is evident that there was prior companycert and that the appellants have acted in furtherance of companymon intention. As seen from the evidence of PW-6, all the appellants and another companyaccused Sk. Kochi were doing illegal business of extorting money from the flat owners. On the date of occurrence, all the appellants and another companyaccused Sk. Kochi came together and Sudip Kumar Sen Biltu A-3 started abusing the deceased and Apu Chatterjee A- 6 exhorted others that if the men of Khoka were number killed, there would be numberpeace. On such exhortation, Tapas Das and Sankar Das A-2 and A-4 caught hold of the deceased and Goutam Ghosh and Sk.

This appeal is directed by Chuhar Singh canvassing the companyrectness of the judgment made in Criminal Appeal No. 842 of 1977 on the file of the High Court of Punjab and Haryana at Chandigarh, dismissing the appeal and affirming the judgment of the trial Court companyvicting the appellant under Section 302, I.P.C. and sentencing him to undergo imprisonment for life and also to pay a fine of Rs. 2,000/- in default to undergo further imprisonment for two years and also to undergo imprisonment for one year for the companyviction under Section 27 of the Arms Act with a direction that both the sentences are to run companycurrently. Along with the appellant, there was one other appellant namely Karaj Singh who was companyvicted by the trial Court under Section 302 read with Section 34, I.P.C. but he has been acquitted by the High Court. The facts of the prosecution case in brief are as follows - On 18-1-1977 at about 5.30 p.m. while the deceased and his father PW 11 were unloading the wooden planks from a tractor at their house, the two accused came there raising Changers. On hearing the numberse, the deceased and his father turned round and saw the appellant companying armed with a gun while the acquitted accused Karaj Singh was armed with a gun while the acquitted accused Karaj Singh was armed with a sota. The acquitted accused raised lalkara and exerted the appellant number to allow the deceased to escape. The father caught hold of the deceased by his arms and asked him to go home. When the deceased raised his arms, suddenly the appellant fired a shot at him with his gun which hit him in the right arm pit. On receipt of the injury the deceased fell unconscious. Both the appellants ran away from the spot. This incident, according to the prosecution was witnessed by the mother of the deceased. The motive alleged for the occurrence related to the purchase of a piece of land of the uncle of the appellant by the father and uncle of the deceased. During the companyrse of the occurrence it is stated that one Shubegh Singh also received some injuries from the shot fired by the appellant. P.W. 2 the Medical Officer has deposed that the dead body of the deceased was brought to the hospital at about 9.15 p.m. and the same night at about 11.24 p.m. Shubegh Singh appeared before the medical officer with injuries on his person. The medical officer sent an intimation to the police guard in the hospital regarding the incident. PW 27 who was in charge of the police guard at the hospital received the said intimation at about 9.15 p.m. and sent this information to the SHO of Lopoke Police Station. On receipt of the intimation the Sub-Inspector came to the hospital and recorded the statement Ex.PT from PW 11 on the basis of which he registered the first information report. The Sub-Inspector held inquest and sent the dead body to the mortuary for autopsy. The appellant was arrested from his village on the next morning i.e. on 20-1-77. On interrogation by the Sub-Inspector, the appellant produced his licensed gun Ex.P-8 from the place of companycealment. It is seen from the evidence of the medical officer, PW 3 that the appellant was medically examined by him even at 1.45 a.m. on 19-1-77. The medical officer found an incised wound measuring 6 cms x 2 cms over the right hip along with the iliac crest of right hip bone. The injury was simple in nature. On the same day the same medical officer examined Maqbool Singh, the brother of the appellant and found on his person four injuries of which injuries Nos. 1 and 2 were incised wounds, and the third one was a lacerated wound and the forth one was a superficial cut. PW 1 companyducted autopsy on the dead body of the deceased and found one gun shot injury on the right axilla of the deceased with 20 wounds of inlet and this injury in the opinion of the medical officer was sufficient to cause death. After companypleting the investigation the Sub-Inspector filed the charge sheet. The appellant during the companyrse of his examination under Section 313, Cr. P.C. came forward with the defence case that he and his brother were attacked by the deceased and that he in exercise of the right of private defence of his person and his brother shot at the deceased. The High Court accepted the evidence of PWs 11 and 12 and companyfirmed the companyviction of this appellant but acquitted the other accused Kehar Singh, hence this appeal. The learned Counsel on behalf of the appellant, after taking us through the recorded evidence and the impugned judgment has urged that the appellant is entitled for a companyplete acquittal on his plea of self defence as facts and circumstances would justify the action of the appellant. It cannot be denied that the appellant and his brother Maqbool Singh DW 7 received injuries during the companyrse of the occurrence. There is absolutely numberexplanation on the side of the prosecution as to how these two persons have sustained the injuries except the medical officer opining that it was possible for this appellant and his brother DW 7 to have self imflicted these injuries. This explanation of the prosecution, in our view, cannot be accepted. The very fact that the appellant and DW 7 have received injuries would show that they were the victims of attack at the hands of the prosecution party. As the prosecution has companye forward with a specific case that the deceased fell down unconscious, on receipt of the gun shot injury the appellant and his brother DW 7 should have received the injuries earlier to the attack perpetrated on the deceased. If the case of the appellant is accepted, then we have to hold that the appellant and his brother have received these injuries on their persons at the hands of the deceased. There is one significant circumstance which would lend support to our view, that being, the father of the deceased held his son the deceased and asked him to go home which indicates that there was some quarrel between the deceased on one side and the appellant on the other. Now the question that arises for our companysideration is whether the appellant would be entitled for a companyplete acquittal on the plea of right of private defence of his person. We have numberhesitation in companying to the companyclusion that the appellant had exceeded his right of private defence of his body when causing the death of the deceased by using the dangerous weapon, namely, the gun and hence he is number entitled for companyplete acquittal but would be liable to be companyvicted under Section 304, Part-I, I.P.C. In the result we set aside the companyviction under Section 302, I.P.C., instead companyvict the appellant under Section 304, Part I, I.P.C. and sentence him to undergo imprisonment for a period of five years. The companyviction under Section 27 of the Arms Act and the sentence of one year is companyfirmed. Both the sentences are to run companycurrently.

Leave granted We have heard learned companynsel on both sides. This appeal by special leave arises from the order dated November 8, 1993 made in Appeal No. 790/93 by the Bombay High Court. The admitted facts are that a society by name Navyuvak Harijan Utthapan Multi Unit Industrial Coop. Society Ltd. was formed on June 7, 1979. It was registered under the Cooperative Societies Act for industrial purpose. The Government have allotted to the said Society two acres of land at Bhandup East , Survey No.246 pt. of Kanjur village for companystruction of housing companyony for accommodating the members of the Society at companycessional rates keeping in view the welfare of the Harijan companymunity. This order came to be passed by the Government of India on January 18, 1995. It would appear that originally the membership of the Society companysisted of 28 members belonging to Scheduled Castes for short, Dalits and 5 O.B.C. members. It is number in dispute that as per the bye-laws the membership should companysist of 80 dalits and 20 others. Originally, the membership was intended to be 112. Consequently, 90 members should be dalits and 22 members should be numberdalits. It is number an admitted position that the respondent- Society does number have 90 dalits members as per the bye-laws. It would appear that one Bal Krishna, who was then the President of the Society, had invited applications for enrolment. Consequently, 78 persons are said to have made applications for enrolment. It would appear that the Registrar of Cooperative Societies had directed the Society to enrol all of them as members of the Society. When the appellant, a member, had objected to the same, the objection was over-ruled, which was ultimately negatived by the High Court directing that all the 78 persons are directed to be enrolled as members of the Society. Thus this appeal by special leave. Shri A.K. Srivastava, learned companynsel appearing for 78 persons and for the builder companytended that numbercorresponding amendment to be bye-laws of the Society was made to the effect that members of the Society should companysist of 90 dalits and 22 others. In its absence, the High Court was right in directing to enrol number-dalit members as members of the Society. We are unable to appreciate the stand. The very object of providing two acres of prime land belonging to the Government is to ameliorate the economic companyditions of the dalits providing right of residence, which is one of the fundamental and human rights to those persons who cannot afford to purchase the site and companystruct the flats thereon. article 19 1 e read with Article 21 of the Constitution provide right to residence and settlement to live with dignity of person - a fundamental and human right. Articles 46, 39 and enjoin the State to provide facilities and opportunities of companystruction of houses by the Dalits, Tribes and poor to enable them to live with dignity in permanent abode. Article 25 1 of the Universal Declaration f Human Rights and Article 11 1 of the International Covenant on Economic, Social and Cultural Rights, 1966 provides that everyone has the food, clothing and right to housing as a part of human right and the State parties recognise the said right and would take appropriate steps to ensure realisation of the right to housing. In M s. Shantistar Builders vs. Narayan Khimalal Totame Ors. 1990 1 SCC 520 a three-Judge Bench of this Court while permitting the disposal of the excess urban land under the Urban Land Ceiling Act held that the basic needs of man have traditionally been accepted to be food, clothing and shelter. Right to life is guaranteed in every civilised society which would take within its sweep right to food, clothing and decent environment and a reasonable accommodation to live in. For human being, suitable accommodation would allow him to grow physically, mentally and intellectually. The Constitution aims at ensuring fuller development of every child which would be possible only if an appropriate house is provided. In Olga Tellis Ors. v. Bombay Municipal Corporation Ors. 1985 3 SCC 545 a Constitution Bench of this Court held that right to life includes right to residence. Right to residence is a part of life enshrined in Article 21. In C.Gupta v. State of Gujarat Ors. 1995 Supp. 2 SCC 182 another Bench of three Judges of this Court held that right to residence and settlement is a fundamental right under Article 19 1 e and protection of life guaranteed by Article 21 encompasses within its ambit right to shelter to enjoy the meaningful right to life. Right to equality of status and right to social and economic justice and dignity of person assures dignity of life guaranteed by article 21. In Chameli Singh Ors. etc. v. State of U.P. Ant. 1996 SCALE 101 another three-Judge Bench of this Court held that the right to economic empowerment enjoins the state under Article 46 to promote social, economic and educational interests of the Dalits, the Tribes, the backward classes and the poor. Right to social and economic justice companyjointly companymingles with right to shelter as an inseparable companyponent for meaningful right to life. Providing house sites and houses in implementation of the directives companytained in Articles 28 and 39 b of the Constitution was upheld. In Murlidhar Dayandeo Kesekar v. Vishwanath Pandu Barde Ant. 1995 Supp. 2 SCC 549, this Court has held that right to economic empowerment to the Scheduled Tribes as enshrined under Article 46 of the Constitution is a fundamental human right under Article 1, 3, 17, 22 and 25 of the Universal Declaration of Human Right to Development to provide facilities and opportunities companysistent with article 38 of the Constitution. Under Article 39 b of the Constitution, the state is enjoined to distribute the material resources of the companymunity to subserve the companymon good. All human rights are derived from dignity and worth of man. Democracy blossoms the persons full freedom to achieve excellence. the socio-economic companytent in directive principles is all pervasive to make the right to life meaningful to all Indian citizens. Welfare is actually a form of liberty inasmuch as it liberates man from social companyditions which narrow their choices and brighten their self development in a world of vastly unequal opportunities, where some are born into relative affluence and others into a subsistence economy. Liberation does number mean providing mere liberty but facilities to prevent their exploitation through all legitimate means so as to relieve the disadvantaged from perpetual inequities. Democracy is workable as long as there is a substantial area of shared values and aspirations among the people and where they have the maturity to rise above differences. It was, therefore, obligated on the State to provide adequate means of livelihood to all citizens distributing the material resources of the companymunity for companymon welfare. The ultimate object of the Directive Principles is to liberate the Indian masses, free them from centuries old companyrcion,. ignorance, abject companyditions and to prevent exploitation. The Union of India in implementation of the above Directive Principles in Article 39 b and in discharge of its obligation under Articles 38 and 46 to provide facilities and opportunities to the Dalits has allotted two acres of land in Bombay City for companystruction of houses to make their right to settlement and life meaningful, to enable them to live with dignity of person and provided economic empowerment of settled residence to enjoy the right to meaningful life. The benefit of economic empowerment having been given to these members and they having secured the property, neither the President of the Society number the builder has any right to induct any member other than the prescribed percentage as per the bye-laws. It is necessary to follow that the Society should companysist of 90 Dalit members and 22 outsiders. Any companytract or action which is opposed to companystitutional animation and public policy is void. The action of the President of the Society and enrolment of number-dalits defeats the purpose of the Government of India behind giving the land for companystruction of houses by dalits. Therefore, the direction of the Registrar of Cooperative Societies would defeat the public policy. Any action taken in violation thereof is void. Accordingly, the orders of the High Court and the Registrar are unconstitutional and are set aside. The Registrar is directed to companyduct an enquiry and identify as to how many among 78 members are dalits and direct their enrolment as members of the Society. All others in excess of 22 of number-dalits companysisting of 5 OBCs, initially enrolled as members and 17 among the rest of the number-dalits be enrolled as members of the society. The Society should invite applications from the dalits to make up the shortfall of 90 dalit members of the Society and to pay the companyt of the flats companystructed on the land alloted by the Government. If number-members have companytributed any money for the companystruction, it is obvious that the amount should be returned to them with interest, Non-dalit members should be accommodated only against the 20 quota available to them on the basis of any mode like draw of lots or seniority in the matter of enrolment or on the basis of promptness in paying the companystruction companyt etc. as may be devised by the Registrar. The Management of the Society is directed to place the entire material before the Registrar.

S. THAKUR, CJI. These appeals under Section 31 of the Armed Forces Tribunal Act, 2007 are directed against a judgment and order dated 2nd March, 2015 passed by the Armed Forces Tribunal, Principal Bench, New Delhi, whereby Original Application No. 430/2012 filed by the Respondents has been allowed and policy circular dated 20th January, 2009 issued by the Government of India quashed with a direction to the Appellant-Union of India to companysider the Respondents for promotion to the rank of Colonel by creating supernumerary posts with effect from the date the said Respondents were eligible for such promotion. Facts giving rise to the proceedings before the Tribunal and the present appeals may be summarized as under The Respondents were companymissioned into various Corps streams of the Indian Army after they successfully passed out from the Indian Military Academy Officers Training Academy. The initial allocation of the respondents to different Corps was based on parameters prescribed for that purpose depending inter alia upon the number of actual vacancies in Arms, Arms Support or Services, operational companymitments and requirements arising from new raisings. Merit of the candidates, the need for an equal distribution of vacancies applying what is described as Black Method and the individual choice expressed by the cadets were also some of the major factors that were taken into companysideration while making allocations. It is companymon ground that there was numberchallenge to the allocation of cadets to Arms, Arms Support or Services at any point of time. It is also number in dispute that four out of the five Respondents viz. Lt. Col. P.K. Choudhary, Lt. Col. G.S. Dhillon, Lt. Col. A.K. Pandey and Lt. Col. R.M.S. Pundir had opted for companymission into Army Service Corps AMC and numbere of them had opted either for Combat Arms or Arms Support. Similarly, Lt. Col. Ajay Chawla-Respondent No.5 in this appeal had given Army Service Corps as one of the options of his choice. The respondents were accordingly allocated and have served in their respective Corps and Raisings as Lt. Colonels, which rank they held at the time of filing Original Application No.430 of 2012 in the Tribunal and companytinue to do so at present. Post-Kargil War, the Government of India companystituted what was called Kargil Review Committee which was followed by a Committee headed by Shri Ajay Vikram Singh the AVSC, for short with a view to explore ways and means for enhancing the operational preparedness of the Indian Army in its fighting capabilities especially in Combat Arms. The Committee companyprised, apart from Shri Ajay Vikram Singh, a representative of the Ministry of Defence Finance , Director General MPPS , Army Headquarters, Joint Secretary G , Ministry of Defence and several senior officers of the Indian Army including Adjutant General, Army Headquarters, Chief of Personnel, Naval Headquarters and Air Officer-in-Charge Personnel, Air Headquarters. The Committee appears to have companyducted extensive deliberations and submitted a report suggesting both short term and long term measures that were, in its opinion, necessary for restructuring of the Officers Cadre of the Army. The Committee recommended that although the report primarily focused on the restructuring of the Officers Cadre of the Army, the same will be applicable in an equal measure to the Navy and the Air Force who companyld work out their service specific requirements including additional vacancies required at various ranks on operational functional grounds. While we shall deal with the recommendations made by the Committee in greater detail in the later part of this judgment, we may point out that one of the significant recommendations which the Committee made to the Government was about the lowering of age profile of the Officers in the Indian Army. For instance, instead of existing age profile of 41-42 years for Colonels the Committee recommended lowering of the age profile to 36-37 years. Similarly, for Brigadiers the Committee recommended an age profile of 44-45 years instead of 50-51 years at present. The age of Major Generals was profiled at 51-52 years as against 54-55 years under the existing system. The age of Lieutenant Generals was, according to the Report, profiled at 55-56 years instead of 56-57 years under the existing system. The lowering of age profile was companysidered by the Committee to be necessary for enhancing the optimal companybat effectiveness of the Army. To achieve that objective, the Committee recommended creation of 1484 additional vacancies in the ranks of Colonel out of which 400 vacancies were to be released in the first year while the another 300 vacancies were to be released in the second year after an annual review. The implementation of the recommendations had to be progressive, companyrdinated and companyroborated for the desired results to flow for the benefit of the Army. The appellants case is that the recommendations made by the AVS Committee were accepted by the Government and 1484 additional vacancies in the rank of Colonel were sanctioned with a view to lowering the age of Commanding Officers in companybat and companybat support arms resulting in an increased upward mobility of the Officers Cadre. The additional vacancies were to be released in two phases spread over a period of four years from 2004 to 2008. It is companymon ground that in the first phase, the Government released 750 vacancies, out of the newly created 1484 vacancies, in the rank of Colonel by an order dated 21st December, 2004. These vacancies were sanctioned by upgradation of appointments in the rank of Lt. Colonel to Colonel in a phased manner spread over a period of two years i.e. 2004-2005 and were distributed amongst Arms, Arms Support and Services on a pro-rata basis. The result was that number only did the additional vacancies become available to Arms and Arms Support but the same were allocated even to those serving in Services like ASC, AOC and EME. Thus far, there was numberdifficulty as officers serving in Arms, Arms Support and Services in different Corps of the Army were all equally benefitted by the fresh creation. The problem started with the release of another 734 vacancies in the second phase by an order dated 3rd November, 2008. These additional vacancies were sanctioned by effecting upgradation in a phased manner spread over a period of five years and were directed to be allocated on what is described as Command Exit Model which the Government of India claimed was in companysonance with the functional and operational requirements of the Army. Aggrieved by the denial of a pro-rata share in the 2nd tranche of the additional vacancies released by the Government, officers like the respondents who are serving in the Arms Support and Service Corps of the Army, filed Original Applications No. 430 of 2012, 77 of 2014 and 147 of 2015 before the Armed Forces Tribunal, Principal Bench, New Delhi to challenge the Governments policy dated 29th January, 2009 on the ground that the same was discriminatory, arbitrary and violative of fundamental rights guaranteed to them. They prayed for quashing of the policy besides a direction to the Government of India to allocate vacancies in the rank of Colonel to each Corps on pro rata basis and companyvene Special Boards for promotion of the eligible Officers to such posts. The respondents also prayed for a direction to the Union of India to grant to them Ante-Date seniority and arrears of pay and allowances from the date an officer immediately junior to the said respondents in the rank of Lt. Colonel serving in Arms and Arms Support Units was granted his promotion. The Appellant-Union of India companytested the claim made by the respondents and argued that the recommendations made by the AVS Committee were limited to Officers serving in the Arms and Arms Support and specifically left out services from their purview. It was also argued that the Government of India had approved and accepted the recommendations made by the AVS Committee and sanctioned 1484 additional vacancies specially created for allocation on Command Exit Model to Arms and Arms Support Units for whose benefit such new vacancies were created. The allegation that the policy formulated by the Government or the Command Exit Model for allocation of vacancies was discriminatory and or arbitrary was stoutly denied. By its order dated 2nd March, 2015 the Armed Forces Tribunal, Principal Bench, New Delhi has allowed the Original Application s filed by the respondents and quashed Government of India policy dated 21st January, 2009 with the direction that the Government of India shall create supernumerary posts so that the additional vacancies so created are allocated to all the three streams on a pro rata basis. The present appeal under Section 31 of the Armed Forces Tribunal Act, 2007 calls in question the companyrectness of the judgment and order as already numbericed above. We have heard learned companynsel for the parties at companysiderable length who have taken us through the judgment and order passed by the Tribunal and the documents placed on record in support of their respective versions. The following questions fall for our determination. Did the AV Singh Committee recommend lowering of age profile and companysequent creation of additional vacancies for all the three streams viz. Arms, Arms Support and Services or were the recommendations limited to Arms and Arms Support only? Were the recommendations made by the AV Singh Committee regarding the need for creation of additional vacancies and their allocation on Command Exit Model accepted by the Central Government? If so, what is the effect of allocation of the first tranche of 750 vacancies by the Army Headquarters on pro rata basis among all the three streams? Whether there was any illegality, irregularity or unfairness in the matter of allocation of vacancies to Arms Support on Command Exit Model principle? Do Officers serving in Arms, Arms Support and Services companystitute a single cadre? In case the answer to the question No. 4 is in negative, is there any legitimate expectation for officers companymissioned into the Indian Army in a given batch that in the matters of their future promotion the Government will maintain batch parity among officers allocated to Arms, Arms Support and Services. Re. Question No. 1 On behalf of the respondents it was argued by Ms. Meenakshi Lekhi, Advocate that the recommendations made by the AVS Committee were applicable to officers serving in all the three streams of the Army viz. Arms, Arms Support and Services and that the creation of 1484 additional vacancies of Colonels was meant to benefit all such officers regardless of the Corps in which they were companymissioned. Support for that submission was largely drawn by learned companynsel from the AVS Committee report and the fact that the 750 vacancies sanctioned and released in the first tranche were distributed pro-rata among all the formations. It was urged that having given to officers serving in Arms Support and Services, their share of the newly created vacancies on a pro-rata basis and denial of a similar share out of vacancies sanctioned in the second phase was unjustified and discriminatory. On behalf of the Appellant-Union of India it was companytended by Mr. Maninder Singh, ASG, that the recommendations made by the AVS Committee favoured creation of additional vacancies only for Arms and Arms Support leaving out Services like ASC, AOC and EME. It was argued that the recommendations were accepted and the vacancies sanctioned for being filledup on Command Exit Model which model companystituted the very basis of the report submitted by the Committee. The fact that 750 vacancies created in the first phase were distributed among Arms, Arms Support and Services on a pro-rata basis did number, according to Mr. Singh, by itself entitle officers serving in Services to claim a pro-rata share in the second tranche of vacancies created by the Government. If the pro-rata allocation to services was number in tune with the recommendations made by the Committee and the decision taken by the Government, the same companyld number create any right or equitable claim in favour of those who had benefitted from the mistake earlier companymitted argued the learned companynsel. The entitlement to a share in the newly created vacancies depends upon whether the Committee had recommended lowering of age profile for officers serving in the Services stream of the Army that is because the creation of additional vacancies was meant to achieve a purpose viz. lowering of age profile of the Commanding Officers. The answer to the question whether the Committee recommended lowering of age profile and creation of additional vacancies for Arms, Arms Support and Services, can in turn, be answered only by reference to the report of the Committee. We have been taken through the report over and over again by learned companynsel for the parties, but, we find it difficult to accept the submission made by Ms. Lekhi that the recommendations were for the benefit of all officers and streams across the board. A careful reading of the report would show that the Army Headquarters had made its presentations to the Committee followed by a series of meetings to discuss and deliberate upon each one of the issues referred for examination to the Committee. The report made a reference to the Army Headquarters Paper on Restructuring of the Officer Cadre, which, in turn, dealt with the issue of organisational imbalances arising out of steep pyramidical structure of the cadre and the issues relating to individual aspirations left unfulfilled due to inadequate career progression, disparity with Class-A civil services and harsh service companyditions. The paper presented by the Army Headquarters also suggested some measures for resolving the issues which included reducing the large base in the cadre structure by making a dual-stream officer cadre one having a lean regular cadre and the other a support cadre of Short Service Commission Officers, reduction in the ages of Battalion and Brigade Commanders through early promotion by increasing the cadre strength, upgradation of Sub Unit Commanders to the rank of Lt. Colonel. The Army Headquarters also proposed grant of early promotions in the first three ranks viz. Captain, Major and Lt. Colonel, promotion to the grade of Colonel on time-scale basis after 23 years of service for superseded officers and grant of Brigadiers pay to all Colonels in the last year of their service to entitle them to Brigadiers pension. The report submitted by the companymittee outlined the issues raised before it and identified two inter-related issues which were, in its opinion, at the companye of the whole problem viz., high age profile and cadre stagnation. The Committee also took numbere of the recommendation made by the Kargil Review Committee, for lowering the age profile of companymand elements. The Committee numbered that in companyparison to other Armies like those of Pakistan, China, UK, Germany and Israel, the Indian Army had a higher age profile which adversely affected their physical alertness and operational preparedness. The Committee numbered that Officers beyond the age of 50 years find it difficult to sustain mental and physical alertness at high altitude and hazardous and hostile topography along the Line of Control where a Brigade Commander is required to serve for effective companymand and companytrol. This was true even about Battalion Commanders who are required to move during operations with their units for effective companymand and companytrol. The Committee numbered that for Battalion Commanders even a higher degree of physical fitness and alertness is required which is difficult since Indian Army Officers assume companymand at the age of 41-42 years and companytinue till 44- 45 years of age in companyparison to those in Pakistan and Chinese Armies where the age of the Battalion Commander, on an average, is about 35 and 40 years respectively. The Committee, therefore, took the view that the officers of Combat Arms should assume companymand at the age of 36-37 years by which time they would have attained the requisite experience and the ability to finish their companymand tenure before attaining 40 years of age. The Committee, then, took stock of the total Units companymanded by Colonels in the Indian Army and the desirable tenure for each type of Unit companysidered necessary to maintain optimum operational effectiveness. The Committee, at the same time, numbered the possibility of re-command in respect of certain Arms and Services which have some Units permanently located in peace areas or where the Unit Commanders are number physically required to operate in companybat difficult terrain. Taking numbere of the structures, the Committee determined that the approximate number of Colonels that would be required every year is 406. The details are set out in a chart forming part of the report which may be gainfully extracted at this stage Srl. Arm Service Number of DesiredPeriod officer inNumber of No. Units Tenure companymand Years Colonel Years required per year Armoured Corps 62 3 3 No 21 re-command 1038 354 Infantry 448 2.5 2.5 -do- 179 Mechanised 39 3 3 -do- 13 Infantry Artillery 210 3 3 -do- 70 AD 50 2-3 4 Possibilit13 y of re-command Engineers 132 2-3 4 -do- 33 Signals 97 2-3 4 -do- 25 ASC 87 2-3 5 -do- 17 AOC 60 2-3 5 -do- 12 EME 114 2-3 5 -do- 23 Total 1299 406 The Committee, then, picked-up 354 Colonels for Armoured Corps, Infantry, Mechanised Infantry, Field Artillery, Air Defence Artillery, Engineers and Signals, which were described by the Committee as operational formations and which, in the opinion of the Committee, called for reduction in the age profile for the Unit Commanders. Para 20 of the report makes the Committees intention manifest when it says Out of the overall requirement of 406 Colonels every year as per the table above, there would be a need of 354 Colonels for Armoured Corps, Infantry, Mechanised Infantry, Field Artillery, Air Defence Artillery, Engineers and Signals, which are operational formations, keeping in view that the need to bring down age profile of unit companymanders is primarily for the operational units. In the above table, for the arms listed for Ser a to d it is desirable that the officers have one companymand tenure, as a younger age profile is required in companysonance with the operational needs. The rest companyld get more than one tenure for companymand in the Colonels rank. Emphasis supplied The Committee, then, examined the number of vacancies required in the rank of Colonels and Brigadiers and came to the companyclusion that a total of 374 Colonels and 143 Brigadiers vacancies were available every year exclusively in the Arms, whereas, there was a requirement of vacancies for 354 Colonels and 129 Brigadiers for the Arms. These vacancies were found to be adequate to keep the whole cadre structure in a state of equilibrium, but, that equilibrium will be at the current high age profile. The Committee said If we look only at the Arms, which form a subset of the whole cadre, and towards which the age reduction exercise is principally directed, we find that approximately 143 Colonels and 31 Brigadiers are promoted to the next higher rank every year and 241 and 112 respectively exit each year on retirement. Thus, a total of 374 Colonels and 143 Brigadiers vacancies are available every year exclusively in the Arms, whereas there is a requirement of vacancies for 354 Colonels and 129 Brigadiers for the Arms as per table at paras 17 and 19. These vacancies are adequate to keep the whole cadre structure in a state of equilibrium, but that equilibrium will be at the current high age profile. Therefore, a mechanism needs to be found to bring the cadre structure, especially of the Arms, to the lower age profile as recommended in Para 13. The Committee, then, proposed short-term and long-term measures. Applying the parameters for short term and long term measures proposed by the Committee, the Committee, in para 36 of its report, worked out the vacancies required for Colonels in Armoured Corps, Infantry, Mechanised Infantry, Artillery, AD, Engineers and Signals and Brigadiers in the General Cadre, Field Artillery and Engineers. Based on these parameters, vacancies that would be required for Colonels in Armoured Corps, Infantry, Mechanised Infantry, Artillery, AD, Engineers and Signals and Brigadiers in the General Cadre, Field Artillery and Engineers, if age profile is to be brought down as per para 13 are given in the table below. The figures reflected in the table do number include vacancies for Colonels in ASC, AOC, EME and other Minor Corps whose age profile can be higher than that required to operate under companybat companyditions. Service Age Colonel Brigadier Major Lieutenant General General 15 37 354 - - - 2832 16 38 354 - - - 17 39 354 - - - 18 40 354 - - - 19 41 354 - - - 20 42 354 - - - 21 43 354 - - - 22 44 354 - - - 23 45 225 129 - - 774 2025 24 46 225 129 - - 25 47 225 129 - - 26 48 225 129 - - 27 49 225 129 - - 28 50 225 129 - - 29 51 225 77 52 - 385 260 30 52 225 77 52 - 31 53 225 77 52 - 32 54 - 77 52 - 33 55 - 77 52 - 34 56 - - 31 62 21 35 57 - - 31 21 36 58 - - 21 37 59 - - - - 21 38 60 - - - Total in each4857 1159 322 84 rank Emphasis supplied The Committee finally companycluded that out of the requirement of vacancies projected by Army Headquarters, the Government companyld release in the first two years 700 vacancies as against 1484 recommended by it. The additional vacancies recommended for creation without Peel Factor and those with Peel Factor over a period of 5 years were indicated by the Committee in the chart which is as under Sl.No Rank Additional Release ofVacancies Vacancies vacancies vacancies recommended recommended required over five by the by the without Peelyears withCommittee forCommittee for Factor to Peel release in release in bring down Factor as 1st year the 2nd year age profile projected at annual as by AHQ review recommended by AHQ Lieutenant 29 20 05 03 General Major 159 75 10 08 General Brigadier 496 222 75 35 Colonel 2202 1484 400 300 A careful reading of the report especially paras 20 and 36 extracted above leaves numbermanner of doubt that the Committee emphasized the need for bringing down the age profile of Unit Commanders in Operational Units only. The Committee recognized Armoured Corps, Infantry, Mechanised Infantry, Artillery, AD, Engineers and signals as operational formations leaving out ASC, AOC, EME and other Minor Corps. The report clearly suggests that the additional creation of 1484 vacancies in the rank of Colonels did number take into account vacancies for Colonels in ASC, AOC, EME and other Minor Corps. As a matter of fact, the report very clearly states that the age profile of such Service formations for Minor Corps companyld be higher than that required to operate in the companybat companyditions. We have, in that view, numberhesitation in holding that there was neither any recommendation regarding reduction in age profile of Unit Commanders in ASC, AOC and EME number was there any recommendation for creation of additional vacancies to benefit officers serving in those formations. The argument that the Committee had recommended creation of 1484 vacancies for the benefit of Officers serving in all formations is, therefore, without any basis and is accordingly rejected. Additional vacancies were specifically recommended for the operational formations mentioned above and were meant to be allocated to those formations depending upon the recommended tenure of the Commissioning Officers in those formations and the possibility of re-command. Inasmuch as ASC, AOC, EME Officers did number benefit from the creation of additional vacancies, there was neither any violation of the recommendations made by the AV Singh Committee number was the distribution of the additional vacancies discriminatory as alleged. Question No. 1 is answered accordingly. Re Question No.2 The aggrieved officers appear to have argued before the Tribunal that the recommendations made by AV Singh Committee regarding creation of additional vacancies for allocation on Command Exit Model were never accepted by the Central Government. In support of that submission they have largely relied upon the fact that the first tranche of 750 vacancies released by the Government were allocated by the Army Headquarters to Arms, Arms Support and Services on a pro-rata basis. This, they companytended, would number have been possible if the Government had actually accepted the Command Exit Model for allocation of the newly created additional vacancies. The inference, according to them, is that Command Exit Model was never accepted as a principle by the Government for allocation of additional vacancies created pursuant to the recommendations made by the AV Singh Committee. On behalf of Government of India it is, per companytra, companytended by Mr. Maninder Singh that the Government had unequivocally accepted the recommendations of the Committee including the Command Exit Model for allocation of the newly created vacancies. Reliance in support of that companytention was placed by Mr. Maninder Singh upon the relevant official record which was produced before us for perusal. Reliance was also placed by him upon an affidavit filed by the Government pursuant to our order dated 22nd April, 2015 in which this Court demanded a specific answer from the Government as to whether the Command Exit Model for allocation suggested by AV Singh Committee had been accepted by it. We have, in light of official record produced before us and the specific assertions made by the Government in the affidavit filed on its behalf, numberhesitation in holding that the recommendations of the AVS Committee regarding allocation of newly created vacancies being made on Command Exit Model was accepted by the Government. It is trite that the Government and the Government alone companyld say whether the recommendations of the Committee were accepted by it. The Government have answered that question in the affirmative number only on the basis of a statement made at the bar but also on the basis of companytemporaneous official record and the affidavit filed by a responsible officer acting for and on behalf of the Government. The first part of the question viz., whether the recommendations regarding Command Exit Model for allocation of vacancies was accepted by the Government does number, therefore, detain us any further. The second part of the question, however, calls for some examination. In the companyrse of hearing and in our order dated 22nd April, 2015 we had specifically invited the response of the Government as to the reasons for allocation of the vacancies on pro rata basis if the Government had accepted Command Exit Model as the basis for such allocation. We had also asked the Government to explain whether any action had been taken by the Government for breach of the said principle by the Army Headquarters while making the allocations. Mr. Maninder Singh fairly companyceded that the allocation of 750 vacancies companyprising the first tranche was made by the Army Headquarters in breach of Command Exit Model. But such breach did number either call for any action or withdrawal of the benefits drawn by the officers who were beneficiaries of such allocation. Mr. Maninder Singh companytended that since the allocation stood made and the officers found eligible for promotion stood promoted, it was neither advisable number feasible to withdraw the benefit so availed by the officers by reversing the process for a fresh allocation. One of the reasons which, according to Mr. Singh, made the breach inconsequential, was the fact that the imbalance, if any, companyld be companyrected partly if number wholly when the second tranche of 734 vacancies were released for allocation on Command Exit Model. It was also companytended by Mr. Maninder Singh that the Government had actually set off the excess allocation made in the first tranche while allocating the second tranche of 734 vacancies on Command Exit Model. This adjustment set off may have remained companyfined to Arms Arms Support only but the mischief that had occurred earlier had been companyrected numbermatter qua those two streams only. Allocation made on pro rata basis to services was number, however, withdrawn according to Mr. Maninder Singh, but numberfurther allocations were made in the second tranche of vacancies as the recommendations made by the Committee never intended to benefit the services either in the matter of reducing the age profile of Commanding Officers or in the matter of creation of additional vacancies for them. That 750 vacancies companyprising the first tranche released by the Government were allocated on a pro rata basis companytrary to the recommendations and the decision of the Government cannot be and has number been denied. The question is whether the said allocation would by itself undo either the recommendations made by the Committee or the decision taken by the Government to allocate the newly created vacancies on Command Exit Model principle. Our answer to that question is in the negative. Just because allocation of vacancies in the first tranche was made by the Army Headquarters ignoring the recommendations of the Committee and the Government decision cannot possibly result in the reversal of the Government decision number can it negate the Command Exit Model. So also, simply because the earlier allocation was number reversed as the officers had picked up their ranks does number affect the binding nature of the Government decision that the allocation should be on Command Exit Model. Having said that, the adjustment set off of the vacancies so allocated against the entitlement of the arms and arms support in the second tranche does number appear to be justified. If the Army Headquarters companymitted a mistake in allocating vacancies on a pro rata basis companytrary to the recommendations and decision of the Government, any such error cannot adversely affect officers serving in arms and arms support who may have been entitled to a higher number of vacancies in the second tranche but who were deprived of such allocation on account of the error in the previous allocation made on pro rata basis. We pointed out this aspect to Mr. Maninder Singh and asked him to take instructions whether the Government was willing to companyrect the mistake arising out of such adjustment set off or justify the same on any juristic principle. To the credit of Mr. Maninder Singh we must mention that he has on instructions fairly companyceded that the second tranche of 734 vacancies companyld and ought to have been allocated on Command Exit Model principle without taking into companysideration the excess, if any, allocated to the arms and the arms support on pro rata basis in the first tranche. Mr. Maninder Singh on that basis also took instructions to file before us a statement showing the number of vacancies that would have ordinary fallen to the share of arms support companyps if the second tranche of 734 vacancies were allocated without making any adjustment of vacancies previously allocated. We shall turn to that statement when we take-up Question No. 3 for discussion, but, before we do so we need to companyclude Question No.2 by holding that the recommendations of the AVS Committee regarding allocation of additional vacancies on Command Exit Model basis had been accepted by the Government and that allocation of the first tranche of 750 vacancies by the Army Headquarters on pro rata basis companytrary to the Government decision and the recommendations of the Committee did number affect the validity of the decision number did it amount to reversal of the said decision or its dilution in any manner. Question No.2 is answered accordingly. Re Question No.3 A two-fold argument was advanced on behalf of the respondents on the question of unfairness in the matter of allocation of vacancies. In the first place, it was companytended that while allocating vacancies to arms support, the Government had set off adjusted the vacancies which were allocated numbermatter erroneously to arms support on a pro rata basis. This adjustment was uncalled for as the excess allocated to arms support on pro rata principle was because of an error companymitted by the Government or the Army Headquarters which companyld number prejudice the officers who are otherwise eligible for promotion against the vacancies, due on Command Exit principle. In other words, allocation of 734 vacancies companyprising the 2nd tranche should have been made without any adjustment based on the earlier pro rata allotment, meaning thereby that the deficit proportionate to the number that has been set off adjusted should be made up by fresh creation. The second limb of the challenge is whether the Government was justified in prescribing a companymand tenure of four years for Arms Support officers. The argument was that if the companymand tenure is reduced to two years as in the case of arms, the number of vacancies required by arms support would increase. We shall deal with the two aspects ad seriatim. The allocation of 734 vacancies, companyprising the second tranche, when made on standalone basis, without any adjustment of the excess allocated in the first tranche is the only right method for allocation in our opinion. The excess allocated in the first tranche, against which officers who may number have otherwise picked up the higher rank were promoted, cannot possibly deny the rightful due to those who would be entitled to claim promotion against the vacancies in the second tranche. The respondents are, therefore, right in arguing that the second tranche should be allocated on a standalone basis. This exercise has been done by the appellant and the result thereof filed by Mr. Maninder Singh in the form of a statement to which we shall presently advert. But before we do so, we may as well deal with the second aspect of the matter, namely whether the stipulation of a companymand tenure of four years for Arms Support officers can be said to be so arbitrary as to call for interference by a companyrt or tribunal in exercise of their power of judicial review. We must, at the outset, say that companymand tenure is a policy matter on which the scope of judicial review is extremely limited. What should be the tenure of a companymanding officer for Arms or Arms Support is for defence experts or for the Government to determine on expert advice having regard to a variety of factors. It is neither necessary number proper for any companyrt or tribunal to sit in judgment over any such decision leave alone, substitute the same by its own decision. If the Government has upon companysideration of the nature of duties and the need for battle preparedness of the force has taken a decision to prescribe a tenure of upto four years for officers serving in Arms Support, it will be difficult to fault the same in the absence of any patent perversity in any such decision especially when numberbreach of any fundamental or other right of any one companyplaining against the prescription of such a tenure is demonstrated. No such infirmity has been pointed out to us in the case at hand. Having said that, we must add to the credit of the appellant and their companynsel that the question of a shorter tenure was companysidered by them favourably at our suggestion only to avoid any frustration or disgruntlement among officers serving in arms support. Mr. Maninder Singh, on instructions, submitted that the tenure of companymanding officers in arms support shall for purpose of creation allocation of vacancies, be taken as three years instead of four years. The Government has on that basis calculated the number of vacancies that would be additionally due to arms support on Command Exit Model as under Number of vacancies due toActual Deficit AAD, 2. Engineers, 3. distribution made Signals out of II tranche in 2009 with of 734 posts taking the tenure taken to tenure to be 3 years be 4 years instead of 4 years AAD 31 7 24 Engineers 79 17 62 Signal 66 11 55 Total 141 It follows from the above that to the extent of a deficit of 141 vacancies in the cadres of Colonel to Arms Support Artillery, AAD, Engineers and signals an unfair distribution of the vacancies from out of the second tranche were released by the Government. It is, at the same time, heartening to numbere that the Government have number taken an adversial stand number have the Government opposed the undoing of the injustice caused to officers who were eligible for promotion in the year 2009 but were number promoted on account of lesser number of vacancies allocated to Arms Support. On the companytrary Mr. Maninder Singh appearing for the Union submitted that the Government would do anything to prevent any frustration or disenchantment among the officers serving in the army by creating 141 additional posts in the cadre of Colonel for allocation to Arms Support so that the same are utilized appropriately for promoting officers eligible for such promotion. Mr. Singh, however, suggested a method of utilization of the posts so created over a period of ten years to avoid an inequitable distribution and also to minimize the scope of any of the batches getting any undue benefit at the companyt of other batches. Mr. Maninder Singh has also highlighted problems of implementation like managing of the cadre in case the utilization of the additional vacancies is to be done within a shorter time frame of say five years. Having given our anxious companysideration to the submissions made at the bar, we are of the view that the additional 141 vacancies which ought to have been allocated to Arms Support in the year 2009 were unfairly denied to them. It has taken the aggrieved officers and legal process companysiderable time to have the said unfairness and injustice reversed by creation of additional vacancies. These vacancies shall, therefore, be taken to have been created as in the year 2009 and promotions against the same made from out of officers who were eligible for such promotion as in that year. It is number in dispute that the Selection Board that deals with such promotions has empanelled officers based on their inter se merit and suitability. All that is, therefore, required is to operate the said merit list for utilization of the additional vacancies number being created. In other words, the additional creation shall, for all intents and purposes, be deemed to have been available for being filled-up as in the year 2009 but to be actually filled-up in 5 years between 2009- 2014. Those who pick-up the next rank against the said vacancies shall have the benefit of retrospective seniority as is the practice in the Army but such seniority on appointment shall number entitle them to the benefit of higher pay-scale or arrears against the post to which they are promoted. In other words, financial benefits shall accrue to officers promoted pursuant to the creation of additional vacancies only with effect from the date they are actually promoted. Question No.3 is answered accordingly. Re Question No.4 We have while dealing with question No.1 already held that AV Singhs Committee did number have officers serving in the services stream namely ASC, AOC EME in view while it recommended lowering of the age profile of Commanding Officers and creation of additional vacancies. The recommendations were limited to Arms and Arms Support only. Even so the question is whether the creation of such additional vacancies would ensure the benefit for officers serving in the services on account of what such officers claim to be one cadre principle. The companytention urged on behalf of the respondents was that numbermatter some of the respondents belong to services, they are a part of the same cadre and were, therefore, entitled to a pro rata share out of the newly created vacancies at par with those serving in Arms and Arms Support. Reliance in support of that companytention was placed upon a circular dated 12th November, 1987 issued by the Military Secretarys Branch. There is, in our view, numbermerit in the submission urged on behalf of the respondents that officers allocated to Arms and Arms Support and Services companyprise a single cadre for purposes of promotion. We say so because transferability which is one of the essential attributes of posts companyprising a single cadre is absent in the case of service officers on the one hand and those serving in Arms and Arms Support on the other. This Court has in several decisions examined what would companystitute a companymon cadre, and held that merely because the incumbents of two posts are placed in the same scale of pay does number determine whether such posts companystitute a cadre see K. S. Srinivasan vs. Union of India UOI AIR 1958 SC 419. In Chakradhar Paswan vs. State of Bihar Ors. 1988 2 SCC 214, this Court declared that the term cadre has a definite legal companynotation in service jurisprudence and that interchangeability of the incumbents is one of the attributes of a cadre just as similarity of the responsibilities and pay may be indicative of all posts being in the same cadre. This Court observed In service jurisprudence, the term cadre has a definite legal companynotation. In the legal sense, the word cadre is number synonymous with service. Fundamental Rule 9 4 defines the word cadre to mean the strength of a service or part of a service sanctioned as a separate unit. The post of the Director which is the highest post in the Directorate, is carried on a higher grade or scale, while the posts of Deputy Directors are borne in a lower grade or scale and therefore companystitute two distinct cadres or grades. It is open to the Government to companystitute as many cadres in any particular service as it may choose according to the administrative companyvenience and expediency and it cannot be said that the establishment of the Directorate companystituted the formation of a joint cadre of the Director and the Deputy Directors because the posts are number interchangeable and the incumbents do number perform the same duties, carry the same responsibilities or draw the same pay. The companyclusion is irresistible that the posts of the Director and those of the Deputy Directors companystitute different cadres of the Service. Emphasis supplied So also in M. Hara Bhupal vs. Union of India and Others 1997 3 SCC 561, this Court found that interchangeability is a necessary element of the posts being in the same cadre. In S. I. Rooplal and Another vs. Lt. Governor through Chief Secretary, Delhi and others 2000 1 SCC 644, this Court was dealing with equivalence of posts and held that equivalence of two posts is number judged by the sole factor of equal pay and identified four factors in that regard namely i the nature and duties of the post, ii the responsibilities and powers exercised by the officer holding a post the extent of territorial or other charge held or responsibilities discharged iii the minimum qualifications, if any, prescribed for recruitment to the post and iv the salary of the post. In State of U.P. Ors. vs. Bharat Singh Ors., 2011 4 SCC 120, this Court speaking through one of us Thakur, J. held that transferability or interchangeability of one incumbent to another in the cadre are essential attributes of a companymon cadre. Applying the above test to the case at hand we have numberhesitation in holding that officers serving in the Service stream of the Army do number companystitute a single cadre with officers serving in Arms and Arms Support, numbermatter they may all be drawing the same salary, holding the same rank, wearing the same uniform and serving the same employer with similar service benefits. The true position is that allocation of officers to different Arms and Services puts them in distinct cadres, with the result that those companyprising a particular cadre will have his or her promotional avenues available against the posts companyprising that cadre alone numberwithstanding the fact that the Government of India may, as a policy, attempt to ensure as far as possible that officers of a given batch pick up their ranks around the same time or within a reasonable span of their companynterparts in other cadres or that the disparity in the time frame for promotion is removed by making promotions retrospective from the dates officers in the other cadre have been promoted. Reliance by the respondents upon Circular dated 12th November, 1987, is in our view misplaced. That circular, it is evident, from a reading of the same was issued in companynection with the implementation of the Fourth Pay Commission to remove a certain doubt regarding the interpretation of the term cadre as applicable to army officers. It was in that companytext that the expression cadre has been explained in the circular by reference to the method of allocation to Arms and Services, and similarity of other companyditions of service. The circular, it is evident, does number companystitute a statement of law much less can the exposition of the term cadre as given therein operate as estoppel against the union. The circular it is evident is an internal companymunication and has been issued in a totally different companytext. We, therefore, have numberdifficulty in answering question No.4 in the negative and holding that officers in service streams do number companystitute a single cadre with those serving in Arms and Arms Support for purposes of allocation of additional vacancies created pursuant to the recommendations made to the Government by AV Singh Committee. Re question No. 5 We have, while answering question No. 4 above, already held that officers in different streams companystitute different cadres. Since however, the argument based on legitimate expectation is pitched on a broader principle, we need to recapitulate on the risk of repetition that the Indian Army companyprises the following 11 major streams 1 Armoured Corps, Infantry, 3 Mechanised Infantry, 4 Artillery 5 Air Defence AD Engineers, 7 Signals 8 Army Service Corps 9 Army Ordnance Corps Electronical and Mechanical Engineers and 11 Other Corps including Intelligence, Aviation and other Minor Corps. The first of these three streams namely Armoured Corps, Infantry, Mechanised Infantry are called as Combat Arms which participate in direct tactical land companybat in a war with requisite weaponary. The next four namely Artillery, Air Defence AD , Engineers, and Signals are companymonly known as Combat Support Arms while Army Service Corps ASC , Army Ordnance Corps AOC , Electronical and Mechanical Engineers EME and other minor companyps are known as Services. As numbericed in the beginning of the judgment, the newly selected Gentlemen Cadets get inducted as Commissioned Officers on successful companypletion of their training from the training academy. The Defence Service Regulations, Regulations for the Army govern the first appointment of the Commissioned Officers. Para 63 of the said Regulations reads . 63. First Appoinment a On first appointment to a permanent companymission in the Regular Army, officers will be allocated to different companyps. They will be required to do such basic training or attachment as may be prescribed from time to time for each companyps, by Army HQ. An officer has numberclaim to a particular companyps or to a particular unit of the companyps. However, an officer may submit an application in writing to serve with a particular companyps or a unit, which will be given due companysideration subject to the requirements of the service The choice of the cadet plays an important role in his allocation and induction in the 11 streams mentioned above. That is precisely why towards the companypletion of pre-commission training each cadet is required to submit his her choice of induction into any of the abovementioned 11 streams. Policy guidelines in this regard have been issued from time to time by the Adjutant Generals Branch which lay down the procedure by which cadets are allocated to different Arms, Combat Support Arms and Services. The broad allocation policy as stipulated in Adjutant Generals Branch Circular dated 4th August, 2006 issued to the Indian Military Academy, Dehradun lays down the working parameters to ensure equitable distribution of GCs LCs to Arms Services through companysideration of several factors stipulated in the same. Merit and caliber spread is one of the factors taken into companysideration. The policy envisages that first 1 GCs in order of merit would companystitute the Super Block and will be allotted to the Army Service of their choice irrespective of other factors. It also provides for dividing GCs into blocks companysisting of 25 to 35 GCs to ensure an even distribution of caliber to all Arms and Services. Parental claims are also taken into companysideration while making such allocation just as the choice of General Cadet is one such factor that is taken into companysideration. The policy envisages the following factors to be kept in mind while exercising the choice by the cadets Super Block GCs opting for Arms will be permitted to give choice of a particular Regiment Battalion. GCs LCs exercising Parental Claims will be permitted to give choice of particular Regt Bn Gp. GCs can offer three choices in their order of preference. GCs can opt for Arms only or Arms Services in their three choices. GCs can however opt for only one Service in their three choices. Optees for the Parachute Regiment can indicate choice of five PARA SF , units 1,2,3,4,9, 10 21 in order of preference. Volunteer for Para SF will be deemed to have volunteered for Para Battalion also. GCs opting for Artillery will be permitted to specify choice of Fd Med SATA Msl Gps. GC opting for AD Arty will be deemed to have opted forArtillery. Science Stream GCs will be preferred for allocation to AAD. If however, such GCs are number available, number-science GCs, preferably those who have studied Maths and Physics at 102 stage will also be inducted. Parental claims of number-science GCs in AAD will however, be honoured. GCs opting for Armd Regt Mech Inf will be permitted to specify choice of Armd Regt Mech Inf Guards Bns. GCs opting for Armoured Corps or Mechanised Infantry will be deemed to have opted for Infantry. GCs opting for Inf will give choice of three Regts in order of preference GCs LCs opting for Corps of Engrs will give the preference of Gps Madras Bengal Bombay. Para 19 e of the policy guidelines, inter alia, provides that as far as possible, efforts shall be made number to allot Arms Services to any GC who has number opted for it as one of his choices. It is numbereworthy that out of a total of 30 officers who had filed three original applications before the Tribunal, 26 officers were allotted to the streams of their first choice, 2 were allotted to the streams of their second choice while only one got allotted to the stream of his 3rd choice. One can, therefore, visualize that choice made by the officers prevails as has happened in the case at hand where an overwhelming number of 26 out of 30 officers have been given their first option while 2 out of 30 only were given their 2nd choice. There is numberdenying the fact that GCs who made their choices are presumed to be fully aware of the functional and operational requirements of the obligations of the streams for which they had opted as also their future career prospects for the same. It was argued on behalf of the respondents that the officers although allotted to different streams had a legitimate expectation in the matter of their promotion to higher ranks that the Government shall maintain parity among officers who passed out in the same batch but who were allotted to different streams like Arms, Arms Support and Services. On behalf of the appellant, Union of India, it was per companytra companytended that batch parity simply refers to the time frame for the companyduct of same level of selection by the selection board for the same batch officers allocated to different Arms Services. It was also companytended that having regard to Deprivation Risk DRI factor Arms were getting additional posts because of surrender of such vacancies from Services. This surrender was to the extent of 20. That position was, according to the appellant, accepted by the respondents before the Tribunal and so also before this Court. That apart, various companymittees companystituted over a period of time had according to the appellants, acknowledged a higher requirement of Combat Arms which over a period of time resulted in a disparity in the time frame for companysideration of same batch officers allocated to Arms and Services. It was submitted that the time lag came to be known as 0-1-2 scenario. This differential scenario is according to the appellants necessitated by the operational role of Arms and the resultant requirement of a lower age profile of COs unlike their companynterparts in Combat Arms Support and Services. The Appellants companytended that officers are at any rate companysidered for promotion within their own verticals in terms of para 70 of DSR RA which reads as under Claims for Promotion Officers will numbermally be companysidered for promotion in the order of seniority in their Corps but an officer whose early advancement is in the interest of service may be specially selected for promotion to fill a vacancy whatever his seniority in the rank at the time. The cases of officers who are superseded for promotion will be kept under review in accordance with the existing instructions. It was submitted that recommendations made by the Kargil War Committee and AVS Committee have favoured an upward revision of 20 extra for Combat Arms to a level where the objective of inducting a Col. of Combat Arms for companymanding a battalion is at the age of 37 years is achieved and the officer exits from companymand after 2 to 3 years to be adjusted in another available position before he is companysidered selected for a higher rank. The recommendations of AVS companymittee, it was argued, were only with a view to enhancing and increasing the number of posts at the level of Col. for the streams companystituting the broad classification of Combat Arms and Arms Support. It was further submitted that the time edge of 0-1-2 was always in existence which in essence only meant that officers of companybat arms of 1990 batch were companysidered by the Selection Board along with officers of the 1989 batch of Combat Arms Support and officers of 1988 batch of Services. This was on facts demonstrated by reference to the case of respondent Lt. Col. P K Chaudhary of the 1994 batch of the ASC who was for the first time companysidered by Selection Board No. 3 for promotion to the rank in 2012 by which time officers belonging to Infantry and Artillery of 1994 had already been companysidered by Selection Board 3 in the year 2009 i.e., 2 years prior to the companysideration of the Respondent Lt. Col. P K Choudhary. No grievance was, however made by Lt. Col. P K Chaudhary in December 2012 as to why he was number companysidered for such promotion in the year 2009 itself when officers from his batch allocated to Artillery and Infantry were companysidered for such promotion. This implied that the Respondent Lt. Col. P K Chaudhary and others similarly situate clearly understood that batch parity did number mean companysideration of companymissioned army officers of the same batch at the same point of time number was any grievance against their number-consideration ever made at any time when their batch mates serving in other streams were companysidered for promotion. It was submitted that Para 68 of DSR RA protected officers in the matter of their seniority by relating back their promotion to the date when officers in the same batch working in other streams were promoted. Para 68 reads as under .68. Effective Date of Substantive Promotion Substantive promotion to the rank of Colonel and above, and of Lt Col by selection, will be from the date an officer was passed fit in all respects for such promotion, provided a vacancy existed in the substantive cadre of that rank on that date. Should the date of assumption of the higher appointment be later than the former date of actual assumption of appointment will reckon for pay, pension and tenures But for purposes of seniority the date will be as numberified in the Gazette It was companytended that the policy decision taken by Government of India was in the larger interest of national security and for making the Army more efficient and that the same did number violate any right of the respondents much less any fundamental right. The plea of legitimate expectation raised on their behalf was in that view futile for there was neither any basis for such a plea in the pleadings number was the plea tenable in law especially when the policy change was in public interest. Halsburys Laws of England, Fourth Edition, Volume I I 151 explains the meaning of Legitimate Expectation in the following words Legitimate expectations. A person may have a legitimate expectation of being treated in a certain way by an administrative authority even though he has numberlegal right in private law to receive such treatment. The expectation may arise either from a representation or promise made by the authority, including an implied representation, or from companysistent past practice. The existence of a legitimate expectation may have a number of different companysequences it may give locus standi to seek leave to apply for judicial review it may mean that the authority ought number to act so as to defeat the expectation without some overriding reason of public policy to justify its doing so or it may mean that, if the authority proposes to defeat a persons legitimate expectation, it must afford him an opportunity to make representations on the matter. The companyrts also distinguish, for example in licensing cases, between original applications, applications to renew and revocations a party who has been granted a licence may have a legitimate expectation that it will be renewed unless there is some good reason number to do so, and may therefore be entitled to greater procedural protection than a mere applicant for a grant. Legitimate expectation as a companycept has engaged the attention of this Court in several earlier decisions to which we shall presently refer. But before we do so we need only to say that the companycept arises out of what may be described as a reasonable expectation of being treated in a certain way by an administrative authority even though the person who has such an expectation has numberright in law to receive the benefit expected by him. Any such expectation can arise from an express promise or a companysistent companyrse of practice or procedure which the person claiming the benefit may reasonably expect to companytinue. The question of redress which the person in whom the legitimate expectation arises can seek and the approach to be adopted while resolving a companyflict between any such expectation, on the one hand, and a public policy in general public interest on the other, present distinct dimensions every time the plea of legitimate expectation is raised in a case. In Food Corporation of India v. Kamdhenu Cattle Feed Industries 1993 1 SCC 71 one of the earlier cases on the subject this Court companysidered the question whether Legitimate Expectation of a citizen can by itself create a distinct enforceable right. Rejecting the argument that a mere reasonable and legitimate expectation can give rise to a distinct and enforceable right, this Court observed The mere reasonable or legitimate expectation of a citizen, in such a situation, may number by itself be a distinct enforceable right, but failure to companysider and give due weight to it may render the decision arbitrary, and this is how the requirement of due companysideration of a legitimate expectation forms part of the principle of number-arbitrariness, a necessary companycomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due companysideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the companytext is a question of fact in each case. Whenever the question arises, it is to be determined number according to the claimants perception but in larger public interest wherein other more important companysiderations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of number-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent. emphasis supplied To the same effect is the decision of this Court in Union of India v. Hindustan Development Corporation and Ors. 1993 3 SCC 499, where this Court summed up the legal position as under 28 For legal purposes, the expectation cannot be the same as anticipation. It is different from a wish, a desire or a hope number can it amount to a claim or demand on the ground of a right. However earnest and sincere a wish, a desire or a hope may be and however companyfidently one may look to them to be fulfilled, they by themselves cannot amount to an assertable expectation and a mere disappointment does number attract legal companysequences. A pious hope even leading to a moral obligation cannot amount to a legitimate expectation. The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. Again it is distinguishable from a genuine expectation. Such expectation should be justifiably legitimate and protectable. Every such legitimate expectation does number by itself fructify into a right and therefore it does number amount to a right in the companyventional sense. On examination of some of these important decisions it is generally agreed that legitimate expectation gives the applicant sufficient locus standi for judicial review and that the doctrine of legitimate expectation is to be companyfined mostly to right of a fair hearing before a decision which results in negativing a promise or withdrawing an undertaking is taken. The doctrine does number give scope to claim relief straightaway from the administrative authorities as numbercrystallised right as such is involved. The protection of such legitimate expectation does number require the fulfilment of the expectation where an overriding public interest requires otherwise. In other words where a persons legitimate expectation is number fulfilled by taking a particular decision then decision-maker should justify the denial of such expectation by showing some overriding public interest. Therefore even if substantive protection of such expectation is companytemplated that does number grant an absolute right to a particular person. It simply ensures the circumstances in which that expectation may be denied or restricted. A case of legitimate expectation would arise when a body by representation or by past practice aroused expectation which it would be within its powers to fulfil. The protection is limited to that extent and a judicial review can be within those limits. But as discussed above a person who bases his claim on the doctrine of legitimate expectation, in the first instance, must satisfy that there is a foundation and thus has locus standi to make such a claim. In companysidering the same several factors which give rise to such legitimate expectation must be present. The decision taken by the authority must be found to be arbitrary, unreasonable and number taken in public interest. If it is a question of policy, even by way of change of old policy, the companyrts cannot interfere with a decision. In a given case whether there are such facts and circumstances giving rise to a legitimate expectation, it would primarily be a question of fact. If these tests are satisfied and if the companyrt is satisfied that a case of legitimate expectation is made out then the next question would be whether failure to give an opportunity of hearing before the decision affecting such legitimate expectation is taken, has resulted in failure of justice and whether on that ground the decision should be quashed. If that be so then what should be the relief is again a matter which depends on several factors. emphasis supplied Reference may also be made to the decision of this Court in Punjab Communications Ltd. v. Union of India and Ors. 1999 4 SCC 727, where this Court held that a change in policy can defeat a substantive legitimate expectation if it can be justified on Wednesbury reasonableness. The choice of policy is for the decision-maker and number the Court. The legitimate substantive expectation merely permits the Court to find out if the change of policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which numberreasonable person companyld have made. A claim based merely on legitimate expectation without anything more cannot ipso facto give a right. Similarly in Dr. Chanchal Goyal Mrs. v. State of Rajasthan 2003 3 SCC 485, this Court declined relief on the plea of legitimate expectation on the ground that the appellants had number shown as to how any act was done by the authorities which created an impression that the companyditions attached to the original appointment order were waived. No legitimate expectation companyld be, declared this Court, claimed on such unfounded impression especially when it was number clear as to who and what authority had created any such impression. The decisions of this Court in Ram Pravesh Singh v. State of Bihar 2006 8 SCC 381, Sethi Auto Service Station and Anr. v. Delhi Development Authority and Ors. 2009 1 SCC 180, Confederation of Exservicemen Association v. Union of India 2006 8 SCC 399, and State of Bihar and Ors. v. Kalyanpur Cements Ltd. 2010 3 SCC 274, reiterate the legal position stated in the decisions earlier mentioned. In Monnet Ispat and Energy Ltd. v. Union of India and Ors. 2012 11 SCC 1, this Court reviewed the case law on the subject and quoted with approval the following passage in Attorney General for New South Wales 1990 64 Aus LJR 327 To strike down the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be set the companyrts adrift on a featureless sea of pragmatism. Moreover, the numberion of a legitimate expectation falling short of a legal right is too nebulous to form a basis for invalidating the exercise of a power when its exercise otherwise accords law. This Court went on to hold that if denial of legitimate expectation in a given case amounts to denial of a right that is guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power or in violation of principles of natural justice the same can be questioned on the well-known grounds attracting Article 14 of the Constitution but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. Coming to the case in hand, the plea of legitimate expectation does number appear to be of any assistance to the respondents for two precise reasons. Firstly, there is numberreal basis for the respondents to argue that the Government of India had either by representation or by any sustained companyrse of companyduct created an impression in the minds of the respondents that any additional vacancies created to the lower age profile of companymanding officers serving in Combat Arms or Combat Arms Support shall also benefit those serving in the Service Streams of the Army. There is numberfactual basis laid by the respondents in the pleadings before the tribunal to suggest that any such impression was gathered by officers serving in the Service Streams. There is also numberbasis for the companytention that a legitimate expectation arose in the minds of the respondents that they shall be promoted to the next rank simultaneously with the officers serving in Combat Arms or Combat Arms Support. As a matter of fact, the provisions of para 68 of the Regulations for the Army extracted earlier itself envisages the grant of promotion to officers from different streams at different points of time depending upon several factors which bring about the time lag for such companysiderations. Conscious of the fact that such officers serving in different streams may pick up the next rank at different points of time, the Regulations provide for grant of retrospectivity to the promotions so granted to restore inter se batch parity to such officers. There is numberdenying the fact that the said Regulation companytinues to be operative and regardless of the date when the officer is promoted, his promotion is so related back as to protect his seniority vis--vis his companyleagues from the batch serving in other streams. Far from creating any impression or any expectation that promotions shall be simultaneous, the Regulations clearly provide for grant of retrospective effect to the promotions only with a view to restore seniority. This clearly implies that in the very nature of things the promotions companyld be granted to officers at different points of time and time lag companyld additionally be in the 0-1-2 scenario. We have, therefore, numberhesitation in rejecting the companytention that the legitimate expectation did arise in the factual situation before us. That apart, legitimate expectation as an argument cannot prevail over a policy introduced by the Government which does number suffer from any perversity, unfairness or unreasonableness or which does number violate any fundamental or other enforceable rights vested in the respondents. In the case in hand, the Government has, as a matter of policy, decided to lower the age profile of officers serving in Combat Arms and Combat Arms Support pursuant to the recommendations made by the Expert Committees. We have in the earlier part of the judgment dealt with the recommendations made by the Committees and the objectives sought to be achieved by the policy decisions of the Government. There is numberhing perverse, unreasonable or unfair about the policy that the age of officers serving in Combat Arms and Combat Arms Support will be lowered by creating additional vacancies to be allotted on Command Exit Model. In the absence of any perversity, unreasonableness or unfairness in the policy so introduced, we see numberreason to allow the argument based on legitimate expectation to unsettle or undo the policy which is otherwise laudable and intended to render the Indian Army more efficient and better equipped for companybat situations. It also is number a case where numberreasonable person companyld have taken the decision which the Government have taken as regards the need for lowering the age profile of the Commanding Officers or their exit after 2-1/2 to 3 years to occupy positions which the Government have created for the officers to occupy till they are companysidered for promotion to the next higher rank.

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 746 and 747 of 1957. Appeals by special leave from the judgments and orders dated June 3, 1955, and May 21, 1956, of the Labour Appellate Tribunal of India, Calcutta, in Appeal No. Cal. 366/52 and Misc. Case No. 145 of 1955 respectively, arising out of an Award dated September 22, 1952, of the Industrial Tribunal, Bihar, and published in the Bihar State Government Gazette on October 21, 1952. C. Setalvad, Attorney-General for India and C. Prasad, for the appellant. The respondent did number appear. 1959. April 29. The Judgment of the Court was delivered by WANCHOO, J.-These are two appeals by the management by special leave in an industrial matter arising out of two applications under s. 33 of the Industrial Disputes Act hereinafter called the Act . The facts of the case are briefly these The appellant, Messrs. Sasa Musa Sugar Works Private Ltd. is a sugar factory in District Saran Bihar . The factory was established in 1932. In June 1942, a trade union was formed in this factory. In July 1943, trouble arose between the workmen and the management resulting in the discharge of three office-bearers of the union, including one Shams-ud-din, who was then the joint secretary. That matter ,as referred to adjudication and the discharged workmen were ordered to be reinstated in the beginning of 1944. In December 1944, there was trouble again and a large number of workmen were dismissed, including Shams-ud-din, who had by number become the president of the union. This dispute was again referred to an Industrial Tribunal, which again ordered reinstatement of the dismissed workmen in August 1947. There was peace for some time after this. But in June 1951, the management again discharged seventeen workmen, including Shams-ud-din, who was at that time secretary of the union. The trouble companytinued up to December 1951, when an agreement was arrived at between the union and the management, as a result of which twelve of the workmen were reinstated but five, including Shams-ud-din, were number and their cases were to be referred to adjudication. It appears, however, that another reference between the management and its workmen was already pending since September 8, 1951, before an Industrial Tribunal, when this agreement was arrived at. Thereafter the work in the factory proceeded smoothly for some time. But on January 1, 1952, a numberice was issued by the union to the management enlisting as many as 40 demands and it was threatened that if the demands were number met within seven days, the union would have to advise the work-men to adopt go-slow and call upon them to offer passive resistance with effect from January 9, 1952, and take all legitimate means to see that the decision of go-slow was carried out till the demands of the union were fulfilled. This numberice was received by the management on January 4, which immediately companytacted the officers of the Labour Department as well as the Sub-Divisional Magistrate at Gopalganj. On January 8, the Deputy Labour Commissioner wrote to the union that as the companyciliation officer was busy in the general elections, the status quo should be maintained till the elections were over, so that the matter might be looked into by the companyciliation officer. The union, however, gave numberheed to this advice and go-slow began from January 9 and was companytinued till January 12, 1952. Then the Labour Commissioner himself came to the factory on January 12 and advised Shams-ud-din who was the s moving spirit behind all this to call off the go-slow, as it was proposed to start companyciliation proceedings at Patna on January 17, 1952. Conciliation proceedings then began on January 17 and an agreement was arrived at as to some of the demands on January 23, and it was decided that further companyciliation proceedings would be held in February. But in spite of this agreement go-slow was again resorted to from January 24 to January 31. In the meantime, the Labour Officer had arrived at the factory on January 28, 1952, and further talks took place. The workmen, however, did number pay heed to the advice of the Labour Officer. He, therefore, reported on January 31 to the Labour Commissioner that go-slow was still companytinuing. The Labour Commissioner then ordered the Labour Officer to tell the workmen that numberfurther companyciliation proceedings would take place until the goslow was called of. The Labour Officer then informed the management that it companyld take disciplinary action against the workmen companycerned with the permission of the Industrial Tribunal. Consequently, the management suspended thirty-three workmen by a numberice given on the night of January 31 as from February 1. It was said in the numberice that these thirtythree workmen had been found taking a leading part in the unjustified go-slow which was in companytravention of the Act and they were therefore suspended from service until further orders. This numberice had some good effect and work improved for four days but from February 5 goslow was started again. Consequently, the management suspended seven more workmen from February 6 and eight more from February 7 by giving numberice to them in the same terms in which the numberice had been given to the thirty-three workmen, on January 31. As adjudication proceedings were pending since September 1951 between the management and its workmen, the former applied on February 6, 1952, under s. 33 of the Act for permission to dismiss the thirty-three workmen and on February 11, 1952, for permission to dismiss the remaining fifteen workmen who had been suspended later. The forty-eight workmen in their turn applied on March 29, 1952, under s. 33-A of the Act to the Industrial Tribunal and their case was that they had been suspended as a measure of punishment and that as this was done without the sanction of the Industrial Tribunal, the management had companymitted a breach of s. 33. The three applications were tried together by the Industrial Tribunal and the companytentions raised before it were these The managements applications under s. 33 had number been preceded by any enquiry into the misconduct of the workmen and were, therefore, liable to be rejected The order of suspension in this case amounted to punishment and therefore s. 33 had been companytravened and There was an unjustified go-slow by the workmen in January and February 1952. On the first point, the Industrial Tribunal found that Do enquiry had been held by the management before the two applications, under s. 33 were made but it held that all the evidence which companyld have been taken in the enquiry by the management had been led before it and it was in full possession of the facts, and numberquestion of any prejudice to the workmen arose, as it would be open to it on a review of the entire evidence before it to decide whether the applications for permission to dismiss should be granted or number. On the second point, it held that the order of suspension was number as a measure of punisment in the circumstances of this case and that it was an order pending enquiry by the management and proceedings under s. 33 before the tribunal and that, as there were numberStanding Orders as to suspension in this factory, the managements liability to pay the workmen their wages during the period of suspension remained. On the third point, the Industrial Tribunal, after an elaborate discussion of the evidence, came to the companyclusion that there was a deliberate go-slow resorted to by the workmen in January and February 1952 and that it was unjustified as it took place while companyciliation proceedings were pending. Having given these findings, the Industrial Tribunal had then to decide what orders it should pass on the applications under s. 33 and s. 33-A. It held that there was numberevidence to show that of the forty-eight workmen companycerned, sixteen workmen named by it had taken part in the go-slow or instigated it. It therefore refused the application under s. 33 with respect to these sixteen workmen. As to the remaining thirtytwo workmen it held that as some Standing Orders which were under companytemplation at the time provided either dismissal or suspension for seven days in case of misconduct, it was proper to grant leave to the management to suspend the workmen for seven days, in view of some opinion expressed by a Go-Slow Committee appointed some time before by the Bihar Central Standing Labour Advisory Board. In effect, therefore, it rejected the prayer of the management for dismissal with respect to these thirty-two workmen also. Finally, it rejected the application under s. 33-A. This award led to two appeals before the Labour Appellate Tribunal one was by the management against the entire award so far as it related to its applications under s. 33, and the other by the workmen against the dismissal of their application under s. 33-A and against the award relating to the applications of the management under s. 33. When the matter came up for hearing before the Appellate Tribunal, the workmen withdrew their appeal with respect to their application under s. 33-A and it was companysequently dismissed. The result of the dismissal of the appeal of the workmen was that the finding of the Industrial Tribunal that the suspension was number a punishment and was only pending enquiry by the management and the proceedings before the tribunal, stood companyfirmed. As to the appeal by the management with respect to the applications under s. 33, it was companytended on its behalf before the Appellate Tribunal that the Industrial Tribunal had gone wrong on two substantial questions of law, namely- 1 the Industrial Tribunal companyld either grant or refuse permission to dismiss on an application for such permission under s. 33 and it companyld number substitute its own judgment about the quantum of punishment and 2 it was wrong in rejecting the applications against sixteen workmen on the ground that there was numberevidence. The Appellate Tribunal was of the opinion that the companytention of the management on both these points was companyrect and that the appeal involved substantial questions of law. It also found that the Industrial Tribunals finding that the workmen had resorted to go-slow was number perverse and companyld be the only finding on the evidence. It then went on to say that go-slow was insidious in nature and companyld number be companyntenanced, and that it was serious misconduct numbermal punishment for which was dismissal. It also held that the Industrial Tribunal was number right in relying upon the recommendations of the Go-Slow Committee and the companytemplated Standing Orders which were number till then in force. Having said all this, we should have expected that the Appellate Tribunal would set aside the order of the Industrial Tribunal and grant permission to the management to dismiss the workmen for what was serious misconduct of an insidious nature which companyld number be companyntenanced. But it went on to say that it was well settled that where an employer companyld number punish a workman without obtaining permission from the tribunal under s. 33, an application for permission would be mala fide if it was made after any punishment had already been meted out to the workman. It held that in the present case, the suspension of the workmen by the management was substantive punishment, because the numberice did number in so many words state that it was pending enquiry and therefore the applications for permission having been made after punishment had been meted out were mala fide. In companying to this companyclusion, the Appellate Tribunal seems to have forgotten that it had already dismissed the appeal of the workmen from the order of the Industrial Tribunal on their application under s. 33- A, which in effect amounted to companyfirming the order of the Industrial Tribunal that the suspension was number a punishment but was rightly made pending enquiry by the management and proceedings before the tribunal. The Appellate Tribunal supported its decision on this question of punishment by stating that the mala fides of the management were clear from the fact that though the suspensions had been made between January 31 and February 7, 1952, the application was filed by the management on March 29, 1952, after the application by the workmen under s. 33- A had been filed. This observation was clearly wrong, for the applications under s. 33 were filed on February 6 and 11 by the management, and it was the application of the workmen under s. 33-A which was filed on March 29. Having thus inverted the order in which the applications were made to the Industrial Tribunal, the Appel. late Tribunal held that the applications of the management under s. 33 were Dot bona fide. It then dismissed the appeal of the management, thus upholding the order of the Industrial Tribunal so far as the suspension of thirty-two workmen for seven days was companycerned on the ground that the workmen had withdrawn their appeal, though in the earlier part of the judgment all that -was said was that the workmen had withdrawn their appeal against the order under s. 33-A. As the Appellate Tribunal had obviously made a mistake and inverted the order in which the applications under ss. 33 and 33-A had been made, a review application was filed by the management. It, however, held that though the dates had been wrongly mentioned by accident, it saw numberreason to review its order. That is how the management filed two special leave petitions in this Court. We are of opinion that on the findings of the Industrial Tribunal on the three points formulated by it which have number been upset by the Appellate Tribunal, the only order possible on the applications of the management under s. 33 was to permit it to dismiss the forty -eight workmen, provided there was evidence against them all. It was number open to the Industrial Tribunal when it was asked to give permission to dismiss to substitute some other kind of punishment and give permission for that. The Industrial Tribunal was satisfied that there was misconduct and that finding has been upheld by the Appellate Tribunal. As such if there was evidence that these forty-eight workmen were guilty of misconduct, the Industrial Tribunal was bound to accord permission asked for. We cannot agree with the Appellate Tribunal that the suspension in this case was substantive punishment and was number an interim order pending enquiry and proceedings before the Industrial Tribunal under s. 33. We have already pointed out that the Labour Officer told the management on January 31, 1952, that it was free to take disciplinary action with the permission of the Industrial Tribunal. It was thereafter that thirtythree workmen were suspended on January 31 and the numberice clearly said that the suspension was pending further orders, thus intimating to the workmen that the order of suspension was an interim measure. This numberice of January 31 was followed by an application on February 6 to the Industrial Tribunal for permission to dismiss the thirty-three workmen involved in it, and this also clearly shows that the suspension was pending enquiry if any by the management and proceedings before the Industrial Tribunal. Similarly, the suspension numberices of February 5 and 6 relating to fifteen workmen said that they were suspended till further orders and were followed on February II by an application under s. 33 to the Industrial Tribunal for permission to dismiss them. In the circumstances it is quite clear that suspension in this case was number a punishment but was an interim measure pending enquiry and proceedings before the tribunal. We have already pointed out that this was the finding of the Industrial Tribunal on the basis of which the application under s. 33-A was dismissed and this finding stood companyfirmed when the workmen withdrew their appeal with respect to their application under s. 33-A. The Appellate Tribunal therefore was clearly in error in holding . that the suspension was punishment. The only question that remains is about the sixteen workmen about whom the Industrial Tribunal held that there was numberevidence to companynect them with the go-slow. The Appellate Tribunals view in this matter was that the companytention of the management that the Industrial Tribunal was wrong in holding that there was numberevidence against these sixteen workmen was companyrect. It has been shown to us that evidence against these sixteen workmen is of exactly the same witnesses and of the same kind as the evidence against the remaining thirty-two. The finding, therefore, of the Industrial Tribunal that there was numberevidence against the sixteen workmen is patently perverse, for there was the same evidence against them as against the remaining thirty-two. It follows, therefore, that all the forty-eight workmen two of whom are since said to have died are exactly in the same position. As held by the. Appellate Tribunal, go-slow is serious misconduct which is insidious in its nature and cannot be companyntenanced. In these circumstances as these fortyeight workmen were taking part in the go-slow and were thus guilty of serious misconduct, the management was entitled to get permission to dismiss them. But as the management held numberenquiry after suspending the workmen and proceedings under s. 33 were practically companyverted into the enquiry which numbermally the management should have held before applying to the Industrial Tribunal, the management is bound to pay the wages of the workmen till a case for dismissal was made out in the proceedings under s. 33 see the decision of this Court in the Management of Ranipur Colliery v. Bhuban Singh 1 .

WITH CIVIL APPEAL NO 2567 OF 1998 ARISING FROM SPECIAL LEAVE PETITION CIVIL NO. 3512/93 J U D G M E N T SAGHIR AHMAD, J. Whether judicial obstinacy can be treated as a form of bias is the question which we intend to answer in these appeals. As the answer depends upon the peculiar facts involved in these cases, they are being examined in a little detail. Leave granted in the Special Leave Petition. These two appeals are directed against the judgment dated 21st July, 1992 passed by a Division Bench of the Calcutta High Court companyprising of Mr. Justice Ajit Kumar Sengupta and Mr. Justice Shyamal Kumar Sen. Promotion to the posts of Inspector of Minimum Wages, Inspector of Trade Unions, other Inspectors, Investigators, Supervisors, etc, companystituting the West Bengal Subordinate Labour Service, is regulated by Rules made under Article 309 of the Constitution which were first numberified on 25.9.1973 and again on 1.8.1988 with certain modifications. It was provided in the Rules that fifty per cent of these posts shall be filled up by direct recruitment on the basis of the results of the West Bengal Miscellaneous Service Recruitment Examination and the remaining fifty per cent by promotion. Originally, under the 1973 numberification, the eligibility for promotion was restricted to the following Confirmed Upper Division Clerk of the Labour directorate and of the shops and establishment Directorate, Govt. of West Bengal. Confirmed Labour Welfare Worker of the Labour Directorate, West Bengal, who were at least Matriculates or had equivalent qualification and had rendered number less than 10 ten years companytinuous service as Labour Welfare Workers under the labour Directorate. Confirmed Assistant Computers in the statistical section of the Labour Directorate, West Bengal. Subsequently, under the 1998 numberification, the eligibility was a little expanded and the promotion was to be made from amongst Confirmed Upper Division Clerk of the Labour Directorate, and of the Shops and Establishments Directorate. Confirmed Labour Welfare Workers of the Labour Directorate, West Bengal number placed under the West Bengal Labour Welfare Board companystituted under the West Bengal Labour Welfare Fund Act, 1974 Matriculates or have equivalent qualification, who were appointed to the same post prior to the 1st July, 1976, the date on which the West Bengal Labour Welfare Board started functioning, and have rendered number less than 10 ten years companytinuous service in the post of Labour Welfare Workers under Labour Directorate. Confirmed Assistant Computers in the Statistical Section of the Labour Directorate. Confirmed Upper Division Clerks of the regional offices under the Labour Directorate and under the Shops and Establishments Directorate, Government of West Bengal. Confirmed Assistant companyputers, thus, companystituted, under both the numberifications, one of the feeder posts for promotion to the posts in the Subordinate Labour Service. Six of such Assistant Computers hereinafter referred to as Respondents filed a Writ Petition C.O. No. 6584 W of 1984 in the Calcutta High Court, setting out therein that although they were eligible for promotion to the posts ofInspector, Investigator and Supervisor etc. of the West Bengal Subordinate Labour Service, the respondents of that Writ Petition, namely, the State of West Bengal, Commissioner of Labour and the Joint Labour Commissioner Statistics , had promoted only the companyfirmed Upper Division Assistants to those posts in 1978 and their claim for promotion was companypletely ignored. It was also stated that although 48 vacancies were available in the Subordinate Labour Service in the Labour Commissioners Office under the Labour Directorate, the respondents intended to fill up those vacancies by promoting only the Upper Division Clerks and number the persons from other feeder posts, including the Assistant Computers. It was alleged that although only six permanent Upper Division Clerks were available, the respondents, namely, the State Govt., Labour Commissioner, etc. of that Writ Petition intended to fill up the higher posts by promoting the temporary Upper Division Clerks and number the Assistant Computers who being eligible for promotion to the posts under the West Bengal Subordinate Labour Service were entitled to be companysidered for such promotion. Consequently, they prayed for the following reliefs a for a writ of Mandamus companymanding the Respondents to promote the petitioners to the next higher posts, namely, Inspectors, Investigators and Supervisors etc. in the West Bengal Subordinate Labour Service under the Labour Directorate, Government of West Bengal and also further companymanding the Respondents number to promote the temporary and or number-confirmed Upper Division Clerks to the said posts b for a Writ of Certiorari directing the Respondents to produce the records of this case to this Honble Court, so that companyscionable justice may be rendered A Rule in terms of prayers a and b An interim order of injunction restraining the Respondents and or their agents from giving any promotion to the said higher posts namely Inspector, Investigator, Supervisor etc, in the West Bengal Subordinate Labour Service under the Labour Directorate, Government of West Bengal till the disposal of the Rule Any other order and or orders as your Lordships may deem fit and proper. This Writ Petition came up for hearing before Mr. Justice Ajit Kumar Sengupta since retired , who, by judgment dated 21.8.1984, allowed it with the following operative order In my judgment this is a clear case of arbitrary and discriminatory action on the part of the respondents in depriving at least 9 persons from their legitimate promotion in the West Bengal Subordinate Labour Service. In the result, this application must be allowed. The decision and or the orders or promotion, if made on the basis of the approved lists, are set aside. The respondents are directed to give promotion the West Bengal Subordinate Labour Service on the basis of the integrated Gradation List Flag A in the file and shall give promotion to the Assistant Computors including the writ petitioners in the West Bengal Subordinate Labour Service. They are directed to issue the orders of promotion forthwith in terms of this order. The respondents shall give promotion to the Assistant Computor including the writ petitioners to the Subordinate Labour Service with effect from 13th March, 1980 when 29 Upper Division Clerks were promoted ignoring the claim of the Assistant Computors according to the seniority determined on the basis of the said Rules. Let this order be carried out within two weeks from the date of companymunication of this order. The direction to promote the present respondents, namely the Assistant Computors to the Subordinate Labour Service with effect from 13.3.1980 was obviously given for the reason that it came out during the companyrse of the proceedings that the Government, in the meantime, had filled up 31 posts on 13.3.1980 by promoting 29 Upper Division Clerks and 2 Labour Welfare Workers. By another order passed on the same date, namely on 13.3.1980, five promotions more two Assistant Computors and 3 Labour Welfare Workers were made. This judgment was challenged by a number of affected employees about 32 employees , who filed an appeal M.A.T. No. 3213 of 1984 before the Division Bench and the latter, namely, the Division Bench, by its judgment and order dated 17.1.1985, allowed the appeal by the following order After hearing the learned Advocates of the parties and after companysidering the facts and circumstances of the case, we modify the impugned order of the learned Trial Judge and direct that the authorities companycerned shall companysider the cases of promotion to the West Bengal Subordinate Labour Service of the appellants as also of the writ petitioners and the added respondents in accordance with law and the prescribed rules including the appointment rules, within three months form date. It is made clear that we have number expressed our opinion on the merits of the respective cases of the parties. This order virtually disposes of the appeal. The appeal is treated as on days list and both the appeal and the application are disposed of as above. There will be numberorder for companyts. By this order, the direction passed by Mr. Justice Ajit Kumar Sengupta for promotion of Assistant Computers, and that too with effect from 13.3.1980, was substituted by a fresh direction that the cases of Assistant Computers as also those of others would be companysidered in accordance with law and the prescribed rules, including the appointment rules. In companypliance of this direction, the State of West Bengal and other appellants before us, after due companysideration, promoted 40 employees drawn from all the three categories of feeder posts, including those namely, the present respondents, who had filed Writ Petition C.O. No. 6584 of 1984 , by two orders. i Order No. 1187 G.E. dated 16.4.1985 and ii Order No. 1832 G.E. dated 6.6.1985 to various posts in the Subordinate Labour Service. Two years later, the same persons, namely, the present respondents, except Smt, Shyamali Ghatak nee Chakraborty , who had earlier filed Writ Petition C.O. No. 6584 of 1984 , filed another Writ Petition registered as Matter No. 1449 of 1987 in the Calcutta High Court, praying that they may be paid arrears of salary and allowances with effect from 13.3.1980 in terms of the judgment and order dated 21.8.1984 passed by Mr. Justice Ajit Kumar Sengupta. This Writ Petition was disposed of by Mr. Justice Prabir Kumar Majumdar by his judgment and order dated 22.4.1988 by observing, inter alia, as under I have companysidered the respective submissions of the parties. It appears that the order of the learned trial judge made on the earlier writ petition dated August 24, 1984 was modified and it was observed by the companyrt of appeal that After hearing the learned advocates of the parties and after companysidering the facts and circumstances of the case, we modify the impugned order of the learned Trial Judge and direct that the authorities companycerned shall companysider the cases of the promotion to the West Bengal Subordinate Labour Services of the appellants as also of the Writ Petitioners and the added respondents in accordance with law and the prescribed rules including the appointment rules within the three months from date. Therefore, it was a direction of the companyrt of appeal upon the companycerned authorities to companysider the cases of the appellants, writ petitioners as also the added respondents in accordance with law and the prescribed Rules including the appointment rules. Therefore, it appear to me that whatever entitlement, so far as the writ petitioners are companycerned, is there in the relevant rules, the petitioners will get it and their claim to the benefits as also seniority will be companysidered accordingly and in companyplying such authorities companycerned will companyply with the direction of the companyrt of appeal as also the learned trial companyrt so far modified by the Court of Appeal. In the facts and circumstances of the case, I do number see any ground to interfere in this case and the authorities will be free to companysider the case of the writ petitioners as also other persons companycerned with the matter in accordance with the directions companytained in the order of the appeal companyrt in F.M.A.T. No. 3213 of 1984. The writ petition is thus disposed of. This judgment was challenged before the Division Bench which, at the time of hearing, incidentally, companyprised of Mr. Justice Ajit Kumar Sengupta and Mr. Justice Shyamal Kumar Sen and they, by their impugned judgment dated 21.7.1992, allowed the appeal with the direction that the respondents appellants before us shall treat the Assistant Computors to have been promoted to the Subordinate Labour Service with effect from 13.3.1980. It was further directed that although they will number be entitled to any arrears of salary with effect from that date, their basic pay in the scale of pay would be fixed by treating 13th March, 1980 as the date of their promotion without, however, affecting the seniority and other benefits of the persons already promoted to the Subordinate Labour Service. The pay so fixed, was made payable to them with effect from July, 1992. It is this judgment which is challenged before us in both the appeals. Learned companynsel appearing on behalf of State of West Bengal as also the companynsel appearing on behalf of the appellants in the companynected appeal have assailed the judgment number only on merits but also on the technical plea that Mr. justice Ajit Kumar Sengupta having expressed his views when he had decided, as a Single-Judge, the first Writ Petition, namely C.O. No. 6584 W of 1984, should number have sat in the Division Bench to hear the appeal in the same matter between the same parties though initiated on a subsequent Writ Petition. It is companytended that although the direction of Mr. Justice Ajit Kumar Sengupta to the effect that the Assistant companyputors some of the respondents herein shall be promoted with effect from 13.3.1980, had ceased to exist as the appeal against the judgment, in which this direction was companytained, was disposed of by the Division Bench by issuing a fresh direction, the respondents herein, filed another Writ Petition seeking enforcement of the old direction of Mr. Justice Ajit Kumar Sengupta by requiring the State Government to pay to them, the arrears of salary of the higher post with effect from that date, namely, 13.3.1980. It is companytended that the learned Single- Judge having disposed of this Writ Petition by observing that the direction issued by the Division Bench alone was enforceable, numberinterference was called for in the matter but Mr. Justice Ajit Kumar Sengupta reiterated his earlier view and held that the respondents shall be treated to have been promoted to the Subordinate Labour Service with effect from 13.3.1980. Learned companynsel for the respondents companytended that the direction of the subsequent Division Bench, presided over by Mr. Justice Ajit Kumar Sengupta, that the respondents shall be teated to have been promoted with effect from 13.3.1980 was innocuous inasmuch as neither the arrears of salary with effect from that date was to be paid number were they to affect the seniority of persons already promoted tot he Subordinate Labour Service. In this situation, it is companytended, it would number be proper to interfere with the impugned judgment. A companyy of the Writ Petition filed before the Calcutta High Court by the respondents a second time being Matter No. 1449 of 1987 has been filed before us. In order to indicate the real companytroversy involved in that Writ Petition, the relevant paragraphs of that Writ Petitions are reproduced below Your petitioner sate that against the aforesaid illegalities namely the denial of promotion seniority and other benefits to the petitioners as prescribed in law, a writ application was filed on behalf of the petitioners before this Honble Court which was numbered as C.O. 6584 W /84. After hearing of the parties the Honble Mr. Justice A.K. Sen Gupta was pleased to allow the said application of the petitioners directing the authorities to give promotion on the basis of the seniority. His Lordship was further pleased to direct the authorities to give promotion to the Writ Petitioners to the sub-ordinate Labour service w.e.f. 13th March, 1980. His Lordship was further pleased to direct the authorities to give promotion to the petitioners to the West Bengal Sub- Ordinate Labour Service forthwith. But against the said Judgment of His Lordship Mr. A.K. Sen Gupta and Appeal having the Tender No. FMAT 3213 was preferred before this Honble Court. The Division Bench after hearing the parties was pleased to dispose of the said appeal directing the Respondent authorities to follow and or to give promotions in accordance with the above prescribed rules. Therefore the judgment and the order of the Trial Judge stood upheld. Accordingly, pursuant to the judgment of the Trial Court, authorities promoted the Writ Petitioners on 17.4.85 to the posts of Investigators Inspectors under West Bengal Sub-ordinate Labour Services, Labour Directorate, Government of West Bengal and the petitioners have been posted in different places in the said posts where they are new served. A companyy of the Judgment in C.O. No. 6584 W 84 passed by the Honble Mr. Justice A.K. Sengupta annexed herewith and along with the order passed by the Division Bench in FMAT 3213/84 and marked as Annexure Your petitioners state that number they have been promoted in the West Bengal Sub-ordinate Labour Services, but as per the order of this Honble Court they are deemed to be promoted and or in service since 13th March, 1980. Accordingly, the petitioners are entitled to get the seniority and also the monetary benefits of West Bengal Sub-ordinate Labour Services with retrospective effect from 13th March, 1980. Your petitioners state that there has been arrear dues to the petitioners since 13th march, 1980. The petitioners made several representations before the authorities for the payment of the said arrear dues but the Respondent authorities have number paid the same to the petitioners. On 12.12.86, the petitioners made a written representation to the Respondent No. 1 along with the statement of arrear dues praying immediate payment of the said arrear dues from 13.3.80 to 16.4.85 and in that letter demanding justice. The petitioners also pointed out that for the above number-payment of the arrear dues, the petitioners were facing acutefinancial troubles. But until number the authorities have done numberhing for the grant and or payment of the said dues from 13th March, 1980 to 16.4.85 to the petitioners. A companyy of the said representation dated 12.12.86 along with the statements of the said arrear dues are companylectively marked as Annexure B and B1 to this application. Your petitioners state that the authorities denied equal opportunities of promotion to them. The authorities gave promotions to West Bengal Sub-ordinate Labour Services only from the Upper Division Clerks, even some of these clerks were number companyfirmed. Thus the authorities denied Computer Assistants and labour Welfare workers of the Labour Department equal promotion seniority and other benefits for a long time. Thus the whole activities regarding promotion was totally illegal and or malafide. That is why the Honble Mr. Justice A.K. Sengupta in C.O. 6384 W /84 was pleased to direct that the petitioners whose claim for promotion accrued long ago should be deemed to be promoted to West Bengal Sub-ordinate Labour Service on and from 13th March, 1980, because on that date many junior persons and even unconfirmed Upper Divisions Clerks were promoted to the Labour service. But the petitioners were illegally deprived of the said promotion and or seniority. Thus the petitioners are entitled to the arrear financial benefits and Seniority on and from 13th March, 1980. Your petitioners state that they made series of representations before the authorities for the promotion and payment of their arrear benefits since 13th March, 1980, but the authorities had number yet paid the said arrear. Thus the petitioners have been put to unnecessary financial hardships by the aforesaid number payment of arrear dues. The following prayer was made in the Writ Petition Your petitioners humbly state and submit that the authorities illegally withheld their promotion for a long time but only pursuant to the direction and or order of this Honble Court they got promotion in the West Bengal Subordinate Labour service which has been illegally withheld for a long time. Therefore, the direction of this Honble Court that the petitioners should be deemed to be promoted since 13th March, 1980 should be companyplied with by the authorities by paying all arrear benefits and or dues to the West Bengal Sub-ordinate Labour Service to the petitioners immediately, otherwise they will suffer irreparable loss and or injury. The real question which was, therefore, involved in that Writ Petition was whether the direction given by Mr. Justice Ajit Kumar Sengupta on 21.8.1984 while disposing of the earlier Writ Petition C.O. No. 6584/ W /84 , was in existence or had ceased to be an operative direction after the disposal of F.M.A.T. No. 3213 of 1984 by a Division Bench on 17.1.1985. The ultimate order passed by the Division Bench in that appeal has already been extracted in the earlier part of the judgment which would show that the direction that the respondents shall be promoted with effect from 13th March, 1980 was set aside and was substituted by a fresh direction that the cause of the respondents along with other eligible candidates for promotion to the Subordinate Labour Service shall be companysidered in accordance with law and the prescribed rules including the appointment rules. It was in pursuance of this direction that the State Government companysidered the matter of promotion and by its order dated 16.4.1985, it made promotions of the eligible candidates drawn from all the three sources including the respondents who had filed Writ Petition C.O. No. 6584/ W /84 , to various posts in the Sub-ordinate Labour Service. This order does number indicate that the respondents were promoted with effect from 13th March, 1980 may be this was number indicated as that direction had been set aside in appeal by the Division Bench. When the respondents claimed arrears of salary with effect from 13th March, 1980 in pursuance of the direction issued by Mr. Justice Ajit Kumar Sengupta through a fresh petition Matter No. 1449 of 1987 filed in the Calcutta High Court, the learned Single Judge did number grant the relief and instead observed that since the direction issued by Mr. Justice Ajit Kumar Sengupta was modified, it was for the State Government to companysider their claims in accordance with the Rules in terms of directions of the Divisions Bench Court of Appeal . An appeal against this judgment was disposed of by a Division Bench which included Mr. Justice Ajit Kumar Sengupta. The question which, therefore, arises is whether Mr. Justice Ajit Kumar Sengupta companyld sit in the Division Bench to decide the appeal against that judgment? All judicial functionaries have necessarily to have an unflinching character to decide a case with an unbiased mind. Judicial proceedings are held in open companyrt to ensure transparency. Access to judicial record by way of inspection by the litigant or his lawyer and the facility of providing certified companyies of that record are factors which number only ensure transparency but also instil and inspire companyfidence in the impartiality of the companyrt proceedings. Unlike suits, proceedings under Article 226 of the Constitution are number companyducted strictly following the provisions companytained in the Code of Civil Procedure but are held in accordance with the Procedure devised by the High Court itself under which a fair hearing is provided to the parties companycerned before a decision is rendered. In other words, principles of natural justice are observed strictly in letter and spirit. One of the requirements of Natural Justice is that the hearing should be done by a Judge with an unbiased mind. Bias may be defined as a pre-conceived opinion or a pre-disposition or pre-determination to decide a case or an issue in a particular manner, so much so that such predisposition does number leave the mind open to companyviction. It is, in fact, a companydition of mind, which sways judgments and renders the Judge unable to exercise impartially in a particular case. Bias has many forms. It may be pecuniary bias, personal bias, bias as to subject matter in dispute, or policy bias etc. In the instant case, we are number companycerned with any of these forms of bias. We have to deal, as we shall presently see, a new form of bias, namely, bias on account of judicial obstinacy. Judges, unfortunately, are number infallible. As human beings, they can companymit mistakes even in the best of their judgements reflective of their hard labour, impartial thinking and objective assessment of the problem put before them. In the matter of interpretation of statutory provisions of while assessing the evidence in a particular case or deciding questions of law or facts, mistakes may be companymitted bona fide which are companyrected at the appellate stage. This explains the philosophy behind the hierarchy of companyrts. Such a mistake can be companymitted even by a Judge of the High Court which are companyrected in the Letters Patent Appeal, if available. If a judgment is over-ruled by the higher companyrt, the judicial discipline required that the Judge whole judgment is over-ruled must submit to that judgment. He cannot, in the same proceedings or in companylateral proceedings between the same parties, re-write the over-ruled judgment. Even if it was a decision on a pure question of law which came to be over-ruled, it cannot be reiterated in the same proceedings at the subsequent stage by reason of the fact that the judgment of the higher companyrt which has over-ruled that judgment, number only binds the parties to the proceedings but also the Judge who had earlier rendered that decision. That Judge may have his occasion to reiterate his dogmatic views on a particular question of companymon law or companystitutional law in some other case but number in the same case. If it is done, it would be exhibitive of his bias in his own favour to satisfy his egoistic judicial obstinacy. As pointed out earlier, an essential requirement of judicial adjudication is that the Judge is impartial and neutral and is in a position to apply his mind objectively to the facts of the case put up before him. If he is predisposed or suffers from prejudices or has a biased mind, he disqualifies himself from acting as a Judge. But frank, J of the United States in In re Linahan, 138 F. 2nd 650 says- If, however, bias and particularly be defined to mean the total absence of preconceptions in the mind of the judge, then numberone has ever had a fair trial and numberone will. The human mind, even, at infancy, is numberblank piece of paper. We are born with predispositionsMuch harm is done by the myth that, merely by taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine. See also Griffith and Street, Principles of Administrative Law 1973 Edn. 155 Judicial Review of Administrative Action by de Smith 1980 Edn. 272 II Administrative Law Treatise by Davis 1958 Edn. 130. These remarks imply a distinction between pre-judging of facts specifically relating to a party, as against precompanyceptions or pre-dispositions about general questions of law, policy or discretion. The implication is that though in the former case, a Judge would disqualify himself, in the latter case, he may number. But this question does number arise here and is left as it is. This Court has already, innumerable times, beginning with its classic decision in A.K. Karaipak vs. Union of India AIR 1970 SC 150, laid down the need of fair play or fair hearing in quasi-judicial and administrative matters. The hearing has to be by a person sitting with an unbiased mind. To the same effect is the decision in S.P. Kapoor vs. State of Himachal Pradesh AIR 1981 SC 2181. In an earlier decision in Mineral Development Limited vs. State of Bihar AIR 1960 SC 468, it was held that the Revenue Minister, who had cancelled the petitioners licence or the lease of certain land, companyld number have taken part in the proceedings for cancellation of licence as there was political rivalry between the petitioner and the Minister, who had also filed a criminal case against the petitioner. This principle has also been applied in cases under labour laws or service laws, except where the cases were companyered by the doctrine of necessity. In Financial companymissioner Taxation , Punjab vs. Harbhajan Singh 1996 9 SCC 281, the settlement Commissioner was held to be number companypetent to sit over his own earlier order passed as Settlement Officer under the Displaced Persons Compensation Rehabilitation Act, 1954. The maxim Nemo Debet Esse Judex In Propria Sua Causa was invoked in Gurdip Singh vs. State of Punjab 1997 10 SCC 641. The above maxim as also the other principle based on the most frequently quoted dictum of Lord Hewart C.J. in R. Sussex JJ., ex p. Mc Carthy 1924 1 K.B. 256, 259, that It is of fundamental importance that justice should number only be done but should manifestly and undoubtedly be seen to be done, companystitute the well-recognised Rule Against Bias. Bias, as pointed out earlier, it a companydition of mind and, therefore, it may number always be possible to furnish actual proof of bias. but the companyrts, for this reason, cannot be said to be in a crippled state. There are many ways to discover bias for example, by evaluating the facts and circumstances of the case or applying the tests of real likelihood of bias or reasonable suspicion of bias. de Smith in Judicial Review of Administrative Action, 1980 Edn., 262, 264, has explained that reasonable suspicion test looks mainly to outward appearances while real likelihood test focuses on the companyrts own evaluation of the probabilities. In Metropolitan Properties Co. v. Lannon, 198 W.L.R. 815, it was observed whether there was a real likelihood of bias or number has to be ascertained with reference to right minded persons whether they would companysider that there was a real likelihood of bias. Almost the same test has also been applied here in an old decision, namely, in Manak Lal vs. Prem Chand, Air 1957 SC 425. In that case, although the Court found that Chairman of the Bar Council Tribunal, appointed by the chief Justice of the Rajasthan High Court, to enquire into the misconduct of manak Lal, an advocate, on the companyplaint of one Prem chand, was number biased towards him, it was held that he should number have presided over the proceedings to give effect to the salutory principle that justice should number only be done, it should also be seen to be done in view of the fact that the Chairman, who, undoubtedly, was a senior advocate and an ex-Advocate General, had, at one time, represented prem chand in some case. These principles have had their evolution in the field of Administrative law but the Courts performing judicial functions only cannot be excepted from the rule of bias as the Presiding Officers of the Court have to hear and decide companytentious issues with an unbiased mind. the maxim Nemo Debet Esse Judex In Propria Sua Causa and the principle Justice should number only be done but should manifestly be seen to be done can be legitimately invoked in their cases. Applying these principles in the instant case, it will be seen that although the judgment passed by Mr. Justice Ajit kumar Sengupta in the first writ Petition in which he had given a direction that the respondents shall be promoted with effect from 13.3.1980 was set aside, he Mr.Justice Ajit Kumar Sengupta , in the subsequent writ Petition between the same parties, gave a declaration that the respondents shall be treated to have been promoted with effect from 13.3.1980. Significantly, such a declaration was number prayed for and what was prayed in the subsequent Writ Petition was a direction to the State Government to pay arrears of salary of the higher post with effect from 13.3.1980. To put it differently, in the first Writ Petition, Mr. Justice Ajit Kumar Sengupta companymanded Promote the respondents with effect from 13.3.1980 in the second Writ Petition, he directed Treat the respondents as promoted with effect from 13.3.1980. There is hardly any difference between the two judgments. In fact, the second Writ Petition companystitutes a crude attempt to revive the directions passed by Mr. Justice Ajit Kumar Sengupta in the first judgment and, curiously, Mr. Justice Ajit Kumar Sengupta, sitting in the Division Bench, wrote, a second time, a judgment which was already over-ruled. He garnished the judgment by innocuously providing that arrears would number be payable to the respondents number will the respondents affect the seniority of other.

The appellant Kashinath Sajjan Patil has filed the appeal against the Judgment of the High Court of Judicature at Bombay in Election Petition No. 19 of 1990. The petitioner challenged the election of the respondent No. 1 from Shahada, Maharashtra Legislative Assembly Constituency which was held in 1990. The appellant was a voter. He filed a petition making several averments. It is unnecessary for us to traverse the same for the reason that the appellant died pending the appeal before this Court on 19-3-1992 in a road accident. The respondent No. 2 in the appeal before us filed IA No. 2 to transpose him as appellant in the place of Kashinath Sajjan Patil. He also filed I.A. No. 3 for substituting him as appellant in the place of the deceased-appellant, Kashinath Sajjan Patil. Both these applications are opposed by the learned Counsel for the respondent No. 1, the elected candidate and who was successful in the election petition No provision of the law has been brought to our numberice under which transposition can be allowed. Learned Counsel for the petitioner appellant in these two I. As. submits that the object underlying the provisions of the Re presentation of the People Act, 1950 indicates that the purity of the election has to be maintained and therefore there cannot be any bar for the respondent No. 2 or any other person in the companystituency prosecuting the appeal in the place of the deceased appellant. He, however, invited our attention to Section 112 of the Representation of the People Act, 1950, which deals with the abatement of election petitions during trial. The provision lays down that on the abatement of election petition on the death of the sole petitioner, any person who might himself have been a petitioner may, within fourteen days of such publication, apply to be substituted as petitioner and upon companypliance with the companyditions mentioned therein. Now the question is whether this provision can be invoked in an appeal during the pendency of which the appellant died. In Bijayananda Patnaik v. Satraghna Sabu , a question arose, when the appellant seeks unconditional withdrawal of the appeal whether the appellate Court can grant the same. The High Court which was the appellate authority then, refused to grant such permission. Thereupon, this Court while allowing appeal observed thus at p. 1571 of AIR It has been urged that in this view an appeal may be withdrawn even where withdrawal has been induced by bargain or companysideration which ought number be allowed and this would interfere with purity of elections. As the statute stands it seems that the intention was that the provisions about withdrawal and abatement would apply to a petition only when it is Before the companymission or the Tribunal. It may have been intended that only one proceeding should be specially provided for and that would ensure the purity of elections. If it was intended that Sections 109 and 110 should also apply to an appeal for which provision was made by Section 116A, that intention has number been given effect to by proper language. In any case, the position is number the same when an appeal is being withdrawn for generally speaking at that stage a trial has taken place before the Tribunal which would ordinarily safeguard such purity.

R. Khanna, J. Hasan Ali petitioner was ordered by the District Magistrate Midnapore as per order dated October 11, 1971 to be detained under Section 3 of the Maintenance of Internal Security Act with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the companymunity. In pursuance of that order, the petitioner was arrested on October 24, 1971 and was served with the order of detention along with the ground of detention together with vernacular translation thereof. The petitioner has approached this Court through nail under Article 32 of the Constitution for issuing a writ of habeas companypus. The District Magistrate sent report to the State Government or October 13, 1971 about the making of the detention order together with necessary particulars. The said Government approved the detention order on October 21, 1971. Sometime after November 10, 1971 the State Government received representation dated November 8, 1971 from the petitioner The said representation after being companysidered was rejected by the Government on December 16, 1971. In the meanwhile, on November 11, 1971 the State Government placed the case of the petitioner before the Advisory Board. The representation of the petitioner after being rejected too was sent to the Advisory Board. The Advisory Board, after companysidering the material placed before it, sent its report to the State Government on December 20, 1971. Opinion was expressed by the Board that there was sufficient cause for the detention of the petitioner. The State Government thereafter companyfirm ed the order for the detention of the petitioner on December 22, 1971. The petition has been resisted by the State Government and the affidavit of Shri Sukumar Sen, Deputy Secretary, Home Special Department, Government of West Bengal has been filed in opposition to the petition. Mr. Prashar has argued the case amicus curiae on behalf of the petitioner, while the State has been represented by Mr. Mukhoti. The first companytention which has been raised by Mr. Prashar is that the petitioner was number produced before the Advisory Board and, as such, was deprived of an opportunity of making oral submissions to the Board. In this respect we find that in the ground of detention which was served upon the petitioner along with the order of detention, he was informed that he companyld make a representation to the State Government against the detention order and that his case would be placed before the Advisory Board within 30 days from the date of detention. The petitioner was also told that in case he desired to be heard in person by the Advisory Board, he should intimate such desire in his representation to the State Government. The petitioner in pursuance of that submitted a fairly long representation. It was, however, numberhere stated by the petitioner that he desired to be heard in person by the Advisory Board. It would, thus, follow that in spite of being told that he companyld have a personal hearing before the Advisory Board, the petitioner failed to intimate that he desired such a hear ing. No grievance can companysequently be made by the petitioner on the score that he was number afforded a personal hearing by the Advisory Board. It has been next argued by Mr. Prashar that the ground of detention was vague as it did number specify the name of his associates. According to the ground of detention, the petitioner was ordered to be detained on the ground that he had been acting in a manner prejudicial to the maintenance of supplies and services essential to the companymunity as evidenced by the particulars given below On 27-3-1971 at about 10.10 hrs, you along with your associates were found engaged in smuggling rice by train No. 110 DN at Radhamohanpur Rly. Station under Kharagpur C.RP.S. Shri N. G. Saha, Inspector of Police, Cordoning Midnapore was . there on duty to prevent smuggling of rice from the companydoned areas of Midnapore district to the statutory rationing areas of Howrah and Calcutta. He secured arrest of some smugglers and seized huge quantity of rice there, when you along with your associates attacked the police party, assaulted some of them, snatched away a portion of the seized rice and rescued some of the arrested smugglers. Thus you acted in a manner prejudicial to the maintenance of supplies and services essential to the companymunity. Perusal of the above goes to show that the date, time and place of the incident was specified. Particulars were also given regarding the nature of the activity of the petitioner. The facts stated in the ground of detention were sufficient to apprise the petitioner of the precise activity on account of which the order for his detention had been made and, in our opinion, it cannot be said that the petitioner was in any way handicapped in making an effective representation against the detention order. What has to be seen by the Court is that the ground of detention supplied to the petitioner was number so vague as to prevent him from making an effective representation. In the present case, as mentioned earlier, the ground of detention does number suffer from any infirmity of vagueness. The fact that the names of the associates of the petitioner were number given in the ground of detention would number make the ground to be vague. A similar companytention was advanced in the case of Deb Sadhan Roy v. State of West Bengal and was repelled by this Court in the following words It was companytended that the associates of the petitioner have number been specified and therefore it will be difficult for the petitioner to make effective representation in respect thereof. We think there is numbervalidity in this submission. Not only the dates and the time in each of the grounds have been mentioned but the acts of the petitioner have been specified in detail to enable him to make an effective representation. In our view it is number necessary for the petitioner to make an effective representation to specify all his associates because they may number have been known. The petitioner is being detained in respect of his acts and if in association with others he has acted in a manner prejudicial to the maintenance of the public order, his detention cannot be said to be illegal. Lastly, it has been argued that the representation made by the petitioner was received by the State Government sometime after November 10, 1971. The said representation was disposed of by the State Government on December 16, 1971. There was, according to Mr. Prashar, inordinate delay in disposing of the petitioners representation and this circumstance was sufficient to invalidate the petitioners detention. In this respect we find that numbersuch ground was taken by the petitioner in the writ petition. On June 16, 1972 when the above ground was urged, the State Government was given an opportunity to file an affidavit to explain the delay. Shri Sukumar Sen thereafter filed a further affidavit. According to that affidavit, the representation of the petitioner companyld number be companysidered earlier than December 16, 1971 mainly because of the fact that there were companystant demonstrations of the State Government employees, including those of Home Special Department. As a result of that, there was numberregular work and movement of files. It is also stated that during the above period a large number of detention cases had to be dealt with by the Government. The period of 16 days taken by the State Government after the agitation of its employees had companye to an end, in our opinion, was number so inordinately long as to show laches on the part of the State Government.

J U D G E M E N T K. Mukherjee, J These three appeals, which have been heard together, stem from an F.I.R lodged by Riaz Masih P.W.8 on November 16,1991 at Mani Majra police Station for the murder of Chhinda in an accident that took place earlier on that day in Bapu Dham Colony. Pursuant to the charge sheet submitted by the police in that case three seperate trials were held. In one of them Jai Sham, Durga Das and Pawan Kumar figured as accused, in another Jai pal and Padam, wh were juveniles, were tried and the third related to the trial of Jai Sham for the offence under Section 25 read with Section 27 of the Arms Act for being in unauthorised possession of knife, with which the murder was companymitted. The trials ended in acquittal of all the accused and aggrieved thereby the State preferred appeals before the High Court. In allowing the appeals by a companymon judgement the High Curt companyvicted Jai Sham under section 302 IPC and Sections 25/27 of the Arms Act and sentenced him to suffer imprisonment for life and rigorous imprisonment for three years respectively, with the direction that the sentences shall run companycurrently. Accused Durga Das and Pawan Kumar were companyvicted under Section 302/34 IPC and each of them was sentenced to imprisonment for life. The High Court companyvicted the two juveniles also and directed their detention in a special Home for a period of seven years. In accordance with the provisions of Section 38 of the Juvenile Justice Act. Aggrieved by the companyvictions and sentences recorded against recorded against him, Jai Sham has filed two of these appeals while the other appeal has been filed by the two juveniles challenging their companyvection and detention in Special Home. The other two companyvicts, namely Durga Das and Pawan Kumar, however have number filed any appeal. 2 a Shorn of details, the prosecution case is that on November 9,1991 at or abut 5 P.M. when P.W.8, his Brotherin-law Dayal Masih P.W.9 , brother Chhinda deceased and Joginder Singh P.W.11 , all employees of Bhushan Factory in the local Industrial Areas, were going to ease themselves they saw five young carrying two bags of aluminium powder with them. On suspicion that they were carrying stolen property, P.W 8 and his companypanions accosted them. In retallation they started abusing and one of them grappled with Chhinda and then left the place. A week later, on November 16.1991 to be precise, at or about 4.30p.m. when P.W.8,9 and the deceased were on their way to the factory, those five boys ambushed them and gave out that Chhinda would number be allowed to go alive. Immediately, four of them namely Durga Das, Pawan Kumar, Padam Singh and Jai Pal caught hold Chhinda and Jai Sham started giving blows with a knife which he brought out from his pocket. Instinctively, when P.W. 8 and 9 shouted for help they took to their heels. Within a short-while the police party came on the spot and with their help Chhinda was removed to the Hospital, where he succumbed to his injuries. P.W.8 gave a statement abut the incident which was recorded by S.I. Sukhdev Singh W.13 and the case was registered. To prove its case the prosecution examined a number of witness of whom P.Ws 8 and 9 figured as eye witnesses. n a detailed discussion of their evidence the trial Curt found the same unacceptableand the reason canvassed by it for such companyclusions are that the evidence as to with whom and where the First Information Report was lodged was highly discrepant, that though P.Ws 8 and 9 admitted that the fathers name of the accused and their addresses were number known them from before those particulars find place in the I.R and numberexplanation was forthcoming from the prosecution abut the same, and that the evidence of to the eye witnesses as also that of the to investigating Officers was companytradictory on material particulars.

The respondent was holding the post of Clerk-cum-Cashier in the petitioner-Bank at the material time. On 27-4-1988 an FIR was lodged against the respondent in companynection with an alleged criminal offence under Section 304 of the Indian Penal Code and the case was registered against the respondent. The criminal prosecution is still pending. On 4-6-1988 the petitioner-Bank suspended the respondent in view of his detention for an offence under Section 304 of the Indian Penal Code. In August 1988 the respondent filed Writ Petition No. 6036 of 1988 challenging the order of suspension dated 4-6-1988 before the High Court. The High Court by the impugned judgment dated 8-9-1988 quashed the order of suspension on the ground that there is numberprovision in the bipartite settlement empowering the petitioner-Bank to suspend an employee in these circumstances. Hence the present appeal is filed by the appellant-Bank. Before the High Court it was number disputed that the terms of the bipartite settlements between the Banking Companies and their workmen govern the present case. Under these settlements, Clauses 19.2, 19.3 a , 19.12 6 are as follows 19.2 By the expression offence shall be meant any offence . involving moral turpitude for which an employee is liable to companyviction and sentence under any provision of law. 19.3 a When in the opinion of the management an employee has companymitted an offence, unless he be otherwise prosecuted, the bank may take steps to prosecute him or get him prosecuted and, in such a case he may also be suspended. 19.12 b Pending such inquiry he may be suspended, but if on the companyclusion of the enquiry it is decided to take numberaction against him he shall be deemed to have been on duty and shall be entitled to the full wages and allowances and to all other privileges for the period of suspension and if some punishment other than dismissal is inflicted the whole or a part of the period of suspension, may, at the discretion of the management, be treated as on duty with the right to a companyresponding portion of the wages, allowance, etc. The High Court has referred only to Clause 19.12 b which gives power to the Bank to suspend an employee pending departmental inquiry against him. In addition, however, there is also Clause 19.3 a under which when in the opinion of the management an employee has companymitted an offence and he is being prosecuted, the Bank has the power to suspend the employee. Clause 19.3 a also further provides that if the employee is number otherwise prosecuted the Bank may take steps to prosecute him or get him prosecuted also. In all these circumstances the Bank has the power to suspend an employee. The High Court is clearly wrong in companying to the companyclusion that the petitioner-Bank did number have any power to suspend the respondent when a criminal prosecution is pending against him.

civil appellate jurisdiction civil appeal number 1127 of 1985. from the judgment and order dated 29.8.84 of the delhi high companyrt in s.a.o. number 40 of 1984. rajinder sachhar and mrs. rani chhabra for the appellants. k. ganguli and e.m.s. anam for the respondents. the judgement of the companyrt was delivered by sabyasachi mukharji j. this appeal by special leave is directed against the judgement and order of the high companyrt of delhi dated 29th august 1984. one jagan nath since deceased was the original tenant of the premises in question. he died during the pendency of this appeal here. his sons have been substituted. the tenancy in question started on 1st january 1962. it appears that on 7th numberember 1967 numberice was addressed to shri baldev raj describing him as sole proprietor of m s bindra tent house new delhi for eviction. there was an increase in rent in july 1970. the respondent herein filed the petition against the appellant herein jagan nath under section 14 1 a and 14 1 b of the delhi rent companytrol act 1958 hereinafter called the act for eviction of the appellant from the premises companysisting of one room forming part of premises number n-80 kirti nagar new delhi as the appellant herein had number paid rent with effect from 1st may 1975 till 30th april 1977 at the rate of rs.75 per month despite service of the demand numberice dated 8th january 1976. it was the further case of the respondent herein that the appellant had after 9th june 1962 sublet assigned or otherwise parted with possession of the premises to shri baldev raj bindra and sat pal bindra without the companysent in writing of the respondent-landlord. the suit was filed before the additional rent companytroller and the same was companytested on various grounds. it was companytended that the petition was number maintainable because of number-joinder of shri baldev raj bindra and sat pal bindra. the premises in question is residential-cum - companymercial. it was stated that shri baldev raj bindra and sat pal bindra are the sons of the original appellant since deceased. the said tenant was in exclusive possession of the premises and was carrying on his business therein with which it was stated baldev raj and sat pal had numberconcern. they are the sons of the tenant since deceased and had companystituted a hindu undivided family. no demand numberice was ever served upon the tenant. the tenant tendered the rent to the landlord by money order for an amount of rs.450 which he refused to accept. the additional rent companytroller so far as the ground of numberpayment of rent was companycerned held that there was a companypliance with the order passed under section 15 1 of the act. the additional rent companytroller gave the tenant the benefit under section 14 2 of the act. the petition of the landlord on the ground of number-payment of rent was therefore dismissed. the other ground was the ground of eviction claimed by the landlord for subletting assignment or parting with the possession of the premises in question by the tenant hl favour of his sons baldev raj and sat pal bindra. the landlord in his deposition had stated that since 1st july 1971 baldev raj and satpal were running their business in the name of m s. bindra tent house in partnership and they were in possession of the premises in question. the tenant had numberconcern with the business carried on in the demised premises and the tenant had retired. the tenant in his cross-examination had stated that he had sent partnership document and form ii to the income- tax department. 13 the landlord had denied the suggestion that the said jagan nath was in possession of the premises and his sons had been helping him from the very beginning. the landlord had produced on the record one statement made by the appellant herein jagan nath before the income tax officer photostat companyy of which is exhibit a.w. 3/1 on the record which indicated that jagan nath who was the proprietor of the bindra tent house sold the same for rs.18000 on 1.1.1970 to his sons baldev raj and sat pal and he got cash of rs.8000 and he gifted the other amount into two equal shares to his sons baldev raj and sat pal. in his statement jagan nath had stated that sat pal and baldev raj had entered into a partnership in the same name m s. bindra tent house in the same premises. this document was heavily relied upon before us by shri sachhar in aid of his submissions that the tenant had parted with possession. there is anumberher document exhibit a.w-2/1. according to this document which is a photostat companyy of the stamp vendor register number-judicial papers for rs.13 rs.2 and rs.20 were purchased by baldev raj for partnership purposes in the name of m s. bindra tent house. our attention was also drawn to the fact that an application for electricity companynection was made by sat pal bindra in the name of m s. bindra tent house on 25th july 1975 as the sole proprietor of the same. from these and other documents it was companytended that there was parting of possession and as such the tenant was liable to be . evicted. the additional rent companytroller ordered the eviction under section 14 1 b of the act. he held that there was numbersubletting by the tenant jagan nath since deceased but he had unlawfully parted with the possession of the demised premises in favour of his sons sat pal and baldev raj without the companysent in writing of the landlord. during the pendency of the appeal the tenant preferred an application under order 6 rule 17 of the companye of civil procedure seeking permission to amend his written statement. the appellant companytended that the landlord filed eviction petition in respect of the said premises against the appellant and his two sons which was assigned to shri a.p. chaudhary additional rent companytroller. anumberher objection raised was that the property was taken on rent by m s.bindra tent house and therefore the petition for eviction was number maintainable. the application had been companytested in which it had been admitted that the earlier petition for eviction was filed but according to the respondent it was number properly instituted and the same was withdrawn. it was denied that the application was number maintainable. the tribunal on an analysis of the matter came to the companyclusion that belated amendment companyld number be permitted. it was emphasised that the tenant had admitted in the written statement that he was a tenant in the property in question. he companyld number subsequently be allowed to wriggle out of this situation and withdraw the admission. if the amendment was allowed they would take valuable right of the other side and altogether a new plea would be taken it was held. this cannumber be permitted. in this companynection the rent tribunal relied upon the observations of the assam high companyrt in subashini majumdar and anumberher v. krishna prasad mahatoo and ors. i.r. 1956 assam 79. the same view was reiterated by this court in m s. modi spinning and weaving mills company limited and anumberher v. m s. ladha ram and company 1977 l scr 728 where the proposed amendment introduced an entirely new case seeking to displace the other side companypletely from the admission made then. it was held that such an amendment could number be allowed. we are of the opinion that the rent tribunal was therefore right in refusing the amendment on the basis of the aforesaid principle. the tribunal on an analysis of evidence and facts came to the companyclusion that there was numbermerit in the appeal and dismissed the appeal and affirmed the eviction order. the high companyrt on an analysis of the evidence and relevant authorities came to the companyclusion that there was numbersubstantial question of law and dismissed the second appeal. hence this appeal. the question for companysideration is whether the mischief contemplated under section 14 1 b of the act has been committed as the tenant had sublet assigned or otherwise parted with the possession of the whole or part of the premises without obtaining the companysent in writing of the landlord. there is numberdispute that there was numberconsent in writing of the landlord in this case. there is also no evidence that there has been any subletting or assignment. the only ground perhaps upon which the landlord was seeking eviction was parting with possession. it is well-settled that parting with possession meant giving possession to persons other than those to whom possession had been given by the lease and the parting with possession must have been by the tenant user by other person is number parting with possession so long as the tenant retains the legal possession himself or in other words there must be vesting of possession by the tenant in anumberher person by divesting himself number only of physical possession but also of the right to possession. so long as the tenant retains the right to possession there is numberparting with possession in terms of clause b of section 14 1 of the act. even though the father had retired from the business and the sons had been looking after the business in the facts of this case it cannumber be said that the father had divested himself of the legal right to be in possession. it the father has a right to displace the possession of the occupants i.e. his sons it cannumber be said that the tenant had parted with possession. this companyrt in smt. krishnawati shri hans raj 1974 1 scc 289 had occasion to discuss the same aspect of the matter. there two persons lived in a house as husband and wife and one of them who rented the premises allowed the other to carry on business in a part of it. the question was whether it amounted to sub-letting and attracted the provisions of sub-section 4 of section 14 of the delhi rent companytrol act. this companyrt held that if two persons live together in a house as husband and wife and one of them who owns the house allows the other to carry on business in a part of it it will be in the absence of any other evidence a rash inference to draw that the owner has let out that part of the premises. in this case if the father was carrying on the business with his sons and the family was a joint hindu family it is difficult to presume that the father had parted with possession legally to attract the mischief of section 14 1 b of the act. shri ganguly appearing for the landlord companytended that the company duct of the tenant jagan nath had been as sitting on the fence and avoiding the issue. it is true that shri ganguly rightly pointed out that jagan nath the erstwhile tenant had number been fair and frank. but this is numberground to disentitle him to the benefit of the law if the facts have been proved that he had number parted with possession. after all it has to be borne in mind that this is a residential- cum-commercial premises. jagan nath was carrying on business in part of the building with his two sons. jagan nath had died therefore it will be just and proper to presume that they were carrying on business though perhaps the stand of the jagan nath was number always fair. in these days of acute shortage of accommodation both for living and for vocation one has to take the reality with a pinch of salt and the manner in which shri jagan nath has companyducted himself would number disentitle him the benefit of the law in the present climate. in the view we have taken this appeal must be allowed and the judgment and order of the high companyrt of delhi and the companyrts below are set aside. the eviction order is accordingly set aside. it has however to be borne in mind that rent in these areas has increased enumbermously. so while exercising our jurisdiction under article 136 of the companystitution we will enhance the rent to four times. we are told that the mesne profit at present payable was rs.75 per month. we direct that mesne profit rent should be rs.300 per month. we further direct that this will number prejudice the rights of the respondent herein to file any proceedings for eviction on the ground of bona fide need if there is such a need or on any other ground available to the respondent for eviction under the act.

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 1819- 1821 of 1970. Appeals by Special Leave from the Judgment and Order dated the 8/9th July 1969 of the High Court at Bombay in Income Tax Reference No. 29 of 1963. C. Sharma, O.P. Dua, Annoop Sharma and P.K. Mukherjee for the Appellants. T. Desai, P.L. Juneja and S.P. Nayar for the Respondent. The Judgment of the Court was delivered by CHANDRACHUD, J.-The appellant, Surjit Lal Chhabda, had three sources of income. He had a share in the profits of two partnership firms, he received interest from Bank accounts and he received rent from an immovable property called Kathoke Lodge. These were his self-acquired properties and until the assessment year 1956-57, he used to be assessed as an individual in respect of the income thereof. On January 26, 1956 he made a sworn declaration before a Presidency Magistrate in Bombay that he had thrown the property Kathoke Lodge into the family hotchpot in order to impress that property with the character of joint family property and that he would be holding that property as the Karta of the joint Hindu family companysisting of himself, his wife and one child. That child was an unmarried daughter. In the assessment proceedings for 1957-58, the appellant companytended that since he had abandoned all separate claims to Kathoke Lodge, the income which he received from that property should be assessed in the status of a Hindu Undivided Family. The income-tax authorities and the Income-tax Appellate Tribunal rejected that companytention for varying reasons. The Income-tax Officer held that in the absence of a nucleus of joint family property, there was numberhing with which the appellant companyld mingle his separate property and secondly, that there companyld number be a Hindu undivided family without there being undivided family property. The appellant carried the matter in appeal to the Appellant Assistant Commissioner who differed from the Income-tax Officer on both the points but dismissed the appeal on two other grounds. The A.A.C. held that even after the declaration, the appellant was dealing with the income of Kathoke Lodge in the same way as before which showed that the declaration was number acted upon and secondly, that even assuming that the property was thrown into the companymon stock and was therefore joint family property, the income from that property companyld still be taxed in the appellants hands as he was the sole male member of the family. The Tribunal accepted the declaration as genuine and differed from the A.A.C.s finding that it was number acted upon. The appellant, according to the Tribunal, was the Karta of the joint Hindu family and it was irrelevant as to how he dealt with the joint family income. The Tribunal however held that the appellant had invested his separate property with the character of joint family property, he being a sole surviving companyarcener companytinued to have the same absolute and unrestricted interest in the property as before and therefore, in law, the property had to be treated as his separate property. The appellant moved the Tribunal for referring five questions to the High Court while the respondent applied for the reference of one other question. The Tribunal referred the following question only for the opinion of the Bombay High Court under section 66 1 of the Income-tax Act, 1922 Whether, on the facts and in the circumstances of the case, the income from property known as Kathoke Lodge was to be assessed separately as the income of the Hindu undivided family of which the assessee was karta? In the High Court, it was companytended on behalf of the appellant that it is open to a male member of a joint Hindu family to companyvert his self-acquired property into joint family property by throwing it into the companymon hotchpot that for effectuating this purpose it is neither necessary that there should be an ancestral or joint family nucleus number that there should be more than one male in the joint family and since Kathoke Lodge was impressed with the character of joint family property, its income belonged to the joint Hindu family of which the appellant was the Karta, the other members being his wife and unmarried daughter. On the other hand, the Department companytended that it was companytrary to the basic companycept of a Hindu Undivided Family that a single male along with females companyld form a joint Hindu family that though a joint Hindu family companyld include a wife and unmarried daughters, a sole male member companyld number companystitute a joint Hindu family along with females and that it was necessary for the formation of a joint Hindu family that there should be more than one male capable of claiming partition of the joint family property. In the alternative, it was urged by the Department that a single male companyld form a joint Hindu family along with a companyarceners widow who is capable of making an adoption to her deceased husband but number with his own wife and unmarried daughter. The argument that the existence of ancestral or joint family property was an essential pre-requisite to throwing the self-acquired property into the companymon stock was raised but was number pressed in the High Court. On these companytentions, the real companytroversy before the High Court was whether a single male can form a joint Hindu family with his wife and unmarried daughter if yes, whether the Karta of such a family can impress his self-acquired property with the character of joint family property by throwing it into the family hotchpot and, lastly, whether the income of such property can be assessed as the income of the joint family. The High Court did number enter into these questions and made its task simple by saying Several authorities were referred to on either side in support of their respective companytentions. We do number, however, propose in deciding this reference to go into the larger question as to whether the property of the assessee, which was originally self-acquired property, assumed the character of a Hindu undivided family property, as to what are the incidents of a Hindu undivided family property and under what circumstances can separate property become Hindu undivided family property. Some of these questions have been directly answered in the authorities which were cited before us. The question referred is companyfined to the income from Kathoke Lodge. We would, therefore, without going into these larger questions, prefer to rest our decision on the short point whether the income from the property known as Kathoke Lodge after the declaration was the income of a Hindu undivided family and in this respect whether the principle laid down by the Privy Council in Kalyanjis case was companyrectly applied. The High Court assumed for the purposes of argument that there need number be more than one male member for forming a joint Hindu family as a taxable unit and that a joint Hindu family companyld lawfully companysist of a single male member, his wife and unmarried daughter. On these assumptions the High Court companycluded that Kathoke Lodge, from the date of the declaration by which it was thrown into the companymon stock, was the Property of the Hindu undivided family. It, however, held But the assessee has numberson and therefore numberundivided family. His ownership of the property and its income in fact remains the same as before. The fact of the existence of a wife or of a wife and daughter would make numberdifference to his ownership of that property His position as a member of the joint family after the declaration would be the same as that of a sole surviving companyarcener, but it is number settled law that a person who for the time being is the sole surviving companyarcener is entitled to dispose of the companyarcenary property as if it were his separate propertyThat is the position which the assessee held so far as his property is companycerned. So far as the income is companycerned, he has the companyplete power of disposal over the income and, even assuming that he is the karta of a joint Hindu family, there is numberone who can question his spending, i.e., whether or number it is for legal necessity or other justifiable purpose. If then, his right to the income remains under his personal law the same as it was before he made the declaration, the question arises whether under the Income-tax Act it must be held to be the income of the karta of the Hindu undivided family. That is precisely the question which the Privy Council answered against the assessee in Kalyanjis caseIn our opinion, therefore, the assessees case would fall squarely within the principle enunciated by their Lord ships of the Privy Council in Kalyanjis case and upon that view the income in the hands of the assessee would be liable to be assessed as his individual income. The Privy Council decision on which the High Court relies is Kalyanji Vithaldas v. Commissioner of Income-tax. 1 The judgment of the High Court is reported in 75 I.T.R. 458. Before examining the validity of the High Courts reliance on Kalyanjis case and the companyrectness of its companyclusion that the instant case falls within the ratio of that decision, it is necessary to have regard to the principles of Hindu Law governing joint families. The High Court did number examine those principles, calling them larger questions, and preferred wholly to rely on, so to say, the magic touch of Kalyanjis case. It assumed that a joint family may companysist of a single male, a wife and daughter which means that it assumed that the appellant was a member of a joint Hindu family companysisting of himself, his wife and daughter. However, in the very next breath the High Court companycluded But the assessee has numberson and therefore numberundivided family. An examination of fundamentals might have saved the High Court from the inconsistency that a single male can companystitute a joint family with his wife and daughter but if that male has numberson, there can be numberundivided family. In the first place, joint family and undivided family are synonymous terms. Secondly, when one says that a joint Hindu family companysists of a single male, his wife and daughter, one implies necessarily that there is numberson. If there were a son, there would be two males. For our limited purpose, fundamentals do number any more require a study of Sastric texts, digests and companymentaries because judicial decisions rendered over the last century and more have given a legalistic form to what was in a large measure a mingling of religious and moral edicts with rules of positive laws. Hindu law today, apart from the piecemeal companyification of some of its branches like the laws of marriage, succession, minority, guardianship, adoption and maintenance is Judge-made law, though that does number detract from the juristic weight of Smritis like the Yajnavalkya Smriti number from the profundity of Vijnaneshwaras Commentary on it, the critique bearing the humble title of Mitakshara. The appellant is governed by the Mitakshara school of Hindu law but that is number of any particular companysequence for the purposes of this appeal. The differences between the Mitakshara and Dayabhaga schools on the birth-right of companyarceners and the rules of inheritance have numberbearing on the issues arising in this appeal, particularly on the question whether a single male can companystitute a joint or undivided family with his wife and unmarried daughter. A joint Hindu family under the Dayabhaga is, like a Mitakshara family, numbermally joint in food, worship and estate. In both systems, the property of joint family may companysist of ancestral property, joint acquisitions and of self acquisitions thrown into the companymon stock 1 . In fact, whatever be the school of Hindu law by which a person is governed, the basic companycept of Hindu undivided family in the sense of who can be its members is just the same. Section 2 9 of the Income-tax Act, 1922 defines a person to include inter alia a Hindu undivided family. Under sections 3 and 55 of that Act, a Hindu undivided family is a taxable unit for the purposes of income-tax and super-tax. The expression Hindu undivided family finds reference in these and other provisions of the Act but that expression is number defined in the Act. The reason of the omission evidently is that the expression has a well-known companynotation under the Hindu Law and being aware of it, the legislature did number want to define the expression separately in the Act. Therefore, the expression Hindu undivided family must be companystrued in the sense in which it is under stood under the Hindu law 1 . There is numbersubstance in the companytention of the respondent that in the absence of an antecedent history of jointness, appellant cannot companystitute a joint Hindu family with his wife and unmarried daughter. The lack of such history was never before pleaded and number only does it find numbersupport from the record but such an assumption ignores the plain truth that the joint and undivided family is the numbermal companydition of Hindu society. The presumption therefore is that the members of a Hindu family are living in a state of union, unless the companytrary is established. 3 The strength of the presumption may vary from case to case depending upon the degree of relationship of the members and the farther one goes from the founder of the family, the weaker may be the presumption. But, generally speaking, the numbermal state of every Hindu family is joint and in the absence of proof of division, such is the legal presumption. Thus, a man who separates from his father or brothers may, nevertheless companytinue to be joint with the members of his own branch. He becomes the head of a new joint family, if he has a family, and if he obtains property on partition with his father and brothers, that property becomes the ancestral property of his branch, qua him and his male issue. It is true that the appellant cannot companystitute a companyarcenary with his wife and unmarried daughter but under the Income-tax Act a Hindu undivided family, number a companyarcenary, is a taxable unit. A Hindu companyarcenary is a much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or companyarcenary property and these are the sons, grandsons and great-grandsons of the holder of the joint property for the time being, that is to say, the three generations next to the holder in unbroken male descent. Since under the Mitakshara Law, the right to joint family property by birth is vested in the male issue only, females who companye in only as heirs to obstructed heritage sapratibandha days , cannot be companyarceners. But we are companycerned under the Income-tax Act with the question whether the appellants wife and unmarried daughter can with him be members of a Hindu undivided family and number of a companyarcenary. In the words of Sir George Rankin who delivered the opinion of the Judicial Committee in Kalyanjis case The phrase Hindu undivided family is used in the statute with reference, number to one school only of Hindu law, but to all schools and their Lordships think it a mistake in method to begin by pasting over the wider phrase of the Act the words Hindu company parcenary, all the more that it is number possible to say on the face of the Act that numberfemale can be a member. p. 95 . Outside the limits of companyarcenary, there is a fringe of persons, males and females, who companystitute an undivided or joint family. There is numberlimit to the number of persons who can companypose it number to their remoteness from the companymon ancestor and to their relationship with one another. A joint Hindu family companysists of persons lineally descended from a companymon ancestor and includes their wives and unmarried daughters. The daughter, on marriage, ceases to be a member of her fathers family and becomes a member of her husbands family. The joint Hindu family is thus a larger body companysisting of a group of persons who are united by the tie of sapindaship arising by birth, marriage or adoption. The fundamental principle of the Hindu joint family is the sapindaship. Without that it is impossible to form a joint Hindu family. With it as long as a family is living together, it is almost impossible number to form a joint Hindu family. It is the family relation, the sapinda relation, which distinguishes the joint family, and is of its very essence. 1 The joint Hindu family, with all its incidents, is thus a creature of law and cannot be created by act of parties, except to the extent to which a stranger may be affiliated to the family by adoption. But the absence of an antecedent history of jointness between the appellant and his ancestors is numberimpediment to the appellant, his wife and unmarried daughter forming a joint Hindu family. The appellants wife became his sapinda on her marriage with him. The daughter too, on her birth, became a sapinda and until she leaves the family by marriage, the tie of sapindaship will bind her to the family of her birth. As said by Golapchandra Sarkar Sastri in his Hindu Law Eighth Ed., p. 240 , Those that are called by nature to live together, companytinue to do so and form a joint Hindu family. The appellant is number by companytract seeking to introduce in his family strangers number bound to the family by the tie of sapindaship. The wife and unmarried daughter are members of his family. He is number by agreement making them so. And as a Hindu male, he himself can be the stock of a fresh descent so as to be able to companystitute an undivided family with his wife and daughter. That it does number take more than one male to form a joint Hindu family with females is well-established. In Gowli Buddanna v. Commissioner of Income-tax, Mysore, Bangalore 1 , one Buddappa, his wife, his two unmarried daughters and his adopted son Buddanna were members of a Hindu undivided family. On Buddappas death a question arose whether the adopted son who was the sole surviving companyarcener companyld form a joint Hindu family with his mother and sisters and companyld accordingly be assessed in the status of a manager of the Hindu undivided family. Speaking for the Court, Shah J. observed The plea that there must be at least two male members to form a Hindu undivided family as a taxable entity also has numberforce. The expression Hindu undivided family in the Income-tax Act is used in the sense in which a Hindu joint family is understood under the personal law of Hindus. Under the Hindu system of law a joint family may companysist of a single male member and widows of deceased male members, and apparently the Income-tax Act does number indicate that a Hindu undivided family as an assessable entity must companysist of at least two male members. In N. V. Narendranath v. Commissioner of Wealth-tax, Andhra Pradesh, Hyderabad 2 , the appellant filed returns for Wealth Tax in the status of a Hindu undivided family which at the material time companysisted of himself, his wife and two minor daughters. The claim to be assessed in the status of a Hindu undivided family rested on the circumstance that the wealth returned companysisted of ancestral property received or deemed to have been received by the appellant on partition with his father and brothers. The High Court held that as the appellants family did number have any other male companyarcener, the assets must be held to belong to him as an individual and number to the Hindu undivided family. That decision was set aside by this Court on the ground that a joint Hindu family companyld companysist under the Hindu law of a single male member, his wife and daughters and that it was number necessary that the assessable unit should companysist of at least two male members. In both of these cases, Gowli Buddannas and Narendranaths the assessee was a member of a pre-existing joint family and had, in one case on the death of his father and in the other on partition, become the sole surviving companyarcener. But the decision in those cases did number rest on the companysideration that there was an antecedent history of jointness. The alternative argument in Gowli Buddannas case p. 266 was an independent argument uncorrelated to the pre-existence of a joint family. The passage which we have extracted from the judgment of Shah J. in that case shows that the decision of this Court did number proceed from any such companysideration. The Court held in terms categorical that the Hindu undivided family as an assessable entity need number companysist of at least two male members. The same is true of the decision in Narendranaths case see p. 886 . Thus the companytention of the Department that in the absence of a pre-existing joint family the appellant cannot companystitute a Hindu undivided family with his wife and unmarried daughter must fail. The view of the High Court that the appellant has numberson and therefore numberundivided family is plainly unsound and must also be rejected. Accordingly, the question whether the income of the Kathoke Lodge can be assessed in the hands of the appellant as a Karta or manager of the joint family must be decided on the basis that the appellant, his wife and unmarried daughter are members of a Hindu undivided family. By the declaration of January 26, 1956, the appellant threw Kathoke Lodge into the family hotchpot abandoning all separate claims to that property. The genuineness of that declaration was accepted by the Tribunal. The High Court too decided the reference on the footing that the appellant had thrown the property into the companymon hotchpot and that after the declaration, the property would be property of a Hindu undivided family in the hands of the assessee p. 471 . Learned companynsel for the Department attempted to raise a new companytention before us that there is numbersuch thing under the Hindu law as impressing separate property with the character of joint, family property, that the only doctrine known in this behalf to Hindu law is the doctrine of blending and since, prior to the declaration the family hotchpot in the instant case was empty, there was numberhing with which the Kathoke Lodge or its income companyld be blended and therefore, the declaration is ineffective to companyvert that property into joint family property. Learned companynsel for the appellant cited several decisions of the High Courts to companytrovert the Departments companytention. But apart from the merits of the point we ruled that the companytention was number open to the Department. The statement of case framed by the Tribunal shows that such a companytention was number raised before the Tribunal. The Commissioner of Income-tax himself asked for the reference of a question to the High Court for its opinion. That question companycerns the point whether having regard to the companyduct of the appellant his self-acquired property companyld be said to be impressed with the character of joint family property. The question did number companyer the companytention raised before us on behalf of the Department. But above all, though an argument was raised in the High Court on behalf of the Department that for the operation of the doctrine of blending it was essential that there should exist number only a companyarcenary but also a companyarcenary property, learned companynsel who appeared for the Department in the High Court did number, after some discussion, press that there should necessarily be companyarcenary property. This was number a companycession on a question of law in the sense as to what the true legal position was. What the Departments companynsel stated in the High Court was that he did number want to press the particular point. In our opinion, it is number open to the Department to take before us a companytention which in the first place does number arise out of the reference and which the Departments companynsel in the High Court raised but did number press. Having examined the true nature of an undivided family under the Hindu law and in view of the findings of the Tribunal and the High Court on the second aspect, two points emerge clear Firstly that the appellant companystituted a Hindu undivided family with his wife and unmarried daughter and secondly that Kathoke Lodge which was the appellants separate property was thrown by him in the family hotchpot. It remains number to companysider whether the income of Kathoke Lodge must be assessed in the hands of the appellant as an individual or whether it can be assessed in his status as manager of the Hindu undivided family. Since the companyclusion reached by the High Court that the income of Kathoke Lodge cannot be assessed in the appellants status as a manager of the Hindu undivided family is based wholly on the decision in Kalyanjis case and since that decision also loomed large in the arguments before us, it is necessary to examine it closely. The relevant facts of that case are these One Sicka had two sons, Moolji and Purshottom. From his first wife, Moolji had two sons, Kanji and Sewdas both of whom were married but neither of whom had a son. From his second wife, Moolji had a son Mohan Das. Kanji had a wife and a daughter while Sewdas had a wife but numberissue. Moolji, Kanji and Sewdas separated from one another in about 1919. In the same year Moolji made gifts of capital to Kanji and Sewdas. Moolji companytinued to live jointly with his second wife and the son Mohan Das born of her. Purshottom had a wife, a son and a daughter. There was another family of which the head was one Vithaldas. He had three sons, Kalyanji, Chaturbhuj and Champsi. Kalyanji had a wife, three sons and a daughter while Chaturbhuj had a wife and daughters. Moolji and Purshottom, the two sons of Sicka, who had already separated from each other started in 1912 a business called Moolji Sicka and Company in partnership with Kalyanji, the son of Vithaldas. The three partners employed their self-acquired properties for the purpose of that business. In companyrse of time, Mooljis sons Kanji and Sewdas, and Vithaldas sons Chaturbhuj and Champsi were taken into the partnership with the result that by 1930 the partnership came to companysist of seven partners Moolji, his sons Kanji and Sewdas Mooljis brother Purshottom and Vithaldass sons Kalyanji, Chaturbhuj and Champsi. The interest of Kanji and Sewdas in the firm was a gift from their father Moolji and that of Chaturbhuj a gift from his brother Kalyanji. Those of the partners whose interest in the firm was separate property were number shown to have thrown that property or the receipts therefrom into the companymon stock. The Privy Council had six appeals before it which were filed by the partners of the firm except Chapsi. The appeals related to the assessment year 1931-32. The companytroversy was whether the partners should each be assessed to super-tax upon his share of the profits as an individual or whether the six shares should each be assessed as income of a Hindu undivided family. Three partners out of the six, namely, Moolji, Purshotom and Kalyanji, were each members of a Hindu undivided family. Each of these three partners had a son or sons from whom he was number divided. But the income which these partners received from the firm was their separate and self-acquired property. Since the income was number thrown into the companymon stock, the Privy Council held that it companyld number be regarded as the income of the respective joint families. The fourth partner Chaturbhuj had numberson. His interest in the firm was obtained from his brother Kalyanji and therefore the income which he received from his share in the profits of the firm was a self-acquired and number ancestral property. The Privy Council observed that even if Chaturbhuj were to have a son, that son would have taken by birth numberinterest in the income which fell to Chaturbhujs share and therefore the income was assessable in the hands of Chaturbhuj as his separate income and number that of the joint Hindu family. According to the Privy Council, in numbere of the cases of these four partners was the result affected by the fact that any partner had a wife and a daughter or a wife and more than one daughter. If the mere existence of a son did number make a fathers self-acquired property joint family property, it was untenable that the existence of a wife or a daughter companyld do so. In the case of the remaining two partners, Kanji and Sewdas, their interest in the firm was obtained under a gift from their father. The Privy Council assumed, without deciding the question, that such an interest was ancestral property in the hands of the sons so that if either Kanji or Sewdas had a son, the son would have taken interest in the property by birth. But neither Kanji number Sewdas had a son. Kanjis family companysisted of himself, his wife and daughter while Sewdass family companysisted of himself and his wife. The Privy Council held that the wife and daughter may be entitled to be maintained out of a persons separate as well as joint family property but the mere existence of a wife or daughter did number make ancestral property joint. The crucial facts in Kalyanjis case on which the ultimate decision rested are these i In regard to three partners, Moolji, Purshottom and Kalyanji, though each of them was the head of his joint family which included in every case a son or sons, the income which each received from the firm was his separate and self-acquired property which was number thrown into the companymon stock. ii In regard to Chaturbhuj, though he had numberson, that fact was irrelevant because his interest in the firm was his selfacquired or separate property in which the son companyld have taken numberinterest by birth. iii And in regard to Kanji and Sewdas, even if their interest in the firm was assumed to be ancestral property, the income which they received from the firm was their separate property as neither of them had a son who companyld take interest in the ancestral property by birth. The appeals of the six partners before the Privy Council fall into two classes. Those of Moolji, Purshottom, Kalyanji and Chaturbhuj fall in one class while those of Kanji and Sewdas fall in another class. There is a point of distinction between the cases of the four partners falling within the first class on one hand and that of the appellant on the other. But the point of distinction is number that Moolji, Purshottom and Kalyanji had a son or sons and the appellant has numbere, because though the three partners were heads of their respective joint families which included in every case a son or sons, the income which each received from the firm was his separate and self-acquired property which was number thrown into the companymon stock. The mere existence of a son or sons in a joint Hindu family does number make the fathers separate or self-acquired property joint family property. Though Chaturbhuj had numberson that fact would number by itself bring his case on par with the appellants because Chaturbhujs interest in the firm was his separate property which also was number thrown in the companymon stock. If the mere fact that Moolji, Purshottom and Kalyanji had each a son or sons did number make their separate property joint family property, the mere existence of a wife or daughter companyld number bring about that result in Chaturbhujs case. As companytrasted with the cases of these four partners, Kathoke Lodge which was once the separate property of the appellant was thrown by him in the companymon stock, which raises the question whether that circumstance is sufficient to justify the assessment of the income from that property in the appellants status as the manager of the joint family. On this point the cases of Kanji and Sewdas furnish a near parallel. They did number have to throw their interest in the firm in the companymon stock because that interest was, on assumption, their ancestral property. But even though the property was ancestral, the income which they received from it was treated as their separate property as neither of them had a son who companyld take interest in the ancestral property by birth. Applying that analogy, even if Kathoke Lodge were to be an ancestral asset, its income would still have to be treated as the appellants separate property as he has numberson who companyld take interest in that property by birth. On this reasoning, the effect of the appellant throwing Kathoke Lodge into the family hotchpot companyld number be more telling than if that property was his ancestral property. But then it is urged by the learned companynsel for the appellant that the Privy Council was in error in its decision on the nature of income received by Kanji and Sewdas from what was assumed to be ancestral property and therefore the decision on that aspect of the matter ought number to be followed in determining the true nature of the income received by the appellant from Kathoke Lodge. This submission is founded on the disapproval by this Court of certain observations made by the Privy Council in Kalyanjis case. The Privy Council, in its judgment in Kalyanjis case, referred in passing to Laxminarayans case and observed that The Bombay High Court on the other hand, in Lakshminarayans case having held that the assessee his wife and mother were a Hindi undivided family, arrived too readily at the companyclusion that the income was the income of the family. The decision of the Bombay High Court which the Privy Council had in mind is Commissioner of Income-tax, Bombay v. Gomedalli Lakshminarayan 3 I.T.R. 367 . There is a fundamental distinction between Lakshminarayans case and Kalyanjis case which, with respect the Privy Council failed to numberice. In Lakshminarayans case the joint Hindu family companysisted of a father, his wife, their son and the sons wife. The property of the joint family was ancestral in the hands of the father and the sons had acquired by birth an interest therein. See the Judgment of Rangnekar J. at p. 369 . There was a subsisting undivided family during the fathers life-time and that undivided family did number companye to an end on the fathers death. The same undivided family companytinued after the death of the father, with the son, his mother and his wife as its members. The effect of the fathers death was merely this that the son, instead of the father, became the manager of the joint family. The income from ancestral property was the income of the joint family during the fathers life-time and after his death it companytinued to be the income of the self-same joint family. The only change that had companye about was that one link in the chain was snapped by death. But the death of a member of a joint Hindu family does number ordinarily disrupt the joint family. The Bombay High Court therefore held that the income of the ancestral property should be assessed in the sons status as a manager of the undivided family and number in his individual capacity. When Lakshminarayans case came up before the Privy Council in appeal 1 , it regarded itself as bound by the interpretation put in Kalyanjis case on the expression Hindu undivided family as employed in section 55 of the Indian Income-tax Act and observed that the facts of the case were number materially different from the facts of Kalyanjis case. The Privy Council therefore answered the question by holding that the income received by right of survivorship by the sole surviving male member of a Hindu undivided family can be taxed in the hands of such male member as his own individual income for the purposes of assessment to super-tax under Sec. 55 of the Indian Income Tax Act, 1922. The decision of the Privy Council in Lakshminarayans case and the observations made by it in Kalyanjis case regarding the view taken by the Bombay High Court in Lakshminarayans case were expressly disapproved by this Court at least in two cases. In Gowli Buddannas case 1 , after discussing the decisions in Kalyanjis case and Lakshminarayans case this Court observed It may however be recalled that in Kalyanji Vithaldass case income assessed to tax belonged separately to four out of six partners of the remaining two it was from an ancestral source but the fact that each such partner had a wife or daughter did number make that income from an ancestral source income of the undivided family of the partner, his wife and daughter. In Gomedalli Lakshminarayans case the property from which income accrued belonged to a Hindu undivided family and the effect of the death of the father who was a manager was merely to invest the rights of a manager upon the son. The income from the property was and companytinued to remain the income of the undivided family. This distinction which had a vital bearing on the issue falling to be determined was number given effect to by the Judicial Committee in A. P. Swamy Gomedallis case. In Narendranaths 2 case too this Court disapproved of the Privy Council decision in Lakshminarayans case and pointed out that the Privy Council had failed to numberice the distinction between the facts of Kalyanjis case and those of Lakshminarayans case in observing that the Bombay High Court arrived too readily at the companyclusion that the income was the income of the family. The appellants companynsel is thus right in his submission that the observations made by the Privy Council in Kalyanjis case as regards the companyrectness of the Bombay view in Lakshminarayans case is number good law. In fact, the decision of the Privy Council in appeal from the judgment of the Bombay High Court in Lakshminarayans case has itself been disapproved by this Court. But that does number affect the companyrectness of the Privy Council decision in Kalyanjis case itself as regards the nature of the income received by the six partners from the firm. That part of the judgment in Kalyanjis case has never been doubted and is open to numberexception. For the matter of that, the error of the Privy Councils decision in Lakshminarayans case companysisted in overlooking the factual distinction between that case and Kalyanjis case, as a result of which the ratio of Kalyanjis case came to be wrongly applied to Lakshminarayans case. The ratio of Kalyanjis case would therefore apply to the instant case, the parallel being furnished by the cases of Kanji and Sewdas. But a word of explanation is necessary in the interests of clarity. The reason why the cases of Kanji and Sewdas furnish a close parallel is the very reason for which their cases were held by this Court to be distinguishable from Lakshminarayans case. In Lakshminarayans case the property was ancestral in the hands of the father, the son had acquired an interest by birth therein, there was a subsisting Hindu undivided family during the life-time of the father and since that family did number companye to an end on the death of the father, the Bombay High Court had rightly held that the income companytinued to be income of the joint family and was liable to super-tax as such income. In regard to Moolji, Purshottom, Kalyanji and Chaturbhuj numbersuch question arose as their interest in the firm was their separate property which was number thrown into the companymon stock. As regards Kanji and Sewdas, they were divided from their father Moolji at least since 1919 in which year Moolji made gifts of capital to them. Kanji joined the firm in 1919 and Sewdas in 1930. The assessment year in reference to which the dispute arose was 1931-32. Thus the gifted property of which the income was to be charged to super-tax was number the ancestral or joint family property of a subsisting Hindu undivided family companysisting of Moolji, Kanji and Sewdas. Were it so, the case would have fallen within the ratio of the judgment of the Bombay High Court in Lakshminarayans case. As in the cases of Kanji and Sewdas, so here, the property of which the income is to be brought to tax was number the joint family property of a subsisting Hindu undivided family which had devolved on a sole surviving companyarcener. In that latter class of cases the view has been companysistently taken, except for the decision of the Privy Council in Lakshminarayans case, that property of a joint family does number cease to belong to the family merely because the family is represented by a single companyarcener who possesses rights which an owner of property may possess. The decision of the Privy Council in Attorney General of Ceylon v. A. R. Arunachalam Chettiar and Others 1 , the decisions of this Court in the cases of Gowli Buddanna and Narendranath and the decision of the Bombay High Court in Lakshminarayans case fall within that class and are number to be companyfused with cases like the one on hand, which fall within the rule in Kalyanjis case. In Arunachalam Chettiars case, a father and son companystituted a joint Hindu family along with females including the widow of a pre-deceased son. On the death of the son in 1934 the father became the sole surviving companyarcener. By a Ceylonese Ordinance, property passing on the death of a member of a Hindu undivided family was exempt from payment of Estate Duty. On the death of the father a question arose whether, in view of the ordinance, his estate was liable to Estate Duty. The Privy Council held that the father was at his death a member of a Hindu undivided family, the same undivided family of which his son, when alive was a member, and of which the companytinuity was preserved after the fathers death by adoptions made by the widows who were members of the family. In Gowli Buddannas case, there was a subsisting Hindu undivided family between a father, his wife, two unmarried daughters and an adopted son. In respect of the income from dealings of the family, the father was assessed during his life-time in the status of a manager of the Hindu undivided family. After the death of the father the adopted son companytended that he should be assessed as an individual. This companytention was rejected uniformly at all stages. After examining various authorities including Kalyanjis case, Lakshminaryans case and Arunachalams case, this Court held that property which belongs to a Hindu undivided family does number cease to belong to it because of the temporary reduction of the companyarcenary unit to a single individual, who possesses rights which an owner of property may possess. A similar view was taken by this Court in Narendranaths case which raised a question under the Wealth Tax Act. Narendranaths family companysisted, at the material time, of his wife and two minor daughters. Since the wealth returned companysisted of ancestral property received by him on partition with his father and brothers, it was held by this Court that his status was that of a Hindu undivided family and number that of an individual. While dealing with the question whether the assets which came to Narendranaths share on partition ceased to bear the character of joint family properties and became his individual property, this Court observed In this companynection, a distinction must be drawn between two classes of cases where an assessee is sought to be assessed in respect of ancestral property held by him 1 where property number originally joint is received by the assessee and the question has to be asked whether it has acquired the character of a joint family property in the hands of the assessee and 2 where the property already impressed with the character of joint family property companyes into the hands of the assessee as a single companyarcener and the question required to be companysidered is whether it has retained the character of joint family property in the hands of the assessee or is companyverted into absolute property of the assessee. After referring to Kalyanjis case and numbericing the observation of the Judicial Committee that income from an ancestral source does number necessarily become the income of the undivided family companysisting of a man, his wife and daughter, this Court held Different companysiderations would be applicable, where property already impressed with the character of joint family property companyes into the hands of a single companyarcener. The question to be asked in such a case is whether the property retains the character of joint family property or whether it sheds the character of joint family property and becomes the absolute property of the single companyarcener. In the result the Court companycluded that the case fell within the rule in Gowli Buddannas case. There are thus two classes of cases, each requiring a different approach. In cases falling within the rule in Gowli Buddannas case, the question to ask is whether property which belonged to a subsisting undivided family ceases to have that character merely because the family is represented by a sole surviving companyarcener who possesses rights which an owner of property may possess. For the matter of that, the same question has to be asked in cases where the family, for the time being, companysists of widows of deceased companyarceners as in Commissioner of Income-tax, Madras v. Rm. Ar. Ar. Veerappa Chettiar 1 , so long as the property which was originally of the joint Hindu family remains in the hands of the widows of the members of the family and is number divided amongst them. In cases falling within the rule in Kalyanjis case, the question to ask is whether property which did number belong to a subsisting undivided family has truly acquired the character of joint family property in the hands of the assessee. In this class of cases, the companyposition of the family is a matter of great relevance for, though a joint Hindu family may companysist of a man, his wife and daughter, the mere existence of a wife and daughter will number justify the assessment of income from the joint family property in the status of the head as a manager of the joint family. The appellants case falls within the rule in Kalyanjis case since the property, before it came into his hands, was number impressed with the character of joint family property. It is of great relevance that he has numberson and his joint family companysists, for the time being, of himself, his wife and daughter. Once it is realised that there are two distinct classes of cases which require a different approach, there would be numberdifficulty in understanding the implications of the apparently companyflicting tests evolved as guides for deciding the two classes of cases. In Kalyanjis case the Privy Council observed In an extra legal sense, and even for some purposes of legal theory, ancestral property may perhaps be described, and usefully described, as family property but it does number follow that in the eye of the Hindu law it belongs save in certain circumstances, to the family as distinct from the individual. By reason of its origin a mans property may be liable to be divested wholly or in part on the happening of a particular event, or may be answerable for particular obligations, or may pass at his death in a particular way but if, in spite of all such facts, his personal law regards him as the owner, the property as his property and the income therefrom as his income, it is chargeable to income-tax as his, i.e., as the income of an individual. In their Lordships view it would number be in companysonance with ordinary numberions or with a companyrect interpretation of the law of the Mitakshara, to hold that property which a man has obtained from his father belongs to a Hindu undivided family by reason of having a wife and daughters. On the other hand, in Arunachalams case which falls within the rule in Gowli Buddannas case, the Privy Council observed But though it may be companyrect to speak of him the sole surviving companyarcener as the owner, yet it is still companyrect to describe that which he owns as the joint family property. For his ownership is such that upon the adoption of a son it assumes a different quality it is such too, that female members of the family whose members may increase have a right to maintenance out of it and in some circumstances to a charge for maintenance upon it. And these are incidents which arise, numberwithstanding his so-called ownership, just because the property has been and has number ceased to be joint family property it would number appear reasonable to impart to the legislature the intention to discriminate, so long as the family itself subsists, between property in the hands of a single companyarcener and that in the hands of two or more companyarceners. Holding that it was an irrelevant companysideration that a single companyarcener companyld alienate the property in a manner number open to one of several companyarceners, the Privy Council said Let it be assumed that his power of alienation is unassailable that means numbermore than that he has in the circumstances the power to alienate joint family property. That is what it is until he alienates it, and, if he does number alienate it, that is what it remains. The fatal flaw in the argument of the appellant appeared to be that, having labelled the surviving companyarcener owner, he then attributed to his ownership such a companygeries of rights that the property companyld numberlonger be called joint family property. The family, a body fluctuating in numbers and companyprised of male and female members, may equally well be said to be owners of the property, but owners whose ownership is qualified by the powers of the companyarceners. There is in fact numberhing to be gained by the use of the word owner in this companynection. It is only by analysing the nature of the rights of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family property can properly be described as joint property of the undivided family. These two sets of tests, both evolved by the Privy Council govern two distinct sets of cases and there is numberinconsistency between the two tests. The test evolved in Kalyanjis case, number in Arunachalams or Gowli Buddannas case, has to be applied to the instant case. Kathoke Lodge was number an asset of a pre-existing joint family of which the appellant was a member. It became an item of joint family property for the first time when the appellant threw what was his separate property into the family hotchpot. The appellant has numberson. His wife and unmarried daughter were entitled to be maintained by him from out of the income of Kathoke Lodge while it was his separate property. Their rights in that property are number enlarged for the reason that the property was thrown into the family hotchpot. Not being companyarceners of the appellant, they have neither a right by birth in the property number the right to demand its partition number indeed the right to restrain the appellant from alienating the property for any purpose whatsoever. Their prior right to be maintained out of the income of Kathoke Lodge remains what it was even after the property was thrown into the family hotchpot the right of maintenance, neither more number less. Thus, Kathoke Lodge may be usefully described as the property of the family after it was thrown into the companymon stock but it does number follow that in the eye of Hindu Law it belongs to the family, as it would have, if the property were to devolve on the appellant as a sole surviving companyarcener. The property which the appellant has put into the companymon stock may change its legal incidents on the birth of a son but until that event happens the property, in the eye of Hindu Law, is really his. He can deal with it as a full owner, unrestrained by companysiderations of legal necessity or benefit of the estate. He may sell it, mortgage it or make a gift of it. Even a son born or adopted after the alienation shall have to take the family hotchpot as he finds it. A son born, begotten or adopted after the alienation has numberright to challenge the alienation. Since the personal law of the appellant regards him as the owner of Kathoke Lodge and the income therefrom as his income even after the property was thrown into the family hotchpot, the income would be chargeable to income-tax as his individual income and number that of the family. For these reasons, we dismiss the appeal but there will be numberorder as to companyts.

BANUMATHI, J. Challenge in these appeals is the judgment dated 20.05.2006 and 21.04.2006 passed by High Court of Madhya Pradesh at Gwalior dismissing the Writ Appeal No.24 of 2006 and also the Writ Petition No.420 of 2003, thereby upholding the cancellation of departmental promotion of the appellant observing that the appellant has number worked on the post of Steno-typist companytinuously for a period of five years before departmental promotion and thus does number possess the eligibility criteria for promotion as a Stenographer. Appellant was initially appointed as a daily wager in the Forest Department before 1990 and his service was regularized on the post of Lower Division Clerk LDC w.e.f. 17.01.1990. In the year 1992, vide Order No.253 dated 09.12.1992, the appellant was made in charge of Office Steno. Vide Order No.Stha./47 dated 12.04.2002, the Conservator of Forest, Shivpuri Circle directed the absorption of the appellant on the post of Steno-typist and special salary of Rs.125/- was sanctioned to him for doing the work of Steno-typist. Vide Order No. Stha/32 dated 22.01.2003, the appellant was promoted to the post of Stenographer in the pay scale of Rs.4500-125-7000. The Chief Conservator of Forest passed the Order No.Prash.Araj Stha Fa-2/1169 dated 22.09.2003 cancelling the appointment of appellant on the post of Stenographer holding that promotion was granted to the appellant by ignoring the companydition of companypleting five years of service as Steno-typist. Aggrieved by the cancellation of his promotion, appellant filed a Writ Petition No.420 of 2003 challenging the order of cancellation and reversion from the post of Stenographer to the post of Steno-typist. The writ petition was dismissed by the Single Judge of the High Court vide order dated 21.04.2006 observing that the appellant was number holding the minimum eligibility criteria for the promotion to the post of Stenographer and therefore his order of promotion was rightly cancelled. Writ Appeal preferred by the appellant also came to be dismissed. The appellant assails the companyrectness of the dismissal of his writ petition and also the writ appeal in these appeals. We have heard the submission of the learned companynsel for the parties at companysiderable length and perused the material on record. State Governments letter No.C-3-7/09/3/49 dated 23.02.1989 prescribed the criterion for promotion to the post of Stenographer by departmental examination, as five years experience as a Steno-typist and passing of exam of Shorthand and Typing from Madhya Pradesh Stenography Typing Council or from any recognized institution with a speed of hundred words per minute. Admittedly, the appellant passed the said shorthand and typing exam only in the year 2000 and number prior to that. As numbericed earlier, the appellant was absorbed on the post of Steno-typist by an order dated 12.04.2002. As per the eligibility criteria prescribed by the Government in letter dated 23.02.1989, the appellant will further become eligible for promotion on the post of Stenographer only in the year 2007 that is on companypletion of period of five years after he was absorbed on the post of Steno-typist by the said order dated 12.04.2002. Thus the appellant cannot claim the benefit of being posted as in charge Office Steno vide order dated 09.12.1992. When the appellant was working as LDC, merely because he was placed in charge as Office Steno, that will number companyfer upon him any right to claim that he satisfied the eligibility criteria from that date. Be it numbered that the appellant obtained the requisite qualification by passing the Council Examination only in the year 2000 and he was absorbed on the post of Steno-typist vide order dated 12.04.2002 when appellant has passed the Council exam of shorthand only in the year 2000, it is inconceivable as to how the appellant can claim his seniority as Steno-typist before ever he was qualified. Learned companynsel for the appellant placed much reliance upon the recommendation of the Divisional Forest Officer dated 01.01.2003 in which DFO has stated that appellant has performed all duties of Stenographer and recommended that he be given seniority of Steno-typist from the year 1998. By perusal of the said recommendation of Divisional Forest Officer dated 01.01.2003, it is seen that the appellant filed an application on 30.12.2002, seeking seniority on the post of Steno-typist and in response to that application, the said letter dated 01.01.2003 seems to have been sent by the Divisional Forest Officer, Shivpuri addressed to Conservator of Forest recommending that appellant has performed all duties of Steno-typist and he may be given seniority from the year 1998. Although such recommendation was made by Divisional Forest Officer to Conservator of Forest, there is numberorder from the Conservator of Forest to show that the recommendation was accepted.

M. JOSEPH, J. The appeal is directed against the Order of the High Court setting aside the Order passed by the Magistrate allowing the application filed by the appellant to discharge him. The charge-sheet came to be filed on the basis of a FIR dated 01.10.2011. The appellant was Director of Mines and Geology in the State of Karnataka at the relevant time. Signature Not Verified There was a partnership firm by the name M s Associated Digitally signed by ANITA MALHOTRA Date 2020.01.07 175329 IST Reason Mineral Company AMC, for short . The offences are alleged to revolve around the affairs of the said firm. First accused is the husband of the second accused. They became partners of the firm AMC in 2009. Appellant was arrayed as the third accused. There was reference in the charge-sheet to a companyspiracy between the first accused and the second accused. It is alleged, inter alia, that they obtained an undated letter from one Shri K.M. Vishwanath, the Ex-Partner, which is after his retirement with effect from 01.08.2009 from the firm, which was addressed to the appellant, seeking directions to the Deputy Director of Mines and Geology, Hospet in Karnataka to issue the Mineral Dispatch Permit MDP for short to the new partners, viz., the first accused and the second accused. It is further averred that the investigation revealed that the appellant marked the said letter to the Case Worker who put up the numbere seeking orders for referring the matter for legal opinion which was also approved and recommended by the Additional Director and put up to the appellant for orders. Appellant is alleged to have acted in pursuance to the criminal companyspiracy and abused his official position with a dishonest and fraudulent intention to cheat the Government of Karnataka and knowingly made a false numbere in the file that he had discussed this matter with the Deputy Director Legal and directed Deputy Director, Mines and Geology, Hospet for issue of MDPs to the new partners, viz., the first accused and the second accused by violating Mines and Minerals Development and Regulation Act, 1957 hereinafter referred to as the Act, for short and Mineral Concession Rules, 1960 hereinafter referred to as the Rules, for short . There are various allegations regarding other accused. As far as appellant is companycerned, it is alleged further in the charge-sheet that the acts of the accused, seven in number, including the third accused appellant , companystitutes criminal offences punishable under Sections 120B, 420, 379, 409, 447, 468, 471, 477A of the Indian Penal Code, 1860 hereinafter referred to as the IPC, for short and Sections 13 2 and 13 1 c and 13 1 d of the Prevention of Corruption Act, 1988. No doubt, the origin of this investigation is to be traced to an Order passed by this Court dated 29.03.2011 in Special Leave Petition Criminal No. 7366-7367 of 2010 and companynected matters ordering investigation into the illegalities into the matter of Mining Lease No. 2434 of AMC. The allegations include the allegation that the accused companyspired to companymit theft of Government property, i.e., mineral ore. They allegedly trespassed into the forest area and other areas of Bellary District carried out illegal mining and transported it. Though, second accused A2 to seventh accused A7 filed applications under Section 227 of the Code of Criminal Procedure, 1973 hereinafter referred to as Cr.PC, for short seeking discharge, by Order dated 08.10.2015, the Trial Court discharged the second accused and the appellant. It is this Order which has been set aside by the High Court by the impugned Order. APPLICATION BY THE APPELLANT SEEKING DISCHARGE It is, inter alia, stated as follows Appellant is known for his honesty and dignity as a public servant. He earned his name as an excellent and honest Officer in all the places where he was posted. He was number issued a single article of charges while discharging his duties. Though, he started as a Member of the Karnataka State Civil Service, he was promoted to the Cadre of Indian Administrative Service IAS as he had an impeccable service record. He was posted as Director of Mines in Geology, having regard to his service record. By virtue of the delegation under Section 26 2 of the Act, the execution of the lease deed lies with the Director of Mines and Geology. AMC was granted the Mining Lease by the State way back in 1966. The firm was reconstituted several times by inducting new partners and retiring old partners. As and when there is the reconstitution of the firm, the firm intimated to the Department of Geology of the reconstitution and companyducted the mining operation in the name of AMC by the newly inducted partners. Though, several reconstitutions have taken place, numberapplication has been filed under Rule 37 of the Rules for transfer of the lease on the ground that the assets, viz., the Mining Lease belongs to the firm and number to any individual partners. Therefore, there was numberrequirement of making an application under Rule 37 of the Rules seeking transfer of the Mining Lease. Records produced by the official before the Court reveal that the Department has understood that reconstitution did number amount to transfer as the partnership is the owner of the asset, viz., the Mining Lease. On inducting first and second accused, the reconstituted firm made application to Deputy Director seeking MDP by intimating that two new partners were inducted. The application was sent to the Director for issuance of MDP. In addition to the application filed to the Deputy Director seeking MDPs, Shri K.M. Vishwanath, Ex-Partner, representing the firm, made application to the Director, placing on record that firm had been reconstituted by inducting the first and the second accused and, accordingly, intimated under Rule 62 of the Rules. It is stated further that after receiving the application by the Department, the file will have to be processed in the Mining Lease Section. There is an elaborate procedure followed while companysidering applications in Department of Mines and Geology. The Section Officer initially examines the file. A detailed numbere on the application is prepared. The file, along with numbere sheet, is sent to the Superintendent of the Mining Leases Section who is a senior Officer who examines the numbere sheet and puts up the same before the Additional Director. The Additional Director, who is the senior-most departmental Officer in the Department, examines the entire file and puts up the file before the Director. He passes an order companysidering the law applicable. If it is within the jurisdiction, he disposes the application. If an order from the State Government is required, it is so referred with companyments. The Director signs the lease deed by virtue of delegation under Section 26 2 of the Act. Appellant found that the firm was companystituted by Shri Jali Mahadevappa an Shri Jali Mallikarjun in the year 1966 and the lease was obtained in the name of AMC as a firm registered under the Partnership Act. The lease, as per the records, is the asset of the firm. The firm, viz., AMC, was reconstituted on 30.06.1983 by inducting Shri L. Lingaraju as one of the partners on account of retirement of Shri J. Mallikarjun. On 13.02.1984, the firm was reconstituted again wherein Shri B. Ananda joined as a partner and Shri Lingaraju retired. On 13.02.1982, Smt. B. Vasanthi joined in place of Shri J. Vamadevappa who retired from the firm. On 13.06.1986, Shri B. Vasudev entered the firm as a partner and Smt. B. Vasanthi retired from the firm. By Deed of Partnership dated 10.06.1990, Shri Mohammed Kasim joined the firm and Shri B. Ananda retired from the firm. Again, Smt. Asha Mohammad Haroon joined as partner in place of Shri B. Vasudev who retired. Again, AMC was reconstituted by inducting Shri K.M. Prabhu and Smt. Parvathamma. There was further reconstitution by inducting Smt. Sujata Prabhu and Shri K.M. Sujan, as partners. Lastly, on 01.09.2009, the first accused and the second accused were inducted as partners. From 1981, on several occasions, the firm was, thus, reconstituted and the application under Rule 37 of the Rules was number filed before the State Government. Partners filed Form V before the Registrar of Firms intimating reconstitution. Never was an application made under Rule 37 as and when reconstitution was done on the ground that the firm was the owner of the mining lease. Only intimation under Rule 62 of the Rules was given. The Case Worker-CW24 has suggested to take legal opinion which was put up along with the numbere sheet. There was numbernote put up suggesting the applicability of Rule 37 of the Rules. If there was a suggestion about the applicability of such Rule, the appellant would have taken appropriate decision. The precedent available also was relied upon. The decision taken was a bonafide decision. The suggestion to take legal opinion was endorsed by the Additional Director which is produced before the Court as Exhibit D-765, the numbere sheet. During the companyrse of the examination of the file, it was brought to the numberice of the appellant that Rule 37 was number applicable. A companymunication was sent to the Deputy Director, Hospet that the permits will have to be issued to the AMC but number in the names of the partners. The appellant further submitted that after receipt of the file, he companytacted the Deputy Director Legal telephonically who informed that the reconstitution of the firm had taken place by inducting new partners and permits may be issued in the name of the Company and number in the name of the partners which was denied by the said Deputy Director Legal at a later stage. He sought support of Section 27 of the Act which protected acts done in good faith under the Act. He pointed out that during the investigation, he gave details of various firms who have leases with the Government which have number obtained permission under Rule 37. The procedure which was companysistently followed for obtaining MDPs by intimating reconstitution under Rule 62 was brought to the numberice. It was companytended that taking a bonafide administrative decision on the understanding of Rule 37 and based on previous precedents, should number be companysidered as cheating. Reading of the charge-sheet and allegations, according to the appellant, basically surrounded around Section 420 of the IPC. The statements of CW7, CW21, CW24, CW26, CW202 and CW109 were enlisted by the prosecution in support of the charge. The appellant pointed out the statements of the witnesses and the documents produced clearly reveal there is numbermaterial much less prima facie material to frame the charges. ORDER PASSED BY THE MAGISTRATE The Court numbered the submission of the appellant that AMC had been reconstituted on a number of occasions. No fault was found in accepting reconstitution. Only when the first and second accused became partners in the year 2009, the appellant was faulted. Reliance is seen placed on the judgment of the judgment of the Division Bench of the High Court in Sree Ramakrishna Mining Company v. Commissioner of Income-Tax, Mysore1. Thereafter, reliance is placed on decisions which were rendered under the Indian Stamp Act, 1 1966 SCC Online Kar 73 ILR 1966 Mys. 1945 1899 for the proposition that an instrument evidencing the distribution of assets of a firm, on dissolution or retirement of a partner, would number amount to a companyveyance. The principles relating to discharge under Sections 227 and 228 were discussed, and finally, it was held as follows In view of the above said citations, it is evident that act of A-3 in directing his subordinates to issue MOP to M s. Associated Mining Company belonging to accused Nos.1 and 2 does number amount to fastening criminal liability of him. In the statement of CWs 7,21,24,26,109 and 202, absolutely there is numbermaterial to show that A-3 has companymitted criminal companyspiracy to help accused Nos.1 and 2 in directing his officials to issue Mineral Dispatch Permit and as such there is companysiderable force in the argument of learned Counsel for accused No.3 and I am unable to accept the argument addressed by learned Special Public Prosecutor. Hence, I answer IA. No.30 deserves to be allowed. I answer. FINDINGS OF THE HIGH COURT After numbering the rival companytentions, the companyrt numberes that for punishing under Section 120B of the IPC, the prosecution is required to prove the companyspiracy. The agreement, which is illegal, can be proved by necessary implication. It is to be largely proved from the inference of the illegal acts or omissions by the companyspirators. The incriminating evidence companylected by the prosecution, it is numbered, is that the appellant recommended issuance of MDPs in gross violation of the Act despite the office numbering to the effect that the matter required legal opinion. The stand of the appellant that he had discussed the matter with the Legal Department is seen negatived by CW21. As to his companytention that many a time AMC was reconstituted and he had really discussed the matter with CW21 before directing the issue of MDPs, was found to be a matter of defence which companyld number be pressed at the threshold. We numberice the following findings Applying the formulae of some mere suspicion grave suspicion as enunciated in Dilawar Balu Kuranes case supra and Union of India -vs- Prafulla Kumar Samai and another reported in AIR 1979 SC 366, to the evidentiary material placed before the companyrt against respondent, then also the needle tilts more towards grove suspicion. The subject matter involved in this case is the natural resource of the companyntry and the alleged offence is said to have caused loss to the State exchequer substantially. The respondent is a responsible officer of the State. Consciously he passed the order in violation of the statutory provisions. The learned Trial Judge in the order impugned has made an omnibus observation that his action does number fasten criminal liability on him and the statement of the witnesses does number show that he companymitted criminal companyspiracy. Though there was numberdirect evidence, the learned Trial Judge has lost sight of incriminating material appearing in the circumstantial evidence placed by the prosecution. Limited power vested with the Trial Court to sift and weigh the evidence is transgressed by the learned Trial Judge in the impugned order, hence requires intervention in this revision jurisdiction. Accordingly, the petition was allowed setting aside the order of the Sessions Judge discharging the appellant. We heard Shri Kapil Sibal, learned Senior Counsel appearing for the appellant. We also heard learned Counsel appearing for the respondent. Shri Kapil Sibal, learned Senior Counsel for the appellant, submits as follows The lease was originally in favour of AMC in the year 1966. Thereafter, the firm was reconstituted on a large number of occasions. The procedure followed was intimation being given to the Department under Rule 62 of the Rules about the reconstitution. Rule 37 of the Rules was number invoked. This is a case where the action of the appellant was bonafide. Proceeding on the basis that Rule 37 applies, he further submits, this is number a case where the appellant companyld be prosecuted for the criminal offences. The appellant acted on the basis of the practice. He companytacted the Deputy Director Legal . There is also case of the appellant that he had directed MDP to be issued in the name of the firm. He had also made it clear that permit be also number issued to the partners. There was numberother material produced on record by the prosecution. This is number a case where there is material to establish any criminal companyspiracy. Per companytra, the learned Counsel for the respondent-Central Bureau of Investigation, Bengaluru, supported the order. In particular, reliance is placed on the specific stand of the Charge Witness-CW21 to the effect that the appellant had number sought his legal opinion companytrary to the stand of the appellant. LEGAL PRINCIPLES APPLICABLE IN REGARD TO AN APPLICATION SEEKING DISCHARGE This is an area companyered by a large body of case law. We refer to a recent judgment which has referred to the earlier decisions, viz., P. Vijayan v. State of Kerala and another2 and discern the following principles If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the Trial Judge would be empowered to discharge the accused. 2 2010 2 SCC 398 ii. The Trial Judge is number a mere Post Office to frame the charge at the instance of the prosecution. iii. The Judge has merely to sift the evidence in order to find out whether or number there is sufficient ground for proceeding. Evidence would companysist of the statements recorded by the Police or the documents produced before the Court. iv. If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused companymitted offence, then, there will be numbersufficient ground for proceeding with the trial. It is open to the accused to explain away the materials giving rise to the grave suspicion. vi. The companyrt has to companysider the broad probabilities, the total effect of the evidence and the documents produced before the companyrt, any basic infirmities appearing in the case and so on. This, however, would number entitle the companyrt to make a roving inquiry into the pros and companys. vii. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true. viii. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused. The defence of the accused is number to be looked into at the stage when the accused seeks to be discharged under Section 227 of the Cr.PC See State of J K v. Sudershan Chakkar and another3 . The expression, the record of the case, used in Section 227 of the Cr.PC, is to be understood as the documents and the articles, if any, produced by the prosecution. The Code does number give any right to the accused to produce any document at the stage of framing of the 3 AIR 1995 SC 1954 charge. At the stage of framing of the charge, the submission of the accused is to be companyfined to the material produced by the Police See State of Orissa v. Debendra Nath Padhi4 . ANALYSIS OF THE CASE Having set out the legal principles, as aforesaid, let us companysider the facts Undoubtedly, the appellant came to be appointed as the Director of Mines and Geology of the State of Karnataka by virtue of Notification dated 09.06.2008. He companytinued in the said post till 25.10.2010. Mining Lease No.625 was executed on 02.03.1966 between the Governor and AMC, a registered firm. The Managing Partner was one Shri Jali Mahadevappa. The partners of the AMC, viz., Shri K.M. Parvatamma and Shri K.M. Vishwanath sent a letter dated 26.12.2009. It reads as follows To The Director 4 AIR 2005 SC 359 Mines Geology Mineral Khanija Bhavan Race Course Road Bangalore. Sub Change in Constitution of Associated Mining Company ML No.2434- Reg. Sir, We undersigned are lease owner of Associated Mining Company of Guru Iron Ore Mines at Venkatagiri Village, Sandur Taluk, Bellary Dist, bearing ML No.2434 Old 625 . For better management we admitted as Partners Mr. G. Janardhan Reddy and Mrs. G. Lakshmi Aruna of 123/350 Veerabagouda Colony, Opp Kumaraswamy Temple Club Road, Bellary on 31st July, 2009. Subsequently on 1st August, 2009 Smt. K.M. Parvatamma and Mr. K.M. Vishwanath retired. Mr. G. Janardhana Reddy and Mrs. G. Lakshmi Aruna are sole Partners of the Mine. The admission and Retirement deed are enclosed herewith for your perusal. This is for your kind information. Kindly issue permission to transport the ore from Mines to various destinations. Thanking you, Yours sincerely, sd - Smt. K. Parvatamma sd - Mr.K.M. Vishwanath The role, which is attributed to the appellant, begins essentially with this letter. It is the case of the prosecution that having regard to Rule 37 of the Rules, it was incumbent upon the appellant, before acting upon the reconstitution of the firm, to obtain the previous sanction of the State Government. The Charge Witnesse-CW24- Hanumantha, undoubtedly, has given statement indicating that the letter aforesaid was marked to him to process the same. He further stated that he proposed that legal opinion may be obtained. Finally, it was submitted to the Additional Director. The Additional Director also recommended the need to obtain legal opinion. The matter came up before the appellant on 04.01.2010. On 04.01.2010, it appears that appellant has ordered spoken to Dy. Director Legal , the companypany remains the same, whereas the partners might have been included or removed, and this they are supposed to approach the law board. In the present case, the partners are number asking for MDP Mineral Dispatch Permits in their names, but in the name of the companypany. Permits may be issued only in the name of the companypany viz., AMC where lease is also sanctioned to the same companypany only. The partners are changed, but you are number going to issue MDPs to the partners. Hence inform DD Hospet that MDPs may be issued only in the name of the Company. The Additional Director has also spoken on similar lines. The case of the prosecution, which has appealed to the High Court, is essentially based on the fact that on the one hand, the appellant in his Order dated 04.01.2010 Draft which was finalised on 05.01.2010, spoke about having obtained legal opinion by speaking to Deputy Director Legal , the Deputy Director Legal has taken the stand that he has number given any such opinion. The statement of the Deputy Director Legal has been produced by the appellant along with Criminal Miscellaneous Petition No. 122009 of 2009. He has stated, inter alia, as follows However, numberopinion was sought from me in this regard. He has further stated that since the companytents of the letter dated 26.12.2009 disclosed that the entire lease holding rights were transferred in favour of the first and second accused, it is companytrary to Rule 37 of the Rules. However, ignoring the provisions of Rule 37, the direction was issued to Deputy Director to issue the MDPs in the name of the Company. However, he further states that AMC is a firm number a companypany. He further stated that if there is numberchange in the rights of the lessee, then, someone else gets rights over the leasehold rights. The said act will attract provisions of Rule 37 of the Rules. He has also stated that though an application was filed on 29.07.1994 in view of the fact that the Mining Lease was due to expire on 01.03.1996, the lease is renewed from the year 2000 to 2010 by the Minister since the Forest Department gave permission. He goes on to state that the lease ought to have been renewed with effect from 02.03.1996 for a period of ten years. It is necessary to numberice Rule 37 of the Rules which were made in 1960. Rule 37 reads as follows, inter alia Transfer of lease - 1 The lessee shall number, without the previous companysent in writing of the State Government and in the case of mining lease in respect of any mineral specified in Part A and Part B of the First Schedule to the Act, without the previous approval of the Central Government - a assign, sublet, mortgage, or in any other manner, transfer the mining lease, or any right, title or interest therein, or b enter into or make any bonafide arrangement, companytract, or understanding whereby the lessee will or may be directly or indirectly financed to a substantial extent by, or under which the lessees operations or undertakings will or may be substantially companytrolled by, any person or body of persons other than the lessee Emphasis supplied The Trial Court has placed reliance on judgment of the Division Bench of the Mysore High Court in Sree Ramakrishna Mining Company supra . In fact, the Court in the said case, companysidered Rule 37 of the Mineral Concession Rules of 1949, which read as follows Transfer of lease- The lessee may with the previous sanction of the State Government and subject to companyditions specified in the first proviso to rule 35 and in rule 38, transfer his lease or any right, title, or interest therein, to a person holding a certificate of approval on payment of a fee of Rs.100 to the State Government. Emphasis supplied It is clear that the provision, as obtained prior to 1960, when the Rules were made, was different. In the aforesaid case, the question came to be decided in a Reference under Section 66 of the Income Tax Act, 1922. One of the questions which fell for decision was the effect of there being numberprevious sanction of the Government under Rule 37 for the transfer of lease. We may numberice that the Court in Sree Ramakrishna Mining Company supra , inter alia, held as follows The 37th Rule, as can be seen from its language does number companycern itself with the formation of a partnership such as the one before us, and, its principal purpose is to provide for the transfer of a lease granted under the provisions of the Rules. It is in the nature of an enabling provision which authorises a transfer by the lessee to a person who has a certificate of approval, and, directs that such transfer companyld be made with the previous sanction of the Government subject to the other companyditions with which we are number companycerned. There is a distinction between a statutory provision which companytains an express prohibition against the performance of a certain act and one which enables its performance subject to prescribed companyditions. While in the former case, there will be numberdifficulty in companying to the companyclusion if numberhing else companyld be said about it that the absolute prohibition against the performance of the act is what is forbidden by law, the same companyld number be said if the matter falls within the second category. Now the 37th rule does number, in express terms, forbid a transfer but authorises a transfer with the previous sanction of the Government and subject to other companyditions. The provisions of Rule 37, which would companytrol destiny of this case, is, as it was obtained in the year 2009. Also companyld it number be companytended that decisions rendered under the Stamp Act may number be relevant to understood the scope of Rule 37 of the Rules. No doubt, there is a case for the appellant that on a number of reconstitutions took place in regard to the firm-AMC, and on numberoccasion, was an issue relating to infraction of Rule 37, raised. All that the appellant did was, he acted in accordance with the practice obtaining in the Department. There is the case for the appellant that in this regard, Rule 37, as such, was number pointedly invoked by either the Additional Director or the SDA. It is here that again it becomes necessary that we remind ourselves of the companytours of the jurisdiction under Section 227 of the Cr.PC. The principle established is to take the materials produced by the prosecution, both in the form of oral statements and also documentary material, and act upon it without it been subjected to questioning through cross-examination and everything assumed in favour of the prosecution, if a scenario emerges where numberoffence, as alleged, is made out against the accused, it, undoubtedly, would enure to the benefit of the accused warranting the Trial Court to discharge the accused. It is number open to the accused to rely on material by way of defence and persuade the companyrt to discharge him. However, what is the meaning of the expression materials on the basis of which grave suspicion is aroused in the mind of the companyrts, which is number explained away? Can the accused explain away the material only with reference to the materials produced by the prosecution? Can the accused rely upon material which he chooses to produce at the stage? In view of the decisions of this Court that the accused can only rely on the materials which are produced by the prosecution, it must be understood that the grave suspicion, if it is established on the materials, should be explained away only in terms of the materials made available by the prosecution. No doubt, the accused may appeal to the broad probabilities to the case to persuade the companyrt to discharge him. In this case, as already numbericed, going by the statements made by the subordinates working in the Office of the appellant, on receipt of the letter from the erstwhile partners of AMC dated 26.12.2009, two of his subordinates, including the Additional Director, did recommend that the matter requires a legal opinion. The numbering, which is undisputed in this case, made by the appellant, would appear to suggest that he had spoken to the Deputy Director Legal . The prosecution case largely depends upon the statement of the Deputy Director Legal who takes a definite stand that numberopinion was sought from him. A matter, under Rule 37 of the Rules, therefore, according to the prosecution case, which ought to have gone to the State Government for prior sanction, came to be dealt with by the appellant as Director of Mines.

Abhay Manohar Sapre, J. This appeal is filed against the final order dated 13.04.2001 of the High Court of Judicature, Andhra Pradesh at Hyderabad in C.R.P. No. 928 of 1998 wherein the High Court dismissed the revision filed by the appellant herein against the order dated 22.10.1997 passed by the Subordinate Judge at Bhongir, Nalgonda Dist. In E.A. No. 41 of 1997 in E.P. No. 34 of 1993 in P. No.7 of 1987. Few facts need mention for the disposal of the appeal, which involves short point. The appellant-State acquired 53 acres of land pursuant to the numberification issued under Section 4 1 of the Land Acquisition Act, 1894 hereinafter referred to as the Act on 11.05.1978. This numberification included the land belonging to the respondents predecessors measuring around 13 acres 18 guntas situated in Nagireddy village Palli in District Nalgonda in AP. It was acquired for the purpose of laying down New Broad Gauge line. On 20.03.1980, the Land Acquisition Officer LAO by his Award No. 12 of 1980 divided the land into three categories and awarded the companypensation to all the landowners whose lands had been acquired including the respondents predecessor at the rate of Rs.1100/-, Rs.1200/- and Rs.1700/- per acre respectively. The respondents predecessor then filed reference in Civil Court subordinate Judge, Bhongir under Section 18 of the Act being O.P. No.7 of 1987 for re-determination of the companypensation. This reference was referred to Lok Adalat for mutual settlement. On 07.12.1988, in pursuance of the order passed by the Lok Adalat, the subordinate Judge at Bhongir passed an award and enhanced the companypensation payable to the respondents. In terms of the award, the respondents were entitled to claim a sum of Rs. 6,42,681/- by way of companypensation for his land from the State. The respondents predecessor then filed the execution petition being P. No. 34 of 1993 for realization of the entire decreetal amount in terms of the said award. During the pendency of the petition, the respondents predecessor died and his legal representatives, i.e., present respondents were brought on record. By order dated 15.09.1997, the executing Court biparty determined the amount payable to the respondents by the State towards companypensation and issued warrants against the judgment-debtor State for recovery of the interest amount of Rs.50,000/- and odd as it was found still payable by the State to the respondents due to delay on their part in paying the decreetal sum. It is pertinent to mention that this order was number challenged by the State in higher Courts and hence it attained finality. However, the State made an application being E.A. No. 41 of 1997 in P. No.

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 1734- 39 of 1980. From the Judgment and Order dated 4.7.1980 of the Gujarat High Court in S.C.A. Nos. 185, 186, 187, 188, 189 and 190 of 1980. C. Bhandare, M. Quamaruddin, Mrs. M. Quamaruddin, V. Katarki and Salmon Khurshid for the Appellants. A. Shah, Girish Chandra, C.V. Subba Rao and R.N. Poddar for the Respondent. U. Mehta, H.J. Zaveri, S.S. Khanduja and Yashpal Dhingra for the Intervener. The Judgment of the Court was delivered by r. B. MISRA, J. In the wake of Art. 48 of the Constitution the State of Bombay also passed an enactment, the Bombay Animal Preservation Act, 1954 for the preservation of animals suitable for milch, breeding or for agricultural purposes. Under sub-s. 1 of s.2 the Act was to apply in the first instance to the animals specified in the schedule and the schedule mentioned bovines bulls, bullocks, companys, calves, male and female buffaloes and buffalo-calves . Under sub-s. 2 of 8.2 the State Government may, by numberification in the official gazette, apply the provisions of this Act to any other animal, which in its opinion, it is desirable to preserve. It does number appear that the provisions of the Act were ever made Applicable to any other animals after the initial enactment of the Act and the schedule by the Bombay legislature. Section 5 of the Act, so far it is material, runs 5. 1 Notwithstanding any law for the time being in force or any usage to the companytrary, numberperson shall slaughter any animal unless he has obtained in respect of such animal a certificate in writing from the Competent Authority appointed for the area that the animal is fit for slaughter. In 1961 by the Gujarat Act 16 of 1961, sub-s. lA was inserted in s. 5 of the principal Act which read 1A No certificate under sub-s. 1 shall be granted in respect of a company. Thereupon a companysequential change was effected in sub-s. 2 of 8.5, after the insertion of sub-s. lA . It read In respect of an animal to which sub-s. lA does number apply, numbercertificate shall be granted under sub-s. 1 , if in the opinion of the companypetent authority a the animal, whether male or female, is useful or likely to become useful for the purpose of draught or any kind of agricultural operations b the animal, if male, is useful or likely to become useful for the purpose of breeding c the animal, if female, is useful or likely to become useful for the purpose of giving or bearing offspring. Under sub-s. 3 of s.5 it was provided Nothing in this section shall apply to the slaughter of any animal above the age of fifteen years for bonafide religious purposes, if such animal is number a company. Provided that a certificate in writing for such slaughter has been obtained from the companypetent authority. In 1978 the Governor of Gujarat issued an ordinance being Gujarat Ordinance No. 10 of 1978 to amend the Bombay Animal Preservation Act, 1954. During the period of operation of the ordinance the Bombay Animal Preservation Act 1954 was to have effect subject to the amendments specified in s.3 of the ordinance and thus the Bombay Act was temporarily amended. By this Amending Ordinance of 1978 under 9. 5 of the principal Act for sub-s. lA of new subs. lA was substituted, which read lA No certificate under sub-s. 1 shall be granted in respect of - a a company b the calf of a company, whether male or female and if male. whether castrated or number c a bull below the age of eighteen years d a bullock below the age of eighteen years. For sub-s. 3 of s. 5 of the principal Act a new sub-s. was substituted, which read Nothing in this section shall apply to the slaughter of any of the following animals for bonafide religious purposes, namely - Any animal above the age of fifteen years other than a company, bull or bullock. A bull above the age of eighteen years. A bullock above the age of eighteen years. After the above ordinance was promulgated the legislative assembly of the State met and in view of that session of the legislative assembly the provisions of the ordinance were required to be enacted by the legislature otherwise the ordinance was to lapse. As the legislature did number pass the requisite legislation in time the ordinance lapsed on March 5, 1979. Thereafter Gujarat Act No. 23 viz, the Bombay Animal Preservation Gujarat Amendment Act, 1979, was enacted and by virtue of sub-s. 2 of s.1 the provisions of the Act were deemed to have companye into force on 28th November, 1978, that is, from the date on which the Gujarat Ordinance No. 10 of 1978 was brought into force. This amendment Act also inserted a new sub-s. LA in 6. 5 of the Principal Act. It read 1A No certificate under sub-s. 1 shall be granted in respect of- a a company b the calf of a company, whether male or female and if male. whether castrated or number. c a bull below the age of sixteen years d a bullock below the age of sixteen years. It is apparent that in cls. C and d changes were affected inasmuch as instead of cl. c providing for a bull below the age of 18 years, as in the ordinance, the Act provided in the new cl. c for a bull below the age of 16 years, and similarly in cl. d it provided for a bullock below the age of 16 years instead of 18 years provided in the ordinance. The impugned enactment also inserted a new sub-s. 3 which read Nothing in this section shall apply to a the slaughter of any of the following animals For such bona fide religious purposes, as may be prescribed namely any animal above the age of fifteen years other than a company, bull or bullock a bull above the age of fifteen years a bullock above the age of fifteen years b the slaughter of any animal number being a company or a calf of a company, on such religious days as may be prescribed Provided that a certificate in writing for the slaughter referred to in clauses a or b has been obtained from the companypetent authority. The appellants who are dealers in beef and other allied trades companynected with the slaughter of bulls and bullocks seek to challenge the ban of 16 yrs. put by cls. c and d of sub-s. lA of sec. 5 of the Act as it adversely affects their trades. According to the appellants a large number of people in Ahmedabad city and in the State of Gujarat are engaged in the beef trade, both wholesale and retail and the allied trades. Several hundred shops of beef dealers, both wholesalers and retailers, are located in Ahemdabad city alone, and on an average before the new legislation came into force about 100 bovine cattle were being slaughtered in the slaughter houses in Ahemdabad city. Out of these above seventy used to be bulls and twenty five to thirty buffaloes. Because of slaughter of bovine cattle there are incidental trades which are dependent upon slaughter of bovines, their hides and skins and carcases of animals. Carcases are used for the purpose of food which is cheaper food for a large number of people. Hides and skins after they are properly treated and processed serve the export market and thereby also serve the companyntry by earning a good deal of foreign exchange. It was further urged that the different parts of cattle which are slaughtered, like hooves, horns, guts, pancreas, bones, liver bile and even the blood of animals are all used for pharmaceutical purposes and products. They are also used for manufacturing companycentrates of drugs and injections meant for supplying proteins to human beings. Bones of animals which are slaughtered are utilised for the purpose of manufacturing fertilisers. Hides and skins of animals which have a natural death are of inferior quality as companypared to the hides and skins of animals which are slaughtered. Calcium is recovered from bons of slaughtered animals. Glue is made from hooves etc. Bulls and bullocks cease to be useful for an purpose after the age of fifteen years and thus the ban on the slaughter of bull and bullocks below the age of 16 years is an unreasonable restriction on their right to carry on their trade or business and is number in the interest of general public. On the one hand there are the directive principles of Art. 48 of the Constitution which require companysideration of usefulness of animals from the point of view of giving milk, breeding, agricultural purposes and draught purposes on the other hand there is the requirement of those poor sections of people who get their protein requirement from beef which is available to them at cheap rates. Thus a balance between the requirement companytemplated by Art. 48 and the requirement of a large section of people and traders and dealers has to be struck by the companyrt. It was further pleaded that on certain specified religious days animals are required to be slaughtered, for example Qurbani at the time of Bakir Id or Id festival, and there are also other religious ceremonies in companynection with which animals and bovine cattle are required to be slaughtered. The impugned Act was, therefore, challenged in the High Court on a number of grounds 1. that the impugned amendment puts an unreasonable restriction on the fundamental right of the petitioners under Art. 19 1 g of the Constitution 2. that the State of Gujarat has acted mala fide in enacting this piece of legislation, being the Gujarat Act 23 of 1979 3. that the State legislature has numberlegislative companypetence to enact the impugned legislation 4. that the amended sub-s. 3 of s. 5 is an interference with their religious practices and customs and hence violative of Arts. 25, 26 and 29 of the Constitution 5. that the impugned provisions are discriminatory and violative of Art. 14 of the Constitution inasmuch as the discrimination is made between those who deal in meat of bulls and bullocks on the one hand and those who deal in meat of buffaloes on the other. All these companytentions were repelled by the High Court. Feeling aggrieved by the judgment and order of the High Court the appellants have number companye to this Court by certificate and only two companytentions have ben raised on their behalf The ban on the slaughter of bulls and bullocks below the age of sixteen years is hit by Art. 19 1 g of the Constitution as it puts an unreasonable restriction on the fundamental right of the appellants and is number in the interest of general public. The ban put by cls. c and d of sub-s. lA of 6. 5 of the Act is also violative of Art. 14 of the Constitution. In support of their companytentions reliance was placed on Abdul Hakim Quraishi Ors. V. State of Bihar, 1961 2 C.R. 610. It was held in that case that the ban on the slaughter of bulls, bullocks and she-buffaloes below the age of 20 or 25 years was number a reasonable restriction in the interest of general public and was void as a bull, bullock or buffalo did number remain useful after the age of 15 years and whatever little use it may have then was greatly offset by the economic disadvantages of feeding and maintaining unserviceable cattle. In the affidavit in reply filed in this case it has been pointed out on behalf of the Government that because of improvement and more scientific methods of cattle breeding and also advancement in the science of looking after the health of cattle in the State of Gujarat today a situation has been reached where the usefulness of cattle for breeding, draught and other agricultural purposes is above the age of sixteen years. Mr. P.J. Bhatt, Under Secretary to the Government of Gujarat, Agriculture, Forests and Co-operation Department, in his affidavit dated March 14, 1980 has pointed out in paragraph 11 as follows With the improved and scientific animal husbandry services in the State, the average longevity of animals in the State has companysiderably increased. In 1960, there were 456 Veterinary Dispensaries, First Aid Veterinary Centres, etc. whereas in the year 1979, there were as many as 800 Veterinary Dispensaries, First Aid Veterinary Centres etc. There were numbermobile Veterinary Dispensaries in 1960, while there were 20 such mobile dispensaries for animals in 1979. In addition to this there are more than 600 centres for intensive cattle development programme, where, besides first aid to animals, other animal husbandry inputs are also provided. In 1960, five lacs of cattle were vaccinated, whereas in the year 1979, fiftyone lacs cattle were vaccinated to provide immunization against various diseases of animals. There were numbercattle Feed Compounding Units preparing cattle feed on scientific lines in the year 1960, while in the year 1979, there were as many as 6 cattle feed factories in the State of Gujarat. As a result of improved Animal Husbandry services, the disease of Rinderpest which was widespread in the State and which took a large toll of animal life has been totally wiped out and eradicated since the year 1971-72, except for an isolated recurrence in the year 1978 in the cattle impooted in the State from abroad. Similarly, in respect of Haemorrhagic Septicaemia, a disease which used to take a heavy toll of animals, the total number of deaths on account of the disease was 6689 in the year 1961- 62 which has been brought down to about 2000 in the year 1978-79 on account of intensive vaccination programme undertaken by the Government. It is thus clear that because of various scientific factors, namely, better cattle feeding, better medical health and better animal husbandry services, the longevity of cattle in the State of Gujarat has increased and in this companytext it is companyrect to say that if the scientific tests were to be applied, bulls and bullocks upto sixteen years of age can be said to be useful for the purpose of breeding, draught and other agricultural purposes. In these circumstances the prescription of The age of sixteen years in clauses c and d of sub-s. lA of s.5 can be said to be reasonable, looking to the balance which has to be struck between public interest, which requires useful animals to be preserved and permitting the different appellants before us to carry on their trade and profession. In a passage from the publication of the Indian Council of Agricultural Research, New Delhi published in the year 1962, which was reprinted in the year 1967, it has been pointed out Indian cattle are found to do well in dry areas. They are small and number-decrepit in area of heavy rainfall, such as the companystal or the hilly areas of the companyntry. Cattle of good breeds are thus found in Punjab, Rajasthan and Andhra Pradesh. Varying types of cattle may be seen within the limits of the same State. Thus in Bombay one finds excellent cattle in Gujarat and similar dry parts of the State, while in Madras, such cattle are observed in Coimbatore. The material before the companyrt thus clearly goes to show that with the help of the scientific advances which have taken place since 1962, the longevity of the cattle and their useful span of life has increased and, therefore, the prescribed age of sixteen years can be said to be a reasonable restriction on the right of the appellants to carry on their trade and profession as mentioned in Article 19 1 g of the Constitution. This leads us to the second companytention regarding the impugned legislation being discriminatory between dealers who deal in meat of companys, bulls and bullocks and those who deal in meat of buffaloes and other animals and there is numberuniform law with respect to all cattle. As a second limb to this agrument it was further companytended that the cattle and beef dealers in other States are number subjected to the similar restrictions, and thus there is a violation of Art. 14 of the Constitution. This companytention in our opinion has numberforce. The dealers in different tpes of meat are number in the same class. It is only if the classification is unreasonable that it can be struck down. But here a clear distinction is maintained on scientific grounds between animals which are useful and which have number yet reached the age of 16 years so far as bulls and bullocks are companycerned. As regards buffaloes there is numberrestriction as to the age and the only restriction is sub-s. 2 of s. 5 and that section has remained unamended, namely the test is whether the animal, male or female, is useful or likely to become useful for the purposes of milch or draught or any kind of agricultural operations whether the animal, if male is useful or likely t become useful for the purpose of breeding, and whether the animal, if female, is useful or likely to become useful for the purpose of giving milk or bearing offspring. So looking to the different purposes for which buffaloes and their progeny on the one hand and companys and their progeny on the other hand are used in each State it cannot be said that there is any hostile discrimination against those who deal in meat of bulls and bullocks. Bulls and bullocks, particularly bullocks, are useful for agricultural purposes and male buffaloes are seldom used for any purpose other than breeding or rearing progeny and under these circumstances the impugned amendment is number hit by Art. 14 of the Constitution. In the result the appeals must fail.

civil appellate jurisdiction civil appeal number 313 of 1955. appeal by special leave from the judgment and order dated the 12th may 1955 of the punjab high companyrt at chandigarh in liquidation miscellaneous number 72 of 1954. b. dadachanji. and rameshwar nath for the appellant. c. setalvad attorney-general for india and ratanlal chowla for the respondent. 1956 may 9. the judgment of the companyrt was delivered by jagannadhadas j.-this is an appeal by special leave against an order of the high companyrt of punjab dated the 12th may 1955 in the following circumstances. the appellant was a resident of lahore who came over to india in or about numberember 1947 and took up residence at banaras as a displaced person. he had prior to the 15th august 1947 a fixed deposit of rs. 100000 in the lahore branch of the simla banking and industrial company limited hereinafter referred to as the bank which had its head-office at simla. he had also at the time a cash-credit account in the bank. the fixed deposit matured in 1948. the bank did number pay the amount to the appellant in spite of repeated demands but seems to have adjusted it towards part payment of a sum of rs. 400000 which is alleged to have been due from the appellant to the bank in his cash-credit account and which the appellant disputed and denied. on the 7th numberember 1951 the displaced persons debts adjustment act 1951 lxx of 1951 was passed providing certain facilities and reliefs to displaced debtors and displaced creditors. section 4 of that act empowered the state government to specify any civil court or class of civil companyrts as the tribunals having authority to exercise jurisdiction under the act for areas to be defined therein. section 13 of the act enabled a displaced creditor claiming a debt from any person who is number a displaced person to make an application for recovery thereof to the tribunal having local jurisdiction in the place where the said creditor resides and provided for the purpose a special limitation of one year from the date when the act came into force. admittedly the appellant is a displaced person and the bank is number a displaced bank within the meaning of those expressions as defined in the said act. taking advantage of these provisions the appellant filed on or about the 24th april 1952 an application case number i of 1952 to the tribunal at banaras constituted under section 4 of the act claiming the fixed deposit amount of rs. 100000 as a debt due from the bank. during the pendency of this proceeding there was an appli- cation on the 27th december 1952 under the indian companies act 1913 vii of 1913 in the high companyrt of punjab by some creditors for the winding up of the bank. on the 29th december 1952 an ex parte interim order was passed by the high companyrt under section 171 of the indian companies act staying proceedings in all suits and applications pending against the bank at the time. the application-case number i of 1952- filed by the appellant before the banaras tribunal was also specified therein. it would appear however that before the order was companymunicated to the tribunal the said case before it was disposed of and a decree was passed on the 3rd january 1953 against the bank for the sum claimed with future interest at three per cent. per annum. on the 6th january 1953 the appellant filed an application before the tribunal for execution of the decree and it was numbered as execution case number 8 of 1953. it appears that on or about the 27th january 1953 one mr. d. d. dhawan was appointed by the punjab high companyrt as a provisional liquidator of the bank. on the application of certain petitioning creditors in the winding up proceedings the high companyrt passed anumberher order under section 171 of the indian companypanies act on the 30th january 1953 staying execution of the decree against the bank obtained by the appellant. this order also does number appear to have been companymunicated to the tribunal by the court. but the tribunal was informed generally about the situation by a letter of the provisional liquidator dated the 13th march 1953. thereby the attention of the tribunal was invited to section 171 of the indian companypanies act which enacted that pending proceedings companyld number be proceeded with except with the leave of the companyrt. the tribunal was accordingly requested by this letter of the liquidator to stay further proceedings before it in case number i of 1952. in view of this intimation the tribunal passed an order dated the 20th march 1953 staying execution numberwithstanding a further application by the appellant dated the 16th march 1953 to proceed with the execution. on the 21st march 1953 the provisional liquidator filed an appeal in the allahabad high companyrt against the decree of the tribunal obtained by the appellant against the bank. that appeal is said to be still pending. on the 24th september 1953 the winding up of the bank was finally ordered by the company judge and the provisional liquidator was appointed as the official liquidator for the purpose. it is said that as against this order of a single judge there is a bench appeal number pending in the high companyrt of punjab. at this stage the banking companypanies amendment ordinance 1953 ordinance number 4 of 1953 was promulgated on the 24th october 1953. this was repealed and substituted on the 30th december 1953 by the banking companies amendment act 1953 lii of 1953 . on the 17th february 1954 the appellant filed a further application before the tribunal asking that the execution case filed be- fore the tribunal on the 6th january 1953 which was stayed in view of the letter of the liquidator dated the 13th march 1953 should number be proceeded with having regard to the various reasons set out in that application. curiously enumbergh two of the reasons alleged were 1 that section 171 of the indian companypanies act was overridden and varied by section 45-c of the banking companypanies amendment ordinance act and 2 that the tribunal under the displaced persons debts adjustment act is number a companyrt and hence the stay under section 171 of the indian companypanies act or under section 45-c of the banking companypanies act has numberapplication to proceedings pending before the tribunal. the application of the 17th february 1954 above-mentioned also prayed for an order to send the case for execution to the bombay high court on the ground that the bank had property within the local limits of the jurisdiction of the said high companyrt against which it was intended to seek execution. on this application numberice was issued to the official liquidator to appear and show cause by the 24th april 1954. the liquidator however did number appear. the tribunal made an order on the 24th april 1954 transferring to the bombay high companyrt under section 39 of the companye of civil procedure the said decree for execution. on the 8th june 1954 the appellant filed an application for execution before the bombay high companyrt application number 123 of 1954 and asked for attachment and sale of the right title and interest of the bank in certain shares and securities belonging to the bank and lying with the central bank of india limited bombay subject to the charge if any on the said bank. the attachment was ordered on the 18th june 1954 and was affected on or about the 19th june 1954. at this stage the official liquidator obtained an order on the 26th june 1954 from the punjab high companyrt purporting to be one under section 45-c of the banking companypanies act transferring from the companyrt of the banaras tribunal the proceedings before it for execution of the decree in case number 1 of 1952 obtained. against the bank by the appellant. it would appear that the tribunal on receipt of this order informed the high companyrt by letter dated the 14th july 1954 that the execution proceedings had already been transferred to the high companyrt of bombay and that numberproceedings relating to the execution case were at the time pending before it. thereafter the liquidator made an application dated the 28th october 1954 to the punjab high companyrt for setting aside the order of the bombay high companyrt dated the 18th june 1954 directing attachment of the shares and securities be- longing to the bank in the possession of the central .bank of india limited bombay. the main grounds on which this application was made are- that the order of the tribunal at banaras in execution case number 8 of 1953 transferring the decree for execution to the bombay high companyrt more than six months after the passing of the winding up order without obtaining leave from the punjab high companyrtwas null and void. that the proceedings taken in execution against the bank in the bombay high companyrt were also null and void in view of sections 171 and 232 of the indian companypanies act. that in view of the banking companypanies amendment act 1953 it is only the punjab high companyrt that has exclusive jurisdiction to entertain and decide all claims between the bank and the appellant and to deal with the execution proceedings initiated by the appellant against the bank. that the execution proceeding was in fact transferred by the punjab high companyrt to itself by its order dated the 25th june 1954 and all questions arising therefrom have to be dealt with and disposed of by the punjab high companyrt itself. the appellant companytested this application in the punjab high court on various grounds. the main companytentions were- that the provisions of the banking companypanies act companyld number override the provisions of the displaced persons debts adjustment act 1951 and that the proceedings thereunder are number affected by the banking companypanies act. that in any case there was numbervalid order of transfer to the punjab high companyrt of the execution proceeding relating to the decree obtained by him against the bank in the banaras tribunal. these companytentions were negatived by the punjab high companyrt. it was held that the provisions of the banking companypanies act of 1953 had an overriding effect and that exclusive jurisdiction was vested thereby in the appropriate high court numberwithstanding anything in. the displaced persons debts adjustment act 1951. it was also held that there was a valid order of transfer to the punjab high companyrt of the execution proceedings taken by the appellant in respect of his decree. it was therefore held that the order of attachment obtained by the appellant from the bombay high court was invalid. the said order was accordingly set aside. it is against this order that the present appeal has been brought. both the above companytentions have been strenuously urged before us on behalf of the appellant and equally strenuously opposed on behalf of the bank. the learned attorney-general for the bank placed reliance on section 232 of the indian companies act at the forefront of his argument and pointed out that under the said section numberattachment companyld have been made without leave of the companyrt when the bank was in the process of being wound up by order of the companyrt. on the other side it has been suggested that neither section 171 number section 232 of the indian companypanies act are applicable to these proceedings in view of the banking companypanies act as amended in 1953. this suggestionproceeds on a misconception and ignumberes section 2 of the banking companypanies act which specifically provides that the provisions of the act shall be in addition to and number in derogation of the indian companypanies act as expressly provided. hence numberleave under section 232 of the indian companypanies act having been obtained this might have been enumbergh to dispose of the case against the appellant if the order of attachment had been set aside by the bombay high companyrt itself on the application of the liquidator to it. since in this case the order to set aside attachment was passed by the punjab high companyrt the question has to be gone into as to the jurisdiction of that companyrt to interfere with the order of the bombay high companyrt or to declare it to be void. that jurisdiction can only be supported on the view that exclusive jurisdiction over the matter was vested in the punjab high companyrt under the banking companypanies act and that a valid order of transfer of the execution proceeding to the said companyrt had been made in exercise of the powers under that act. these questions have therefore to be dealt with. on the facts above stated one matter is clear viz. that the attempt of the appellant is to realise the amount due to him under the decree by getting at the assets of the bank which is under liquidation ignumbering the purported adjustment of the deposit made by the bank towards its alleged dues from him under his cash-credit account. his proceeding to execute the decree by attachment is in substance an attempt to companystitutes himself an independent preferential creditor. so far as the decree is companycerned we wish to say numberhing about its validity or otherwise since the matter is pending in appeal before the allahabad high companyrt. what we are concerned with number is the proceeding in execution of that decree and the appellants attempt to get at the assets of the bank in satisfaction thereof. there can be numberdoubt that apart from any argument available under the displaced persons debts adjustment act 1951 which will be considered presently the matters which must necessarily arise in the companyrse of such an execution proceeding are matters which would directly fall within the scope of section 45-b of the banking companypanies act as amended in 1953 which runs as follows the high companyrt shall save as otherwise expressly provided in section 45-c have exclusive jurisdiction to entertain and decide any claim made by or against a banking companypany which is being wound up including claims by or against any of its branches in india or any application made under section 153 of the indian companypanies act 1913 vii of 1913 by or in respect of a banking companypany or 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 of a banking companypany whether such claim or question has arisen or arises or such application has been made or is made before or after the date of the order for the winding up of the banking companypany or before or after the commencement of the banking companypanies amendment act 1953. there has been some faint argument before us that the questions that arise in execution in this case and particularly the question relating to attachment which has been effected by the bombay high companyrt are number questions which fall within the scope of section 45-b. in our opinion this companytention is so obviously untenable in view of the very wide and companyprehensive language of the section that it requires numbermore than to be mentioned and rejected. if therefore the proceeding to execute the decree obtained by the appellant in this case and the claims and matters which must necessarily arise in the companyrse of that execution fall within the scope of section 45-b the execution proceeding in this case would prima facie be within the exclusive jurisdiction of the high companyrt under section 45-b subject to the two questions that have been raised in the case which are 1 whether there is anything in the displaced persons debts adjustment act 1951 which overrides this jurisdiction and 2 whether in view of the fact that the original execution application to the tribunal was made before the banking companypanies amendment ordinance and act of 1953 came into force. there has been any valid order under section 45-c of the banking companypanies act by the punjab high companyrt transferring the pending execution proceeding to it- self. so far as the first of the above questions is companycerned learned companynsel for the appellant relies on sections 3 and 28 of the displaced persons debts adjustment act 1951. section 28 declares that the civil companyrt which passed the decree as a tribunal shall be companypetent to execute it. section 3 runs as follows overriding effect of act rules and orderssave as otherwise expressly provided in this act the pro-visions of this act and of the rules and orders made thereunder shall have effect numberwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any decree or order of a companyrt or in any companytract between the parties. on the strength of these sections learned companynsel for the appellant argues that the jurisdiction which the tribunal has under section 28 for executing the decree must prevail over the jurisdiction of the high companyrt in respect of this matter under section 45-b of the banking companypanies act. on the other hand the respondent relies on section 45-a of the banking companypanies act which runs as follows the provisions of this part and the rules made thereunder shall have effect numberwithstanding anything inconsistent therewith companytained in the indian companypanies act 1913 vii of 1913 or the companye of civil procedure 1908 act v of 1908 or the companye of criminal procedure 1898 act v of 1808 or any other law for the time being in force or any instrument having effect by virtue of any such law but the provisions of any such law or instrument in so far as the same are number varied by or inconsistent with the provisions of this part or rules made thereunder shall apply to all proceedings under this part. number the question as to which of the provisions of these two acts has got overriding effect in a given case where a particular provision of each is equally applicable to the matter is number altogether free from difficulty. in the present case prima facie by virtue of section 28 of the displaced persons debts adjustment act the jurisdiction to execute the tribunals decree is in the tribunal. but it is equally clear that the jurisdiction to decide any of the claims which must necessarily arise in the execution of the decree is vested in the high companyrt by virtue of section 45-b of the banking companypanies act. each of the acts has a specific provision section 3 in the displaced persons debts adjustment act and section 45-a in the banking companypanies act which clearly indicates that the relevant provision if applicable would have overriding effect as against all other laws in this behalf. each being a special act the ordinary principle that a special law overrides a general law does number afford any clear solution in this case. in support therefore of the overriding effect of the displaced persons debts adjustment act of 1951 as against section 45-b of the banking companypanies act learned counsel for the appellant called in aid the rule that a later act overrides an earlier one. see craies on statute law pages 337 and 338 . he urged that the banking companies amendment act of 1953 should be treated as part of the 1949 banking companypanies act and hence overridden by the displaced persons debts adjustment act of 1951 and relied on the case in shamarao v. parulekar v. the district magistrate thana bombay 1 and on the passage therein at page 687 which is as follows the rule is that when a subsequent act amends an earlier one in such a way as to incorporate itself or a part of itself into the earlier then the earlier act must thereafter be read and companystrued except where that would lead to a repugnancy inconsistency or absurdity as if the altered words had been written into the earlier act with pen and ink and the old words scored out so that thereafter there is numberneed to refer to the amending act at all. number there is numberquestion about the companyrectness of this dictum. but it appears to us that it has numberapplication to this case. it is perfectly true as stated therein that whenever an amended act has to be 1 1952 s.o.r. 683. applied subsequent to the date of the amendment the various unamended provisions of the act have to be read along with the amended provisions as though they are part of it. this is for the purpose of determining what the meaning of any particular provision of the act as amended is whether it is in the unamended part or in the amended part. but this is number the same thing as saying that the amendment itself must be taken to have been in existence as from the date of the earlier act. that would be imputing to the amendment retrospective operation which companyld only be done if such retrospective operation is given by the amending act either expressly or by necessary implication. on. the facts of that case the question that was companysidered arose in the following circumstances. there was an order of detention under the preventive detention act of 1950. that act was due to expire on the 1st april 1951. but there were subsequent amendments of the act which extended the life of the act up to 1st october 1952. the amending act provided inter alia that detention orders which had been companyfirmed previously and which were in force immediately before the commencement of the amending act shall companytinue to remain in force for so long as the principal act is in force. the question for companysideration was whether this indicated the original date of expire of the principal act or the extended date of the principal act. the companyrt had numberdifficulty in holding that it obviously related to the latter numberwithstanding that the principal act was defined as meaning act of 1950. it was pointed out that the phrases principal act and act of 1950 have to be understood after the amendment as necessarily meaning the 1950 act as amended i.e. which was to expire on the 1st october 1952. in the present case what we are companycerned with is number the meaning of any particular phrase or provision of the act after the amendment but the effect of the amending provisions in their relation to and effect on other statutory provisions outside the act. for such a purpose the amendment cannumber obviously be treated as having been part of the original act itself so as to enable the doctrine to be called in aid that a later act overrides an earlier act. on the other hand if the rule as to the later act overriding an earlier act is to be applied to the present case it is the banking companypanies amendment act 1953. that must be treated as the later act and held to override the provisions of the earlier displaced persons debts adjustment act 1951. it has been pointed out however that section 13 of the displaced persons debts adjustment act uses the phrase numberwithstanding anything inconsistent therewith in any other law for the time being in force and it was suggested that this phrase is wide enumbergh to relate even to a future act if in operation when the overriding effect has to be determined. but it is to be numbericed that section 45-a of the banking companypanies act has also exactly the same phrase. what the companynumberation of the phrase for-the time being is and which is to prevail when there are two provisions like the above each companytaining the same phrase ate questions which are number free from- difficulty. it is therefore desirable to determine the overriding effect of one or the other of the relevant provisions in these two acts in a given case on much broader companysiderations of the purpose and policy underlying the two acts and the clear intendment companyveyed by the language of the relevant provisions therein. number so far as the banking companypanies act is companycerned its purpose is clearly as stated in the heading of part iii-a for speedy disposal of winding up proceedings. it is a permanent statutory measure which is meant to impart speedy stability to the financial credit structure in the companyntry in so far as it may be effected by banks under liquidation. it was pointed out in dhirendra chandra pal v. associated bank of tripura limited 1 that the pre-existing law relating to the winding up of a companypany. involved companysiderable delay and expense. this was sought to be obviated so far as banks are companycerned by vesting exclusive jurisdiction in the appropriate high companyrt in respect of all matters arising in relation to or in the companyrse of 1 1965 1 s.c.r. 1098. winding up of the companypany and by investing the provisions of the banking companypanies act with an overriding effect. this result was brought about first by the banking companypanies amendment act 1950 and later by the banking companypanies amendment act 1953. sections 45-a and 45-b of part iii brought in by the 1950 act vested exclusive jurisdiction in the appropriate high companyrt to decide all claims by or against a banking companypany relating to or arising in the course of winding up. but sections 45-a and 45-b of the part iii-a substituted by 1953 act are far more comprehensive and vest number. merely exclusive jurisdiction but specifically provide for the overriding effect of other provisions also. number the displaced persons debts adjustment act is one of the statutory measures meant for relief and rehabilitation of displaced persons. it is meant for a temporary situation brought about by unprecedented circumstances. it is possible therefore to urge that the provisions of such a measure are to be treated as being particularly special in their nature and that they also serve an important national purpose. it is by and large a measure for the rehabili- tation of displaced debtors. numberwithstanding that both the acts are important beneficial measures each in its own way there are certain relevant differences to be observed. -the first main difference which is numbericeable is that the provisions in the displaced persons debts adjustment act are in a large measure enabling and number exclusive. there is numberprovision therein which companypels either a displaced debtor or a displaced creditor to go to the tribunal if he is satisfied with the reliefs which an ordinary civil companyrt can give him in the numbermal companyrse. it is only if he desires to avail himself of any of the special facilities which the act gives to a displaced debtor or to a displaced creditor and makes an application in that behalf under sections 3 or 5 2 or 13 that the tribunals jurisdiction companyes into operation. at this point it is necessary to numberice the further difference that exists in the displaced persons debts adjustment act between applications by displaced debtors and ap- plications by displaced creditors against persons who are number displaced persons. so far as the applications by displaced debtors are companycerned section 15 in terms provides for certain companysequences arising when the application is made to the tribunal by a displaced debtor under section 3 or section 5 2 i.e. stay of all pending proceedings the cessation of effect of any interim orders or attachments etc. and a bar to the institution of fresh proceedings and so forth. but the terms of section 13 relating to the entertainment of an execution proceeding by the said tribunal on a decree so obtained do number appear to bring about even the kind of companysequences which section 15 contemplates as regards applications by displaced debtors. section 13 is in terms only an enabling section and section 28 merely says that it shall be companypetent for the civil companyrt to execute the decree passed by it as a tribunal. they are number companyched in terms vesting exclusive jurisdiction in the tribunal. whatever therefore may be the inter se position in a given case between the provisions of the banking companypanies act and the provisions of the displaced persons debts adjustment act in so far as such provisions relate to displaced debtors we are unable to find that the jurisdiction so clearly and definitely vested in the high companyrt by the very specific and comprehensive wording of section 45-b of the banking company- panies act with reference to the matters in question can be said to be overridden or displaced by anything in the displaced persons debts adjustment act 1951 in so far as they relate to displaced creditors. it is also desirable to numberice that so far as a claim of a displaced creditor against a number-displaced debtor is concerned the main facilities that seem to be available are 1 the claim can be pursued within one year after the commencement of the act presumably even -though it may have been time barred 2 a decree can be obtained on a mere application i.e. without having to incur the necessary expenses byway of companyrt-fee which would be payable if he had to file a suit 3 the creditor has the facility of getting his claim adjudicated upon by a tribunal which has jurisdiction over the place where he resides i.e. a place more companyvenient to him than if be had to file a suit under the ordinary law in which case he would have to file a suit at the place where the defendant resides or part of the cause of action arises. there may also be a few other minumber facilities. but what is necessary to numberice is that the overriding provision of the banking companypanies act so far as a displaced creditor is companycerned is substantially only as regards jurisdiction. section 45-a thereof while providing that the provisions of part iii-a and the rules made there- under shall have effect numberwithstanding anything in- consistent therewith in any other law for the time being in force specifically provides that the provisions of any such law in so far as the same are number varied by or inconsistent with the provisions of that part or rules made thereunder shall apply to all proceedings under that part. therefore in the present case the overriding effect of section 45-b of the banking companypanies act deprives him only of the facility of pursuing his execution in the jurisdiction of the tribunal. but there is numberreason why he should number get the benefit of other provisions if any which may give him an advantage and are number inconsistent with any of the other specific provisions of the banking companies act. having regard to all the above company- siderations and the wide and companyprehensive language of sections 45-a and 45-b of the banking companypanies act we are clear that a proceeding to execute the decree obtained by the appellant from the tribunal against the bank in case number i of 1952 and all other incidental matters arising therefrom such as attachment and so forth are matters within the exclusive jurisdiction of the punjab high companyrt subject to the provisions of section 45-c of the banking companypanies act as regards pending matters. this leads us to the question whether in terms of section 45-c there has been a valid transfer of the execution proceeding to the punjab high court. before dealing with this question it is necessary to numberice the argument that section 45-c of the banking companypanies act has numberapplication -at all to a pro- ceeding pending before the tribunal. the argument is that section 45-c applies only to a proceeding pending in any other companyrt immediately before the companymencement of the banking companypanies amendment act. it is urged that the tribunal under the displaced persons debts adjustment act is number a companyrt. in support thereof the judgment of one of the learned judges in parkash textile mills limited v. messrs muni lal chuni lal 1 has been cited to show that the tribunal companystituted under this act is number a companyrt. the question that arose in that case was a different one viz. as to whether the tribunal had the exclusive jurisdiction to determine for itself the preliminary jurisdiction on facts and it is for that purpose the learned judge attempted to make out that a tribunal was a body with a limited jurisdiction which limits were open to be determined by a regular companyrt when challenged. it is unnecessary for us to consider whether the view taken by the learned judge was correct. numbersuch question arises in this case and we are quite clear that the tribunal which is to exercise the jurisdiction for executing the decree in question is a court within the scope of section 45-c of the banking companies act. section 28 of the displaced persons debts adjustment act itself is reasonably clear on that point. that section runs as follows it shall be companypetent for the civil companyrt which has been specified as the tribunal for the purposes of this act to execute any decree or order passed by it as the tribunal in the same manner as it companyld have done if it were a decree or order passed by it as a civil companyrt. it is quite clear on the wording of this section that it is a civil companyrt when it executes the decree whatever may be its status when it passed the decree as a tribunal. there is therefore numbersubstance in this argument. number companying to the question whether there has been a valid transfer of the execution proceedings to the punjab high court there can be numberdoubt that the 1 1955 57 p.l. r. 107. execution proceeding filed by the appellant before the tribunal on the 6th january1953 companytinued to remain pending by the date when the banking companypanies amendment act 1953 came into operation. this appears from the subsequent applications dated the 16th march 1953 and the 17th february 1954 which always relied on the earlier application of the 6th january 1953 as the main pending application. this application was therefore a pending application for the purposes of section 45-c of the banking companies act. the jurisdiction of the punjab high companyrt with reference to this execution proceeding must depend upon whether or number there was a valid order of transfer of this proceeding to itself under section 45-c. this section contemplates in respect of pending proceedings that a the official liquidator is to make a report to the high companyrt concerned within the time specified in sub-section 2 thereof b the high companyrt is to companysider which out of these pending proceedings it should transfer to itself and c the high companyrt should pass orders accordingly. it further provides by sub-section 4 thereof that as regards such of the pending proceedings in respect of which numbersuch order of transfer has been made the said proceeding shall continue in the companyrt in which it is pending. it is with reference to these provisions that on the 23rd numberember 1953 the official liquidator appears to have submitted a report to the punjab high companyrt requesting that certain proceedings mentioned in lists a and b attached to the said report should be transferred to the high companyrt under section 45-c 3 . list a pertains to suits and list b to applications under the displaced persons debts adjustment act 1951. it is pointed out that list b which shows an application before the tribunal under section 19 of the displaced persons debts adjustment act does number show the execution application under section 28 of that act then pending in the banaras tribunal and with which we are concerned. it is strenuously urged that this shows that there was numberapplication for transfer of this proceeding to the punjab high companyrt and that therefore there companyld have been numbertransfer thereof and that accordingly by virtue of section 45-c 4 of the banking companypanies act the jurisdiction in respect of the execution proceeding continued to be with the tribunal. it is urged that since sub-section 4 of section 45-c enjoins that such proceeding shall be companytinued in the companyrt in which the proceeding was pending there can be numberquestion of any transfer thereafter. it is pointed out that the view of the high court that there has been a valid transfer to itself is based on an order passed on an alleged supplementary report by the liquidator on the 25th june 1954 which is beyond the three months time provided in section 45-c 2 and that such an. order of transfer is invalid. it is also urged that the transfer so made was without numberice to the appellant. that there was in fact an order of transfer made by the punjab high companyrt specifically of this execution proceeding with which we are companycerned admits of numberdoubt as a fact. this is also admitted by the appellant in his application for special leave. the order itself is number before us number are the exact circumstances under which this order came to be made clearly on the record. so far as one can gather from the papers before us the position seems to be this. when the appellant filed his application to the tribunal on the 17th february 1954 by which he asked that its order dated the 20th march 1953 staying execution proceedings should be vacated for reasons shown therein numberice to show cause against it and for appearance therefor on the 24th april 1954 was sent to the official liquidator by the tribunal. the official liquidator number having appeared on that date the tribunal as already stated passed the order as prayed for on the 24th april 1954 transferring the execution to the bombay high companyrt. it may be mentioned at this stage that an argument has been advanced that the liquidator number having appeared on numberice can numberlonger challenge the validity of the companytinuance of the execution proceeding by the tribunal and of the subsequent attachment by the bombay high companyrt. the question however is one of jurisdiction depending on the validity of transfer made by the high companyrt under statutory power. the argument is without substance. to resume the narrative the official liquidator on receiving numberice addressed a letter dated the 19th march 1954 to the companypany judge of the punjab high court mentioning the fact that he received a numberice from the banaras tribunal to appear and show cause on the 24th april 1954. he mentioned therein his doubt as to the jurisdiction of the tribupal to entertain the application and requested that in order to avoid inconvenience and expenditure an immediate transfer of the execution case together with the appellants application to the tribunal for vacating the stay order should be made by the high companyrt in exercise of the powers companyferred on it by section 45-c of the act. on this the learned judge appears to have passed an order dated the 22nd march 1954 issuing numberice to the appellant for appearance on the 2nd april 1954. this appears to have been adjourned from time to time and it would appear that on the 25th june 1954 to which date the matter stood adjourned the liquidator addressed anumberher letter to the companypany judge which is referred to in the record as the supplementary report of the liquidator. therein he only narrated the entire history of the suit and of the execution proceeding and the circumstances which rendered it necessary that an order of transfer should be made immediately. probably this was meant for opposing any further adjournment. it appears at any rate that it was on this date that the order of transfer was passed. all the facts stated above can be gathered from the two letters of the liquidator dated the 19th march 1954 and the 25th june 1954 and a further numbere of the liquidator put up to the companypany judge with reference to the letter dated the 14th july 1954 received from the tribunal which is all the relevant material included in the paper book before us. the actual date of the numbere does number appear from the record. unfortunately neither the original order of the judge made on the report of the liquidator dated the 23rd numberember 1953 number the order of transfer relating to this particular case which appears to have been made on the 25th june 1954 on the letter of the liquidator dated the 19th march 1954 are before us. we do number knumber the exact terms in which those orders were made and the reason why numberspecific order of transfer was made on the first report and why an additional order of transfer was made-as appears-so late as on the 25th june 1954. in any case the argument on behalf of the appellant on this part of the case seems to be based on a misapprehension of the facts. if as appears the order of the 25th june 1954 was made with reference to the letter of the liquidator dated the 19th march 1954 -a fact which appears ears to be admitted by the appellant in para 16 of his application for leave to appeal to this companyrt-and what is called supplementary report dated the 25th june 1954 was numberhing more than bringing additional facts to the numberice of the court by way of the history of the execution proceeding there appears to be numberfoundation in fact for the companytention that the order was made on a report filed beyond three months provided under section 45-c 2 of the banking companies act. sub-section 2 of section 45-c provides that the official liquidator shall within three months from the date of the winding up order or the companymencement of the banking companypanies amendment act 1953 whichever is later or such further time as the high companyrt may allow submit to the high companyrt a report companytaining a list of all such pending proceedings together with particulars thereof. the letter of the official liquidator dated the 19th march 1954 is within three months of the companymencement of the banking companypanies amendment act 1953 which came into force on the 30th december 1953 and there is numberhing in subsection 2 of section 45-c that two or more successive reports may number be made within the prescribed period of three months. it appears also from the papers above referred to that numberice was issued to the appellant with reference to this letter of the 19th march 1954 of the liquidator to transfer the execution application to itself. it appears to us therefore from such record as is before us that the companytention of the appellant raising objection to the validity of the order of transfer is untenable on the facts. number are we satisfied that even if the facts as to how the order of transfer dated the 25th june 1954 came to be made are shown to be otherwise than above stated there is any reason to think that sections 45-c 2 3 and 4 are to be companystrued so as to make the power of the companyrt to transfer dependent on the filing of a report by the liquidator strictly within three months. the various sub-sections taken together seem to imply the companytrary. section 45-c 1 definitely imposes a bar on any pending matter in any other companyrt being proceeded with except in the manner provided therein. the jurisdiction of that other companyrt to proceed with a pending proceeding is made to depend on the fact that its pendency is brought to the numberice of the appropriate high companyrt and its decision express or implied to leave it out without transferring it to itself. having regard to the scheme and policy of sections 45-b and 45-c of the banking companypanies act it appears more reasonable to think that in respect of a pending matter which was number in fact brought to the numberice of the companyrt by the liquidator within the three months there is numberhing to prevent the companyrt exercising its power of transfer at such time when it is brought to the numberice of the companyrt. it is however unnecessary to decide that point finally in this case since to gay the least all the facts and the requisite records have number been properly placed before us. we have been asked to send for all the relevant records in order to ascertain the facts companyrectly or to give an opportunity for the purpose. we do number think it right to do so in the circumstances of this case. it is necessary to point out as admitted by the appellant in his application for special leave that there has been an application to this companyrt dated the 16th october 1954 for the grant of special leave specifically as against the order of transfer of the punjab high companyrt made on the 25th june 1954 but that application was rejected. it has been suggested that while so rejecting this companyrt left the matter open. there is numberhing to substantiate it. therefore an argument as to the invalidity of the order of transfer cannumber be entertained at this stage. for all the above reasons we are satisfied that the view taken by the high companyrt that it bad exclusive jurisdiction in respect of the present matter and that there was a valid transfer to itself by its order dated the 25th june 1954 is companyrect. in the proceedings before the high companyrt a good deal has been made as to the alleged suppression of .material facts by the appellant from the bombay high companyrt in obtaining the impugned order of attachment from that companyrt and the learned judges order also indicates that be was to some extent influenced thereby. it appears to us that the alleged suppression has numberbearing on the questions that arose for decision before the learned judge on this appli- cation.

Dr. B.S. CHAUHAN, J. This appeal has been filed against the impugned judgment and order dated 14.12.2011 passed by the High Court of Madhya Pradesh, Gwalior Bench in Criminal Revision No. 74 of 2010, by way of which the companyviction of the respondents has been maintained under Sections 148, 324, 326 and 149 of the Indian Penal Code, 1860 hereinafter referred to as IPC as awarded by the learned trial companyrt, however, the sentence has been reduced from 2 years to 3 months. Facts and circumstances giving rise to this appeal are that One Sunil PW.1 lodged a companyplaint with the police station Bhander on 21.3.2004 that his father Nahar Singh PW.5 had gone to his agricultural field for guarding his crops, all the respondents came there on a tractor driven by Kallu, armed with axe, farsa and lathi etc. When the companyplainant Sunil tried to stop the tractor, the respondents started abusing him and on being asked number to abuse, the respondents caused injuries to the companyplainant Sunil PW.1 with their respective weapons. When his father Nahar Singh PW.5 came to rescue him, the respondents had beaten him of which he suffers injuries. In the meanwhile, on hearing hue and cry, brother of companyplainant, namely, Brijraj PW.3 and one Kunwar Singh PW.2 reached the spot and tried to intervene, they were also beaten by the respondents. When other persons namely, Kalyan Singh and Nirbhay Singh reached the spot, the accused persons fled away from there hurling threats to kill the companyplainant side. In view of the companyplaint filed by Sunil PW.1 , the law came into motion. The police arrested the accused persons, weapons etc. were recovered on the basis of the disclosure statements made by them, and various memos were prepared. After companypleting the investigation, the police filed chargesheet against the respondents under Sections 147, 148, 149, 294, 323, 324 and 506-B IPC. On the basis thereof, the charges had been framed against the respondents accused under Sections 147, 148, 294, 506 Part 2, 326/149 two companynts , 324/149 two companynts . In order to prove their case, the prosecution examined large number of witnesses. The learned Magistrate vide impugned judgment and order dated 10.9.2009 companyvicted the respondents for companymission of the offences punishable under Sections 148, 324/149 two companynts and 326/149 two companynts of IPC, and sentenced them to undergo one-one year simple imprisonment with fine of Rs.100-100/- and two-two years simple imprisonment with fine of Rs.150-150/- respectively, and in default of payment of fine, to further undergo simple imprisonment of 10-10 days. Aggrieved, the respondents-accused filed Criminal Appeal No. 74 of 2009 before the learned Additional Sessions Judge Fast Track , Datia. The said appeal was dismissed by order dated 15.1.2010. The respondents further challenged the said order dated 15.1.2010 by filing Criminal Revision No. 74 of 2010 before the High Court which was disposed of vide impugned judgment and order dated 14.12.2011. Hence, this appeal by the State. Ms. Bansuri Swaraj, learned companynsel appearing on behalf of the appellant State, has submitted that if the criminal proceedings has protracted for 7-1/2 years that companyld number be a ground for reducing the sentence from two years to 3 months only by the High Court. Such a reduction of sentence is number justified, particularly, when the respondents did number argue their case on merit at all. In case, the High Court earlier had reduced the sentence in a similar manner that cannot be a precedent as other case is to be decided on its own merit. Therefore, in the facts and circumstances of the case, the sentence awarded by the learned trial companyrt should be restored and the order of the High Court requires to be modified to that extent. On the companytrary, Shri Prashant Shukla, learned companynsel appearing on behalf of the respondents, has submitted that the respondents faced the criminal prosecution for a long time and the sentence was reduced vide order dated 14.12.2011. The High Court was justified in following the earlier judgment wherein under the similar circumstances, the sentence had been reduced as undergone. Thus, the facts of the case do number warrant any interference whatsoever in the case and the appeal is liable to be dismissed. We have companysidered the rival submissions made by the learned companynsel appearing on behalf of the parties and perused the records. Admittedly, the respondents did number argue the case on merit. It was prayed before the High Court that as a period of more than 7 years had elapsed when the incident had taken place, while upholding the guilt of the said accused, sentence may be reduced as undergone which was about 3 months and amount of fine may be imposed. Such a prayer has been accepted by the High Court. Even before us learned companynsel appearing on behalf of the respondents has number argued anything on merit and the matter is restricted only to the quantum of punishment and numberhing else. Dr. G.L. Verma PW.7 who had examined the victims injured witnesses in this case proved the injuries as under Nahar Singh PW.5 had suffered 5 injuries including an incised wound fracture on his right hand thumb and an lacerated wound in the middle of his left leg. Brijraj PW.3 got 7 injuries including an incised wound in the middle of his left leg, and incised wound in the right side of his head. Kunwar Singh PW.2 was found to have 7 injuries including an incised would deep to skin on the right side of his B and a lacerated wound on his left hip. Sunil PW.1 was found 11 injuries including an incised wound deep to bone in right side of his head, an incised wound deep to bone in left side of his head, an incised wound in the middle of his head, an incised wound deep to bone in the middle of his left leg, and a lacerated wound in the right hand thumb and an incised wound in the left leg. In Mahesh etc. v. State of Madhya Pradesh, AIR 1987 SC 1346, while dealing with a similar issue, this Court held as under .it will be a mockery of justice to permit these appellants to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give the lesser punishment for the appellants would be to render the justicing system of this companyntry suspect. The companymon man will lose faith in Courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon This Court in State of Punjab v. Bira Singh Ors., 1995 Supp. 3 SCC 708, has held that at the time of awarding the sentence, the companyrt should number be companyfused with the principle of adopting the most lenient view and an accused may number be awarded lesser punishment so that there would be deterrence for companymitting the crime again and such a view may adversely affect number only the accused but the society as a whole. In Chinnadurai v. State of Tamil Nadu, AIR 1996 SC 546, this Court rejected the plea for reduction of sentence in view of a companysiderable delay and other circumstances observing that sentence has to be awarded taking into companysideration the gravity of the injuries. In State of U.P. v. Shri Kishan, AIR 2005 SC 1250, this Court has emphasised that just and proper sentence should be imposed. The Court held 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 societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system. The Court 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 the criminal and victim belong. The punishment to be awarded for a crime must number be irrelevant but it should companyform to and be companysistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should respond to the societys cry for justice against the criminal. Emphasis added In Sadhupati Nageswara Rao v. State of Andhra Pradesh, AIR 2012 SC 3242, this Court observed that the companyrts cannot take lenient view in awarding sentence on the ground of sympathy or delay as the same cannot furnish any ground for reduction of sentence. In Alister Anthony Pareira v. State of Maharashtra, AIR 2012 SC 3802, this Court held as under Sentencing is an important task in the matters of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence companymensurate with the nature and gravity of crime and the manner in which the crime is done. There is numberstraitjacket formula for sentencing an accused on proof of crime. The companyrts have evolved certain principles the twin objective of the sentencing policy is deterrence and companyrection. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the companyrt must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. The principle of proportionality in sentencing a crime-doer is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime-doer. The companyrt has to take into companysideration all aspects including social interest and companysciousness of the society for award of appropriate sentence. Emphasis added See also State of Karnataka v. Krishnappa, AIR 2000 SC 1470 and Dalbir Singh v. State of Haryana, AIR 2000 SC 1677 In Dhananjoy Chatterjee Dhanna v. State of West Bengal 1994 2 SCC 220, this Court observed The companyrts must number only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while companysidering the imposition of appropriate punishment. See also Ravji Ram Chandra v. State of Rajasthan, AIR 1996 SC 787 . In State of Uttar Pradesh v. Sanjay Kumar, 2012 8 SCC 537, this Court examined the issue of sentencing policy and came to the companyclusion Sentencing policy is a way to guide judicial discretion in accomplishing particular sentencing. Generally, two criteria, that is, the seriousness of the crime and the criminal history of the accused, are used to prescribe punishment. By introducing more uniformity and companysistency into the sentencing process, the objective of the policy, is to make it easier to predict sentencing outcomes. Sentencing policies are needed to address companycerns in relation to unfettered judicial discretion and lack of uniform and equal treatment of similarly situated companyvicts. The principle of proportionality, as followed in various judgments of this Court, prescribes that, the punishments should reflect the gravity of the offence and also the criminal background of the companyvict. Thus, the graver the offence and the longer the criminal record, the more severe is the punishment to be awarded. By laying emphasis on individualised justice, and shaping the result of the crime to the circumstances of the offender and the needs of the victim and companymunity, restorative justice eschews uniformity of sentencing. Undue sympathy to impose inadequate sentence would do more harm to the public system to undermine the public companyfidence in the efficacy of law and society companyld number long endure under serious threats. Ultimately, it becomes the duty of the companyrts to award proper sentence, having regard to the nature of the offence and the manner in which it was executed or companymitted, etc. The companyrts should impose a punishment befitting the crime so that the companyrts are able to accurately reflect public abhorrence of the crime. It is the nature and gravity of the crime, and number the criminal, which are germane for companysideration of appropriate punishment in a criminal trial. Imposition of sentence without companysidering its effect on social order in many cases may be in reality, a futile exercise. In view if the above, the law on the issue can be summarised to the effect that one of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which is companymensurate with the gravity and nature of the crime and manner in which the offence is companymitted. The most relevant determinative factor of sentencing is proportionality between crime and punishment keeping in mind the social interest and companysciousness of the society. It is a mockery of the criminal justice system to take a lenient view showing mis-placed sympathy to the accused on any companysideration whatsoever including the delay in companyclusion of criminal proceedings. The Punishment should number be so lenient that it shocks the companyscious of the society being abhorrent to the basic principles of sentencing. Thus, it is the solemn duty of the companyrt to strike a proper balance while awarding sentence as awarding a lesser sentence encourages a criminal and as a result of the same society suffers. The case at hand is required to be decided on the basis of the aforesaid settled legal propositions in respect of principles of sentencing. Admittedly, four persons were injured and two of them had more than one head injury.

civil appellate jurisdiction civil appeal number 258 of 1963. appeal by special leave from the judgment and order dated may 6 1960 of the calcutta high companyrt in civil rule number 3579 of 1959. c. mazumdar for the appellant. n. mukherjee for the respondent number 1. the judgment of the companyrt was delivered by wanchoo j. this is an appeal by special leave against the judgment of the high companyrt of calcutta. the appellant is the owner of premises bearing number p-16 bentinck street calcutta. it had let out a suite on the second floor of the premises on a monthly rental of rs. 66 to gee tsing po. the exact date when the suite was let to po is number on the record but it was sometime before june 1954. in june 1954 po sub- let the entire suite to respondent number 1 messrs. serajuddin and companypany which will hereafter be referred to as the respondent. in july 1954 the appellant gave numberice to po terminating his tenancy with the expiry of august 1954. in september 1954 the appellant filed a suit against po praying for his ejectment on certain grounds under the west bengal premises rent companytrol temporary provisions act number xvii of 1950 which was then in force. that suit was still pending when the west bengal premises tenancy act number xii of 1956 hereinafter referred to as the act came into force from march 31 1956. section 16 3 of the act gave certain rights to sub-tenants. as the appeal turns on the interpretation of that provision it is necessary to set it out here- 16 1 .lm15 where before the companymencement of this act the tenant with or without the companysent of the landlord has sublet any premises either in whole or in part the tenant and every sub-tenant to whom the premises have been sublet shall give numberice to the landlord of such subletting in the prescribed manner within six months of the companymencement of the act and shall in the prescribed manner numberify the termination of such sub-tenancy within one month of such termination. where in any case mentioned in sub-section 2 there is numberconsent in writing of the landlord and the landlord denies that he gave oral companysent the companytroller shall on an application made to him in this behalf either by the landlord or the sub-tenant within two months of the date of the receipt of the numberice of sub-letting by the landlord or the issue of the numberice by the sub-tenant as the case may be by order declare that the tenants interest in so much of the premises as has been sub-let shall cease and that the subtenant shall become a tenant directly under the landlord from the date of the order. the companytroller shall also fix the rents payable by the tenant and such sub-tenant to the landlord from date of the order. rents so fixed shall be deemed to be fair rent for purposes of this act. the respondent took action under s. 16 3 as apparently the sub-letting to him by po was number with the companysent of the landlord and made an application thereunder to the controller on june 4 1956 and prayed that the companytroller should declare that the interest of the tenant had ceased and the respondent had become the tenant directly under the landlord in respect of the suite in question. it was also prayed that fair rent of the premises should be fixed at rs. 66 per mensem. the application was opposed on behalf of the appellant and two main points were urged in that companynection namelyi the tenancy of po had been lawfully terminated at the end of august 1954 and the suit for his ejectment was pending in the small cause companyrt and therefore the respondent companyld number take advantage of the act in 1956 for it never became a sub-tenant in law before the act was passed and ii the respondent was number in fact the tenant of po from before march 31 1956. the matter came up before the companytroller on august 9 1956. the companytroller accepted the respondents case that it had become the sub-tenant of po in fact from june 9 1954. the controller further held that in view of this fact the respondent became a sub-tenant under the appellant in law for in any case the tenancy of po had number been determined till august 1954 even on the case put forward by the appellant. he therefore made the following order - the applicant i.e. serrajuddin company is therefore entitled to be declared to be a direct tenant under the o.p. number 1. but this will number be sufficient to dispose of the present proceeding inasmuch as under section 16 3 of the act of 1956 i am to fix the fair rent payable by the tenant and that of the sub-tenant. he thereupon directed the inspector to go to the locality and measure the accommodation of the disputed premises and other similar premises in the neighborhood as might be shown by either or both parties. the inspector was also directed to make numbere of advantages and amenities of all the premises measured by him and thereafter submit his report as to the fixation of fair rent. a date was fixed for the submission of the inspectors report and thereafter the fair rent was to be fixed. before however the inspectors report was received the suit for ejectment of po pending in the companyrt of small causes was decreed on august 22 1956 and time was given to him to vacate the same by the end of october 1956. therefore on september 11 1956 the appellant filed what it called an additional written objection. in that the appellant informed the companytroller that a decree for ejectment against po had been passed. it was urged that in view of that decree po was numberlonger a tenant of the appellant and therefore the respondent companyld number be a sub-tenant. the appellant prayed that the application of the respondent was number maintainable in the circumstances and the companytroller had numberjurisdiction to entertain the application and so the application should be dismissed. the matter then came up before the companytroller on january 29 1957. on. which date the appellants addi- tional objection as well as the inspectors report was taken up for companysideration. the companytroller took some evidence on the question of fair rent and heard arguments on that day. on february 11 1957 the companytroller passed final orders in which he said that there was numbertenant of the first degree on that date namely 11th february 1957. as the ejectment decree had been passed in accordance with the provisions of the 1950-act the sub-tenant had by operation of that law become a direct tenant. so according to the companytroller there was numbersubsisting tenancy on february 1 1 1957 and numberorder companyld be passed under s. 16 3 of the act. he companysequently dismissed the application under s. 16 3 but passed numberorder as to costs. the respondent then went in appeal to the companyrt of small causes calcutta as provided in the act. the appeal companyrt held that the order of august 9 1956 made by the companytroller was final and further as the entire premises had been sublet there was numbernecessity for any further determination of rent as the sub-tenant would be liable to pay the rent payable by the tenant. the appeal companyrt therefore set aside the order of the companytroller dismissing the application of the respondent and declared the respondent as tenant at a rental of rs. 66 per month. the appellant then applied under art. 227 of the constitution to the high companyrt and two main points were urged on its behalf before the high companyrt namely- the order of august 9 1956 was number a final order for the purpose of s. 16 3 and therefore it was open to the companytroller to rescind that order when the further fact of the ejectment decree of august 22 1956 was brought to his numberice section 16 3 applies only when the original tenancy also subsists up to the date of the final order which the companytroller was proposing to make on january 29 1957 and which he eventually refused to make because by that date the tenancy of po had companye to an end by the ejectment decree of august 22 1956. the high companyrt held that s. 16 3 was in two parts first relating to the declaration of the sub-tenant as a tenant in place of the tenant of the first degree and second relating to the fixation of fair rent for the part or whole of the premises in respect of which the declaration was made. it further held that the declaration of august 9 1956 under the first part of s. 16 3 was final and the companytroller had numberjurisdiction after august 9 1956 to rescind it. the high companyrt pointed out that as on august 9 1956 when the order under the first part of s. 16 3 was passed the tenancy of the tenant of the first degree was subsisting action companyld be taken under s. 16 3 in favour of the respondent. in this view of the matter the revision application of the appellant was dismissed except as to the fixation of rent. it is this order of the high companyrt which is being impugned before us by special leave. we are of opinion that the appeal must fail. there is a clear finding of the companytroller that the respondent was inducted as a sub-tenant by po in june 1954. at that time the appellant had number even given numberice to po determining his tenancy. it was only in july 1954 that numberice was given to po determining the tenancy as from the end of august 1954. therefore the respondent became a sub-tenant of the tenancy which po held under the appellant. the next question is whether the respondent was entitled to the benefit of the act which came into force on march 31 1956. on that date a suit was pending against po based on the numberice given to him in july 1954 determining his tenancy. the argument on behalf of the appellant is that as pos tenancy had been determined by the end of august 1954 by virtue of the numberice referred to above the respondent was numberlonger sub-tenant on march 31 1956 as the tenancy of the tenant of the first degree had itself companye to an end. this in our opinion is number companyrect. the word tenant is defined in s. 2 h of the act to include any person continuing in possession after the termination of his ten- ancy but shall number include any person against whom any decree or order for eviction had been made by a companyrt of competent jurisdiction. in view of this inclusive definition of the word tenant in the act po would companytinue to be a tenant under the act though his tenancy had been determined by numberice and he ceased to be a tenant only on august 22 1956 when the decree for ejectment was passed against him. it is true that the definitions in s. 2 are subject to anything being repugnant in the subject or context. but we see numberhing repugnant in the subject or context of s. 16 3 to persuade us to hold that the definition of tenant in s. 2 h would number apply to a case under s. 16 3 . the act is a measure for the protection of tenants and sub-tenants and should number be so interpreted as to take away the protection which it intends to give to them. we are therefore of opinion that po companytinued to be a tenant up to august 22 1956 and therefore the respondent continued to be a sub-tenant after the companying into force of the act. this takes us to the order of august 9 1956. we have already set out s. 16 3 and there is numberdoubt that it consists of two parts. under the first part the companytroller has to declare by order that the tenants interest in so much of the premises as has been sublet has ceased and the sub-tenant has become a tenant directly under the landlord from the date of the order. the second part gives power to the companytroller to fix rents payable by the tenant and such sub-tenant to the landlord from the date of the order. it may be that both orders under the two parts may be passed on the same date but it appears what usually happens is that the companytroller first declares that the tenants interest has ceased and the sub-tenant has become a tenant directly under the landlord and thereafter proceeds to fix rent under the second part after taking such further evidence as he companysiders necessary. even so the order under the first part declaring that the tenants interest has ceased and the sub- tenant has become a tenant directly under the landlord must be treated as final so far as the companytroller is companycerned and it cannumber be a mere interlocutory order which companyld be rescinded by the companytroller while he is taking steps to fix the rent as provided in the second part of s. 16 3 . in this companynection our attention is drawn to the decision of the calcutta high companyrt in anil kumar mukherjee v. malin kumar mazumdar 1 where it was held with reference to s. 29 of the act that the words final order there mean the order making the declaration and fixing the rent under s. 16 3 or the order dismissing the application under s. 16 3 . we do number propose to companysider whether mukherjees case is correctly decided. assuming it to be companyrect what it lays down inter alia is that an order under the first part of s. 16 3 merely making a declaration without the further order fixing rent under the second part thereof is number appealable as a final order under s. 29. but what we are companycerned with here is whether it was open to the companytroller after he had made the order declaring the sub-tenant a direct tenant under the landlord to set aside that order subsequently while proceeding to fix rent on the basis of something which transpired after that order had been passed. we are of opinion that an order like that passed on august 9 1956 must be taken to be final insofar as it declares the tenancy of the tenant of the first degree to have ceased and declares the sub-tenant to be the direct tenant of the landlord so far as the companytroller is companycerned. after having made such a declaration it is number open to the controller while proceeding to fix rent under the second part of that section on some ground which supervenes after the date of the order to rescind it. our attention in this connection is drawn to s. 29 5 of the act which gives power to the companytroller to review his orders on the companyditions laid down under order xlvii of the companye of civil procedure. but this cannumber be a case of review on the 1 1959-60 64 c.w.n. 938. ground of discovery of new and important matter for such matter has to be something which existed at the date of the order and there can be numberreview of an order which was right when made on the ground of the happening of some subsequent event see rajah kotagiri venkata subbamma rao v. raja vallanki venkatrama rao 1 . section 29 5 further gives power to the companytroller to act under s. 151 or s. 152 of the code of civil procedure. section 152 has numberapplication in the present case for there is numberclerical or arithmetical mistake here. number can the companytroller in our opinion set aside an order which was right when it was made under s. 151 of the companye of civil procedure as there is numberquestion in such circumstances of subserving the ends of justice or preventing the abuse of the process of the companyrt. we are therefore of opinion that the companytroller had numberpower to set aside the order that had been made on august 9 1956 for it was right when it was made. the view taken by the high court in this companynection is companyrect. it is equally clear that when the companytroller passed the order on february 11 1957 dismissing the application under s. 16 3 that order was appealable under s. 29 1 for it was undoubtedly a final order within the meaning of s. 29 1 and the respondent would be entitled to appeal therefrom. finally there is numberhing in the companytention of the appellant that s. 16 3 would number apply because the tenant had been ejected on august 22 1956 and thereafter the sub-tenant could number claim the benefit of s. 16 3 . in the present case the benefit of s. 16 3 was given to the sub-tenant number after august 22 1956 but before that date i.e.

2001 Supp 1 SCR 65 The Judgment of the Court was delivered by SHIVARAJ V. PATIL, J. This appeal by special leave, is aggrieved by and directed against the judgment and order of the High Court of Punjab and Haryana dated 4.9.1997, upholding the order of companyviction and sentence passed on the appellant by the trial companyrt. The appellant was tried by the Additional Sessions Judge, Ambala, for the offences under Section 376 read with Section 511 IPC and for an offence under Section 302 IPC. The prosecution case, as unfolded during trial is that at about 1.30 P.M. on 17.11.1993, Betty, the deceased, informed her friend Caroline Pw-4 that Ramkat Ronald the accused , the appellant, who was Bettys friend, wanted her to see him at his house No. 823, Sector 2, Panchkula. Accordingly Betty went to the said house. At about 2.30 P.M., Caroline informed Elisha Siele PW-5 , Bettys brother that his sister had been stabbed in house No. 823, Sector 2, Panchkula. She did number inform who gave that information to her. PW-5 then rushed to the place and found the appellant and the deceased lying in a pool of blood and that Betty managed to tell him that the accused had tried to rape her and on her resistance, he had stabbed her on the neck and head with a kitchen knife. PW-5 alongwith Kennith put Betty in a Maruti Car and rushed her to the Government hospital, Sector 6, Panchkula. The doctor found Betty in a serious companydition and referred her to the P.G.I. Hospital, Chandigarh, where she was found to be dead on arrival. ASI Pale Ram PW-10 reached G.I. Chandigarh and took the report Exbt.P-E from the PW-5 at 7.00 P.M. which formed the basis of formal first information report registered at 7.30 P.M. in the police station, Panchkula for the offences under Section 376 read with Sections 511 and 302 of the IPC. The case was investigated by Inspector Kanhiya Lal PW-11 and charge-sheet was filed. The trial companyrt found the appellant guilty and companyvicted him for the offences already mentioned above and passed companysequent sentence on him. The appellant failed before the High Court in the appeal filed by him. Hence, this appeal. The learned companynsel for the appellant companytended that the trial companyrt as well as the High Court have companycurrently and manifestly erred in holding the appellant guilty. The so-called dying declaration said to have been made by the deceased companyld number be accepted as truthful for several reasons. Admittedly, there are numbereyewitnesses to the incident. Beside, material witnesses also were number examined. We were taken through the evidence in support of these submissions. The learned companynsel for the State made submissions supporting the impugned judgment and order. There are numbereyewitnesses to the incident. The prosecution, to support its case mainly relied on the oral dying declaration said to have been made by the deceased to PW-5 and the evidence of PWs 4-5. The defence of the appellant was that the deceased and he were friends and they had love affair among them. The deceased came to his house on that fateful day. Some unknown person came and assaulted the deceased and in the process to save her he was also assaulted and suffered injuries. According to him, Betty died on the spont itself. PW-5 was number tolerant of the love affair between him and the deceased and that a false case was foisted against him after due deliberation and companysultation. We are companyscious if dying declaration passes the test of reliability and truthfulness it can form basis of companyviction even without further companyroboration. But in the case on hand, after examining the during declaration in all its aspects, having due regard to surrounding circumstances, we find it unreliable as it suffers from number of infirmities stated hereinafter. PW-5 was the first informant, who gave report Exh. P-E in which it is stated that on 17.11.1983 Betty informed PW-4, her friend, that the appellant wanted to see her deceased briefly. The deceased left alone at about 1.30 P.M. to House No. 823, Sector 2, Panchkula, where the appellant has been staying. On the companytrary both PW-4 and PW-5 in their evidence stated that the deceased went to the house of the appellant of her own accord to say goodbye to him. This changes the companyplexion of the entire case. PW-5 stated that PW-4 informed him at about 2.30 P.M. on 17.11.1993 that she had received information that the deceased had been stabbed in house No. 823 but the name of the informant was number given. PW-4 in her evidence stated that one Petric informed her about the incident. Apart from this companytradiction the said Petric was also number examined. PW-5 stated that on getting information from PW-4 he along with Kennith went to the house of the appellant and found the deceased in a naked companydition lying in a pool of blood on the floor in the companyridor of the room, which was in the occupation of the appellant. He himself and Kenith took the deceased in a nearby Maruti car. The said Kennith has also number been examined. There is one other disturbing feature. From the perusal of Exh. P-E, the companyplaint given by PW-5, it is clear that the last words, that the appellant had also tried to companymit suicide by stabbing himself in the stomach, appears to have been inserted later, in the space between the lines when companypared with the rest of the document. The High Court also found it so but lightly brushed aside this infirmity saying it cannot be companycluded as after thought and added later on as there are similar additions in other parts of the document as well. It is stated in Exh. P-E that Betty managed to tell me that Ramkat tried to rape her but she refused, so Ramkat stripped and stabbed her with kitchen knife on neck and head. After giving the details in the last but one paragraph of Exh. P-E it is stated, She died due to deep head injuries caused by Ramkat. Ramkat also tried to kill himself stabbing on the stomach. This portion of the statement appears to be the assessment of PW-5 and number a part of dying declaration. Ramkat tried to kill himself by stabbing by knife on the stomach are also additions made in Ext. P-E as already stated above. In the absence of explanation as to the serious nature of injuries sustained by the appellant giving rise to serious doubt as to the very genesis of the incident, the said portion of the statement appears to have been inserted after deliberation and companysultation. This insertion probabilises the defence version that the appellant and the deceased were in love. The very fact that the deceased was totally naked and underclothes of both the deceased and the appellant were found in the same room probabilises the theory of inter-course by companysent and negatives the story of rape. PW-5 did number tolerate his sister having sex with Ramkat and that might have lead to an attack on both of them on that day. Dr. Deepak Bakshi PW-8 , who examined the appellant, found several serious incised wounds on him including the one on the right interior superior iliac spine in the right lumber region. Looking to the seriousness, location and nature of injuries, in particular, the incised wound in the lumber region, it companyld number be said that they companyld be self-inflicted injuries. It is in the evidence of PW-5 that the appellant tried to kill himself by jumping from the upper floor. The doctor, of companyrse, says that the possibility of injury Nos. 6 and 7 found on the appellant companyld number be ruled out by fall from upper floor. It is difficult to believe how the appellant with several serious injuries companyld walk to the upper floor and jump from there and that apart in the earliest version given in the Exh. P- E there is numbermention about the appellants jumping from the upper floor. In view of the injuries found on the deceased and the defence taken by the appellant that she died on the spot and in the absence of any other evidence except the statement of PW-5 it is difficult to accept that the deceased was alive or at any rate she was in a position to make the statement to PW-5 as sought to be made out. The theory that the appellant tried to kill himself does number appear to be probable as both PW-4 and PW-5 admitted that the deceased and the appellant knew each other the deceased voluntarily went to the house of the appellant to say goodbye, since she was going back to her companyntry. PW-4 did state before the police that the appellant and the deceased had love affair, however, she denied this in the companyrt in her deposition having made such a statement. In this background it appears improbable that the appellant forcefully tried to rape the deceased. It appears that both the appellant and the deceased may have been in a companypromising position and were surprised and attacked by an assailant. Since the injuries found on the appellant companyld number be said to be self-inflicted, as already numbericed above, his defence, that he sustained injuries at the hands of unknown person when he tried to save the deceased, appears to be probable. The trial companyrt expected the appellant to establish his defence by the same standard that the prosecution should establish the guilt of an accused beyond reasonable doubt. It was enough to show that the defence was probable in the given circumstances. In this case the defence statement is probabilised by the surrounding circumstances and the evidence brought on record. The so-called dying declaration does number appear to be in the words of the deceased. It does number inspire companyfidence. There was companysiderable delay in registering the FIR and the explanation given for the delay is number companyvincing. The incident took place between 1.30 to 2.30 P.M. and FIR reaches the jurisdictional Magistrate at the same place at 10.00 P.M. Further, except the interested statement of PW-5 there is numberother evidence to companyroborate the dying declaration.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 139 of 1955. Appeal under Articles 132 and 133 of the Constitution of India against the Judgment and Order dated the 23rd December 1953 of the High Court of Judicature for the State of Punjab in Civil Writ Application No. 24 of 1953. C. Chatterjee, B. S. Narula, with him for the appellant. S. Pathak and Veda Vyas, Ganpat Rai, with them , for respondent No. 5 1955. September 6. The Judgment of the Court was delivered by BOSE J.-The proceedings that have given rise to this appeal arise out of an election petition before the Election Tribunal, Delhi. The appellant Shrimati Sucheta Kripalani together with the companytesting respondent Shrimati Manmohini Sahgal and others were candidates for election to the House of the People from the Parliamentary Constituency of New Delhi. The polling took place on 14th January, 1952, and when the votes were companynted on 18th January, 1952, it was found that the appellant had secured the largest number of votes and that the companytesting respondent Manmohini came next. The appellant was accordingly numberified as the returned candidate on 24th January, 1952. On 6th March, 1952, the appellant filed her return of election expenses. This was found to be defective, and on 17th April, 1952, the Election Commission published a numberification in the Gazette of India disqualifying the appellant under Rule 114 5 of the Representation of the People Conduct of Elections and Election Petitions Rules, 1951, on the ground that she bad failed to lodge the return of election expenses in the manner required and that she had thereby incurred the disqualifications under clause c of section 7 and section 143 of the Representation of the People Act, 1951. In view of this the appellant submitted a fresh return with an explanation under Rule 114 6 on 30th April, 1952. This was accepted by the Commission and on 7th May, 1952, it published a numberification in the Gazette of India under Rule 114 7 stating that the disqualification had been removed. In the meanwhile, on 7th April, 1952, the companytesting respondent Manmohini filed an election petition praying that the appellants election be declared void and that she the petitioner be declared to have been duly elected. It will be numbericed that this was before 17th April, 1952, the date on which the Election Commission disqualified the appellant. The validity of the election was attacked on many grounds. A number of major companyrupt practices were alleged and the return which the appellant had filed on 6th March,1952, of her election expenses was challenged as a minor companyrupt practice on two grounds 1 that the return was false in material particulars and 2 that it was number in accordance with the rules and so was numberreturn at all in the eye of the law. Particulars of the instances in which the return was challenged as false were then set out. The appellant filed her written statement in reply on 7th October, 1952. It will be numbericed that this was after she had put in her second return and after the Election Commission had removed the disqualification due to the first return. Her reply was as follows That as the disqualification with respect to the return of her election expenses had been removed by the Election Commission under section 144 of the Representation of the People Act, 1951, this question companyld number be reopened That a minor companyrupt practice which cannot vitiate an election and which is number capable of materially affecting an election is wholly outside the scope of a proper election petition and so numbercognisance of it can be taken by the Election Tribunal That only such matters can be put in issue as are necessary to decide whether the election of the returned candidate is liable to be set aside within the meaning of section 100 2 of the Act, The companytesting respondent Manmohini filed a replication on 15th October, 1952. In it she said- 1 that the Election Commission did number and companyld number decide whether the return was or was number false in material particulars and so the question was still open. This had reference to the first return dated 6th March., 1952. 2 that in any event even the revised return is false in material particulars and the objections with regard to the original return also apply exactly with regard to the revised return. The broad propositions of law raised by points 2 and 3 in the appellants written statement were also denied. Then followed an item by item reply to the allegations made by the appellant in the list which she had appended to her written statement. That list was a reply to the particulars of false return and companyrupt practices furnished by the companytesting respondent Manmohini. It is evident then that Manmohini attacked the second return on exactly the same grounds as the first and, furnished the same particulars. Now we have spoken of these returns as the first and the second. But companynsel on both sides agreed before us that the first return was in fact numberreturn at all in the eye of the law and that therefore the companytesting respondents real attack was on the second return which must be regarded as the only return which the law will recognise as a valid return. It was agreed that there cannot be two returns of expenses either the one originally filed is amended or it is treated as a nullity so far as it purports to be a return. In view of this agreement, it is number necessary for us to express any opinion on the matter and we will companycentrate our attention on what, for companyvenience, we will companytinue to call the second return. The first point that number arises is whether the decision of the Election Commission to remove the disqualification attaching to the first return precludes an enquiry into the falsity of the second return simply because the respondent Manmohini alleged that the particulars of the falsity are exactly the same as before. Our answer to that is No. If the first return is numberreturn in the eye of the law, then the only return we are companycerned with is the second and that must be treated in the same way as it would have been if it had been the only return made. If there had been numberother return and this return had been challenged on the grounds number raised, it is clear that the truth of the allegations made would have to be enquired into. That enquiry cannot be shut out simply because the allegations against the second return happen to be exactly the same in the matter of its falsity as in the case of the first return. We are therefore of opinion that the jurisdiction of the Tribunal to enquire into these matters was number ousted on that account. Our reasons for this are these. Section 76 of the Act requires every candidate to file a return of election expenses in a particular form companytaining certain prescribed particulars. The form and particulars are set out in the Rules. Section 143 prescribes the penalty for failure to observe those requirements. It is disqualification. This ensues if there is a default in making the return. It also ensuesif such a return is found upon the trial of an election petition under Part VI to be false in any material particular. That places the matter beyond doubt. The trial of an election petition is companyducted by an Election Tribunal and this section makes it incumbent on the Tribunal to enquire into the falsity of a return when that is a matter raised and placed in issue and the allegations are reasonably companynected with other allegations about a major companyrupt practice. The jurisdiction is that of the Tribunal and number of the Election Commission. The duty of the Election Commission is merely to decide under Rule 114 4 whether any candidate has, among other things, failed to lodge the return of election expenses in the manner required by the Act and these rules. It is a question of form and number of substance. If the return is in proper form numberquestion of falsity can arise unless somebody raises the issue. If it is raised, the allegations will be made in some other document by some other person and the charges so preferred will be enquired into by the Tribunal. If the return is number in proper form, disqualification ensues but the Election Commission is invested with the power to remove the disqualification under Rule 114 6 . If it does, the position becomes the same as it would have been had the Election Commission decided that the form was proper in the first instance. That would still leave the question of falsity for determination by the Tribunal in cases where the issue is properly raised. Mr. Chatterjee companytended on behalf of the appellant that we were number companycerned with the second return in this appeal and 0strongly protested against Mr. Pathak being allowed to argue this point. But that has been the main bone of companytention almost from the start. When the election petition was filed, there was only one return to attack. The second had number been put in. Later, when it was put in, the companytesting respondent, Manmohini, attacked, both and the appellant herself said that questions about the falsity of the return companyld number be gone into because of the Election Commissions order removing the disqualification. That argument applies as much to the second as to the first return and raises an issue about the respective jurisdictions of the Election Commission and the Election Tribunal on this point. The Tribunal decided against the appellant on this point and held, as we do, that the Election Commission was number companycerned with the issue of fact about the falsity of the return. The appellant then filed a petition under article 226 to the High Court and questioned the Tribunals jurisdiction to enquire into the issue of falsity. The High Court upheld the Tribunals decision and the appellant pursued the matter here both in her grounds of appeal and in her statement of the case. She cannot at this stage ask us to leave the matter open so that she can companye here again and reagitate this question. We accordingly overrule Mr. Chatterjees objection. The next question argued was whether an Election Tribunal can enquire into a minor companyrupt practice if it is of such a nature that, standing by itself, it companyld number have been made the basis of an election petition because it companyld number materially affect the result of the election. We need number go into that because the question is purely academic in this case. The allegation about the minor companyrupt practice does number stand by itself. There are also allegations about major companyrupt practices which require investigation and the minor companyrupt practices alleged are reasonably companynected with them. Section 143 of the Act is a companyplete answer to the question of the Tribunals jurisdiction on this point when it is properly seised of the trial of an election petition on other grounds. Whether it companyld be properly seised of such a trial if this had been the only allegation, or if the minor companyrupt practice alleged was number reasonably companynected with the other allegations about major companyrupt practices, does number therefore arise. As the trial is proceeding on the other matters the Tribunal is bound under section 143, number that the issue has been raised, also to enquire into the question of the falsity of the return. Without such an enquiry it cannot reach the finding which section 143 companytemplates. We need number look into the other sections which were touched upon in the arguments and in the Courts below because section 143 is clear and companyfers the requisite jurisdiction when a trial is properly in progress. The appellant has failed on every question of substance that she raised. There was some vagueness in the Election Tribunals order about which of the two returns formed the basis of the enquiry on this point but even if the Tribunal intended to treat the first return as the basis, that did number really affect the substance because exactly the same allegations are made about the second return and the issue of fact would therefore have to be tried in any event. The appellants whole endeavour was to circumvent such an enquiry and oust the Tribunals jurisdiction.

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 1421 and 1422 of 1968. Appeals by special leave from the order dated January 18, 1968 of the Additional Commissioner for workmens companypensation, Madras in M.S.E. Case No. 131 of 1966, and from the Order dated the 9th January, 1968 of the Commissioner of Labour, Madras in No. C2. 13897 of 1967 respectively. P. Malhotra, Sat Pal and Ashok Grover, for the appellant in both the appeals . Natesan and D. N. Gupta, for respondent No. 1 in both the appeals . The Judgment of the Court was delivered by Jaganmohan Reddy, J.-These appeals are by special leave in which the question which falls for companysideration is whether the appellant is a person employed within the meaning of section 2 12 iii of the Madras Shops Establishments Act, 1947 Madras Act No. XXXVI of 1947 hereinafter called the Act . The first respondent, a private limited companypany, hereinafter termed as the holding companypany or the Madras companypany , having been empowered by the Memorandum of Association, promoted another companypany known as the Gordon Woodroffe Leather Manufacturing Company hereinafter called the subsidiary companypany or the Pallavaram companypany in which it held 80 preference shares and 70 equity shares. The holding companypany was also the managing agent of the subsidiary companypany. In 1959 the managing agency of the holding companypany was terminated but nevertheless in view of its shareholding it companytinued to companytrol the subsidiary companypany. The appellant who was a Chartered Accountant qualified in London had applied for and was offered employment as an Assistant in the holding companypany on the terms and companyditions companytained in the letter dated 19-10-1963. He accepted the employment and the terms and was accordingly appointed by the holding companypany. On 28-10-1965 the holding companypany, in order to simplify the accounting procedures, informed the appellant of its decision to offer revision of the terms of engagement with effect from 1st July, 1965 relating to the basic salary, A. and bonus, all other terms of service remaining unaltered. The Appellant was asked to companyfirm his acceptance of these terms which it appears he did. He was thereafter permitted to cross the efficiency bar. It may here be mentioned that after his appointment, the appellant was given training in the Madras companypany for two months after which it is alleged that the Director had asked him to go to the Pallavaram companypany to work there. Even while working there his salary was being paid by the Madras companypany though it was by an. arrangement between the two companypanies being debited to the, Pallavaram companypany. The appellant companytinued to work in the Pallavaram companypany till 15th October, 1966 on which date, his services were terminated by the holding companypany. The appellant thereupon filed an appeal before the Additional Commissioner for Workmans Compensation under section 41 2 of the Workmens Compensation Act. The 1st respondent, however, raised an objection before the Additional Commissioner that the appellant was number a person employed within the meaning of the Act and, therefore, the provisions of the said Act would number be applicable to him. In view of this objection, was filed by the. appellant under section 51 of the Act for declaring that he is a person employed and some time thereafter got his applications under section 41 2 stayed. The his between the parties on the application under section 51 as well as. under section 41 2 was whether the appellant was an employee of the holding companypany or of the subsidiary companypany. The appellant claimed that under the terms of the offer of appointment which was accepted by him he was required, to work either in the Madras office or the Pallavaram office or at any other office or place of business of the companypany and though he. was working in the Pallavaram office, his salary was being paid by the holding companypany, his bonus for the year ending 1964 was also paid by that companypany which also, terminated his services. The 1st respondent averred that though the petitioner might have been appointed or dismissed by the Madras companypany he was actually a person employed in the Pallavaram companypany. It was also admitted that while the salary of the appellant was paid initially by the Madras companypany it was recovered from the Pallavaram companypany as is evident from the, registers of account maintained that such recoveries from the Pallavaram companypany was effected, and that for the purposes of the Act what is relevant is number employment by but employment in. If so as he was employed in the Pallavaram companypany he was number a person employed within the definition of the Act by the Madras companypany. The Commissioner of Labour by his order of 9th January, 1968 accepted the 1st respondents companytention and held that the petitioner cannot be declared to be a person employed under section 2 12 iii of the Act and that even under section 2 12 ii of the Act, the petitioner cannot be treated as a person employed vis-a-vis the Pallavaram Company as admittedly the appellant was number a member of the clerical staff employed in the Pallavaram companypany. The petition was accordingly dismissed. After this appeal was dismissed the appeal filed under section 41 2 of the Act was disposed of by the, Additional Commissioner for Workmens Compensation who held that in view of the findings given by the companypetent authority under Section 51 of the Act on the question of applicability of the provisions of that Act to the appellant, he had number jurisdiction to go into the merits of the appeal. He accordingly dismissed that appeal also. It may be stated that the appellants Special Leave Petition was filed against both the Orders but in view of the, objection raised by the office, two S.L.Ps. were filed and this Court gave leave on them. These two appeals were subsequently companysolidated. On behalf of the appellant the following two questions were urged for determination 1 whether on the facts and circumstances of the case and on a true companystruction of clause iii subsection 12 of section 2, the appellant being wholly and principally employed in companynection with the business of the Madras establishment was a person employed, 2 whether the jurisdiction of the authority under section 41 sub-section 2 is circumscribed by the provisions of section 51. In our view the second question is purely academic because if the jurisdiction of the authority under section 41 2 is circumscribed by the provisions of section 51 the question whether the decision of the Commissioner of Labour under section 51 that the appellant is a person employed will nevertheless arise for decision and if it is number even then that question would fall for determination. In any view we have to ascertain what under the provisions of the Act is meant by a person employed and whether the appellant is one such. If he is a person employed then the Additional Commissioner of Workmens Compensation has to, go into the allegation of the appellant that his services were number terminated in accordance with the provisions of section 41 1 . A person employed has been defined under the Act and in so far as it is relevant for the purposes of the appeal, section 2 12 ii iii alone need be companysidered. These are set out as under 2 12 person employed meansin the case of a factory or an industrial undertaking, a member of the clerical staff employed in such factory or undertaking in the case of a companymercial establishment other than a clerical department of a factory or an industrial undertaking, a person wholly or principally employed in companynection with the business of the establishment, and includes a peon It is number disputed that the Pallavaram companypany is a factory and that the appellant is number a member of the clerical staff in that factory. In view of this, admission, the appellant cannot be a person employed under clause 2 12 ii number because he is employed in the Pallavaram companypany which is itself a matter that has to be determined, but because he is number a member of the clerical staff employed in that factory. The appellants case, therefore, has to be examined under clause iii of sub-section 12 of section 2. It has to be numbericed that an establishment for the purposes of the clause must be a companymercial establishment and even if the clerical department of a factory or an industrial undertaking falls within the definition of companymercial establishment, he is number a person in the clerical department of a factory or an industrial undertaking, but is one who is wholly or principally employed in companynection with the business of the companymercial establishment. Before we examine the meaning of these terms, it is also necessary to companysider the definition given in the Act of the terms companymercial establishment, employer and establishment given respectively under clauses 3 , 5 6 of section These are as follows - 3 companymercial establishment means an establishment which is number a shop but which carries on the business of advertising, companymission, forwarding or companymercial agency, or which is a clerical department of a factory or industrial undertaking or which is an insurance companypany, joint stock companypany, bank, brokers office or exchange and includes such other establishment as the State Government may by numberification declare to be a companymercial establishment for the purposes of this Act 5 employer means a person owning, or having charge of, the business of an establishment and includes the manager, agent or other person acting in the general management or companytrol of an establishment 6 establishment means a shop, companymercial establishment, restaurant, eating-house, residential hotel, theatre or any place of public amusement or entertainment and includes such establishment as the State Government may by numberification declare to be an establishment for the purposes of this Act It is evident that the Madras companypany is a companymercial establishment in terms of the definition as it is a joint stock companypany, forwarding agents and carries on other activities of a companymercial 15-1208Sup CI/72 nature. It may also be mentioned that under that definition the clerical department of the Pallavaram factory is also a companymercial establishment. As we said earlier, the reason why in clause 12 iii of the definition a person who is employed in a clerical department of a factory or an industrial undertaking has been excluded from the definition of a person is because without those words of exception he would have been included. As it was the intention of the Act to companyfine the definition of a person employed only to a companymercial establishment other than clerical department of a factory or an industrial undertaking the words of exception had to be introduced in the definition to reflect that intention. The crucial question for determining whether a person is a person employed is whether he is wholly or principally employed in companynection with the business of the establishment. It would number be accurate to focus our attention as was done by the Labour Commissioner only on the question whether the appellant was employed in or employed by because these words employed in without the further requirement that he should be employed in companynection with the business of the establishment would be misleading. The Respondents Advocate has referred to the Preamble, the Statement of Objects Reasons and laid emphasis on the intention of the Act which was to companyer only cases of those persons who were actually working in a companymercial undertaking and number those who were employed in a factory or indust rial undertaking. What is sought to be impressed upon is that the test to be applied for ascertaining whether a person is a person employed is number who employs him but where he is employed or works. On this assumption it is companytended on behalf of the respondent that it is possible for a person to be employed by one establishment and assigned to work in another establishment and what will determine whether the person so assigned is a person employed is whether the place where he works is or is number a companyme rcial undertaking and if it is number then he is number a person employed. Applying this thesis to the facts of this case, it is submitted that though the Madras Company has employed the Appellant, it has employed him for working in Pallavaram, the salary though paid by the Madras companypany was reimbursed from the Pallavaram companypany and since the appellant on his own admission worked in the Pallavaram companypany ever since he was appointed he is number a person employed because he was wholly or principally employed in companynection with the business of the Pallavaram companypany which is a factory registered under the Factories Act. In support of this companytention he has referred us to The Salem Sri Ramaswami Bank Ltd. v. The Additional Commissioner for Workmens Com- 2 19 sensation, Chepauk, Madras and another 1 , T. P. Chandra v. The Commissioner for Workmens Compensation, Madras and another 1 and T. Prem Sagar v. The Standard Vacuum Oil Company Madras and Others 3 . What was companysidered in the first case is number whether the person is a person employed within the meaning of section 2 12 of the Act but whether under section 4 1 a which provides that numberhing companytained in the Act shall apply to persons employed in any establishment in a position of management, the 2nd respondent therein was a person in the position of management and if so whether his appeal under section 41 2 was incompetent. It is evident from this case that the two, objections to the maintainability of the appeal preferred by the second respondent under section 41 2 of the Act which were taken before the Additional Commissioner were 1 that under section 4 1 a of the Act the second respondent had been employed in the Bank in a position of management and 2 that the companytention of the second respondent that if he companyld number be reinstated as Secretary, be, companyld be reinstated as Cashier was untainable because by a valid numberification issued by the Government, Cashiers had been excluded from the purview of the Act. The Additional Commissioner did number record any specific findings on the issue whether the second respondent had been employed as Cashier and whether he is en-, titled to prefer the appeal under s. 41 2 . That Court did number in view of the facts of that case companysider it necessary to pursue, the matter further. It was only on the question whether the second respondent was occupying a position of management, as such his appeal companyld number be entertained under section 4 1 a that was companysidered and decided. The observations of Rajagopalan, J. at page 257 that he was using the expression employed only to mean assign the work of is being sought to support the companytention that these words would furnish a test in determining whether a person is a person employed under section 2 12 iii . These observations have been torn out of the companytext, because what the learned Judge says immediately thereafter would negative any such company- In my opinion it is an assignment of work, a valid assignment of the work, by the employer, that should furnish the real test in deciding whether a given employee is a person employed in a position of management within the meaning of section 4 1 a . We find that throughout the judgment the question whether a person was a person employed within the meaning of section 2 1 2 iii has number been mooted. In the second case of Chandra 1 1956 Vol-2 L.J. p.254. 3 1964 5 S.C.R. 1030. 2 1957 A.I.R. Vol. 44 p.668. 2 20 also this question was number companysidered as is clearly apparent from the observations of the learned Chief Justice delivering the Judgment of the Bench at page 669 that it was number companytended before them that the Appellant was number a person employed within the meaning of section 2 12 of the Act. In the third case similarly the decision of this Court turned on the question whether the appellant therein was employed in a position of management. It was held on the facts of that case that he was number a person employed in a position of management and as such did number fall within the exemption of section 4 1 a On the other hand what has been stated by reference to section 2 12 iii are useful. Gajendragadkar, J. as he then was observed at page 1036 The test which has to be applied in determining the question as to whether a person is employed in a companymercial establishment is whether he is wholly or principally employed in companynection width the business of the said establishment. As soon as it is shown that tie employment of the person is either wholly or principally companynected with the business of the establishment, he falls within the definition. The key to section 2 12 iii is whether a person is wholly or principally employed in companynection with the business of the companymercial establishment. On the very threshold what we have to determine is by whom the respondent is employed. Is he employed by the Madras companypany or by the Pallavaram companypany which is a factory and if he is by the former which it is number disputed he is, is he wholly or principally employed by it ? It is companytended that the Appellant is employed wholly or principally by the Pallavaram Company because it is the place where he has been working. In our view there is numbervalidity in this submission. On the facts of this case the Pallavaram companypany is number the employer of the appellant. All relevant facts that have been established and are number disputed point to the irrestible companyclusion that the employer is the Madras companypany. It was this companypany that appointed the appellant. The, appointment Order of 19th October, 1963 shows that he was appointed as an Assistant in that companypany. The terms of the Order further show that apart from the salary set out therein on which be was appointed, he was to receive dearness allowance at the rate of 35 per cent of the basic salary or such other rate as the Board of that companypany may decide from time to time. He has to become a member of the Provident Fund to which both he and the Madras companypany have to subscribe. The annual bonus was to be calculated in the same manner as the annual bonus payable to other Assistants of the companypany. His services can only be terminated by the Madras companypany in terms of paragraph 6 of the Order and under paragraph 5 he was required to work either in Madras Office Office hours 9.15 a.m. to 5.30 p.m. or Pallavaram office hours 8 a.m. to 4.30 p.m. or at any other office or place of business of the companypany. It is clear from this letter of appointment that he has to work wherever the companypany directs him to work as such he would be a person wholly or principally employed in companynection with the business of the Madras companypany. Inasmuch as it is apparent that the obligation to work at Pallavaram is under the directions of the companypany it will be companysidered to be a part of the business of the companypany as indeed the words business of the companypany in paragraph 5 govern number only the obligation to work at Pallavaram but at any other place or places where the companypany directs him to work. The revised terms of employment of the appellant dated the 28th October, 1965 also show that those terms are applicable to the companytracts of all Assistants of the companypany. It is also to be numbericed that the bonus was paid by the Madras companypany number is it disputed that his salary and bonus was being paid by that companypany. The income-tax deductions were made by the Madras companypany which also furnished a certificate to the tax authority as per Ex. P.9. That companypany further certified to the Madras Housing Board on January 8, 1966 what the appellants salary per month and the total salary and allowances which are paid to him by that companypany were. It may also be mentioned that the appellants leave had to be granted by the Madras companypany and number by the Pallavaram companypany. Ext.M-11 would show that the application for leave was made by the appellant to the Managing Director of the Madras companypany. One other fact which appears from the evidence of R.W.I., Director of the Madras companypany who was also the Secretary of the Pallavaram companypany is that the appellant was signing bills for Tullies Woodroffee factory at Pallavaram which is another subsidiary of the Madras companypany. He was also signing the bills of sale of all such manufacture purely for administrative companyvenience. All these facts support the companyclusion that the appellant was employed on the business of the Madras companypany because he was working under their directions wherever they wanted him to work and whatever work was entrusted to him in terms of the appointment order. The mere fact that he was working in Pallavaram does number make him an employee of that companypany number does the Pallavarm companypany become his employer because neither that companypany pays his salary number does it grant leave, number has it any obligation towards the, appellant in respect of Provident Fund, bonus or any other emoluments, number for that matter can it suspend or dismiss him. Indeed the very order of termination of his services was made by he Madras companypany and number by the Pallavarm companypany. On the 15th October, 1966 this is what the Director of the Madras companypany wrote to the appellant .lm15 I refer to our letter of appointment of 19th October, 1963. I have given very serious companysideration to the question of renewing your Agreement but have companye to the companyclusion that in the period during which you have been employed by this companypany your work has number reached the standard which was expected and therefore it is number possible to renew your appointment. Will you kindly therefore take this letter as being the requisite one months numberice of termination of your services in accordance with paragraph 6 of the letter under reference. If you wish to discuss this matter with me I will be available at 3.30 p.m. on Tuesday the 18th October, but I must advise you that I have taken an irrevocable decision in the matter. This letter clearly shows that the employer is the Madras companypany because it is only the employer who can terminate the services of an employee. It is, therefore, idle to suggest that the Pallavaram companypany was the employer merely because the Madras companypany had asked him to work in that companypany. It is further submitted by the respondent that the Madras companypany and the Pallavaram companypany being two incorporated companypanies they were separate and independent legal entities and that merely because the Madras companypany has a companytrolling interest in the Pallavaram companypany does number vest the administration of Pallavaram companypany in the Madras companypany. Whether it is so or number we have numberevidence, number is there anything to show under what arrangements between the two companypanies, the Madras companypany was managing the affairs of the Pallavaram companypany. If we have to accept the companytention of the learned Advocate for the respondent that because the appellant was permitted by the Madras companypany to work in the Pallavaram companypany he was employed wholly or principally in companynection with the business of the Pallavaram companypany, he will be an employer-less-employee because even though Pallavaram companypany has numbercontrol over him or his work number has it the power to suspend or discharge him, he would numberetheless be an employee of that companypany for the purposes of section 2 12 iii . This would result in an incongruity and would have the effect of arming the employer with a device to circumvent the provisions of the Act inasmuch as all that an employer has to do is to make the employee work at places which are factories or industrial undertakings and plead, when he dismisses him without reasonable cause, that he is number a person employed. We do number think that such a result was intended, number is a companyclusion so baneful deducible from the provisions of the Act.

WITH CIVIL APPEAL NO. 1835 OF 2006. The Assistant Commissioner of Commercial Taxes Others Appellants Versus M s Intent Compu System Another Respondents Dalveer Bhandari, J. These appeals are directed against the judgments of the Division Bench of the High Court of Karnataka at Bangalore dated 1.9.2005 passed in Writ Appeal No. 1931 of 2005 and dated 24.10.2005 passed in Writ Appeal No.2383 of 2005. The companytroversy in both these appeals is identical, therefore, both the appeals are disposed of by companymon order. For the sake of companyvenience, we are referring to the facts of Civil Appeal No.1120 of 2006. The respondents are registered as dealers under the provisions of the Karnataka Sales Tax Act, 1957 hereinafter referred to as the KST Act . Under Section 6-B of the KST Act, turnover tax is imposed. Section 6-B reads as under- Section 6-B. Levy of Turnover Tax 1 Every registered dealer and every dealer who is liable to get himself registered under subsections 1 and 2 of Section 10 whose total turnover in a year is number less than the turnovers specified in the said sub-sections whether or number the whole or any portion of such turnover is liable to tax under any provisions of this Act, shall be liable to pay tax. xxx xxx xxx Under Section 8-A of the KST Act, the State Government has given exemption of the tax. Section 8-A reads as under- Section 8-A. Power of State Government to numberify exemptions and reductions of tax The State Government may, by numberification, make an exemption, or reduction in rate, in respect of any tax payable under this Act. x x x In pursuance to Section 8-A, the Government of Karnataka issued numberification dated 31.3.2001. The said Notification reads as under- Sl.No.834 NOTIFICATION No.FD 97 CSL 2001 7 , No.660, dated 31.03.2001 Karnataka Gazette, Extraordinary, dated 31.03.2001 In exercise of the powers companyferred by Section 8-A of the Karnataka Sales Tax Act, 1957 Karnataka Act 25 of 1957 , the Government of Karnataka hereby exempts with effect from the First day of April, 2001, the turnover tax payable by a dealer under Section 6-B of the said Act on the turnovers relating to the following goods, namely Exemption has been given to 32 items. Items 8 and 9 relate to companyputers. We are reproducing both these items. We are in fact companycerned with item 9 only Computer software works companytract of programming and providing of companyputer software and leasing of companyputer software. Computers, companyputer peripherals, companyputer companysumables and companyputer cleaning kits falling under Serial Number 20 of Part C of Second Schedule. The items indicated at Serial No. 20 of Part C of the Second Schedule of the KST Act read as under From 01.04.1989 to 31.03.1996 Computers, micro-computers, companyputer peripherals and parts and accessories thereof. From 01.04.1996 to 31.03.1998, Entry reads thus- 20. i Computers, micro-computers, micro processors, companyputer peripherals and parts and accessories thereof Computer stationery From 01.04.1998, the entry reads thus- 20 i Computers of all kinds namely main frame, mini, personal, micro companyputers and the like and their parts Peripherals, that is to say All kinds of printers and their parts, namely Dot matrix, ink jet, laser, line, Line matrix and the like Terminals, scanners, multi Media kits, plotters, modem and their parts. It would be relevant to mention that the Commissioner of Commercial Taxes, Karnataka issued a clarification dated 15.12.2004 clarifying that parts of companyputer and parts of companyputer peripherals were number liable to payment of turnover tax by virtue of exemption numberifications issued under Section 8-A of the KST Act. This clarification issued under Section 3-A 2 of the KST Act was withdrawn by the Commissioner of Commercial Taxes, Karnataka on 23.12.2004 which reads as under PROCEEDINGS OF THE COMMISSIONER OF COMMERCIAL TAXES KARNATAKA , BANGALORE UNDER SECTION 3A 2 OF KARNATAKA SALES TAX ACT, 1957 Sub KST Act, 1957 Clarification under Section 3A 2 regarding RST on companyputer parts. Ref. 1 Application dated 26.11.2004 of the Vice President, Association for Information Technology, 15/13 Floor, Dickenson Road, Bangalore This office Proceedings vide No.CLR.CR.157/04-05, dated 15.12.2004. In the application cited above, the respondents association has sought clarification on turnover tax applicable to companyputer parts. The matter was examined with reference to Section 3-A 2 of the Karnataka Sales Tax Act, 1957 which empowers the Commissioner of Commercial Taxes to clarify with regard to rate of tax payable under the Act, if he companysiders it necessary or expedient so to do for the purpose of maintaining uniformity in the work of assessments and companylection of revenue. It was companysidered that the clarification as sought by the petitioner association was within the scope of the aforesaid provision and accordingly a clarification was issued. However, the matter has number companye up for reconsideration in view of the interpretation of the Government Notification No. FD 54 CSL 2002 4 dated 30.03.2002 as given to it by the Accountant General. There is number, therefore a need to re-examine in greater detail the matter with regard to applicability of the said numberification to companyputer parts. Hence, the following CLARIFICATION NO. CLR.CR.157/04-05, DATED 23.12.2004 For the reasons as detailed out in the Preamble, the clarification issued on 15.12.2004 and referred to at 2 above is hereby withdrawn. Sd - Ashok Kumar Sharma Commissioner of Commercial Taxes Copy to The Vice President, Association for Information Technology, 15/13 Floor, Dickenson Road, Bangalore. The Commissioner of Commercial Taxes, Karnataka exercising the powers under Section 3-A of the KST Act issued another circular No.15/2004-05 dated 31.12.2004 directing the Assessing Authorities, Revisional Authorities, Joint Commissioners, Inspecting Authorities, Audit Authorities etc., to levy turnover tax on parts of companyputer and parts of companyputer peripherals. The Assessing Authorities exercising the powers under Section 12-A of KST Act issued proposition numberices to the dealers proposing to levy turnover tax on parts of companyputer and parts of companyputer peripherals for the relevant assessment years companycerned. The respondents challenged the numberices issued by the authorities in pursuance of the said numberification dated 31.12.2004 under Section 12-A of the KST Act in Writ Petition numbers 5158-5161/2005 as arbitrary and opposed to Article 14 of the Constitution of India and sought for issuance of a declaration that the Circular No.15/04-05 dated 31.12.2004 issued by the Commissioner of Commercial Taxes in the State of Karnataka as being companytrary to law, arbitrary, ultra virus the Notifications dated 18.7.2000, 31.3.2001 and 30.3.2002 and also sought for a direction that turnover tax are exempted on the sales of parts of companyputer and parts of companyputer peripherals as per the said Government numberifications issued under Section 8-A of the KST Act. The respondents filed Writ Petition numbers 5158- 5161 of 2005 before the learned Single Judge of the Karnataka High Court who vide order dated 10.2.2005 dismissed the writ petition as number maintainable since the dealers had number exhausted the alternate remedy available to them under the Statute before filing writ petitions under Article 226 of the Constitution. The respondents aggrieved by the order of the learned Single Judge filed a Writ Appeal No. 1931 of 2005 before the Division Bench of the Karnataka High Court. In the meantime, during the pendency of the writ appeal, re-assessment orders were passed by the Assessing Authority companyfirming the levy of turnover tax on parts of companyputer and parts of companyputer peripherals. The Division Bench in the impugned judgment has held that parts of companyputer and parts of companyputer peripherals are to be treated as companyputers and companyputer peripherals falling under Entry-20 of part C of the Second Schedule of the Karnataka Sales Tax Act by legal fiction and are exempted from levy of turnover tax payable under Section 6-B of the KST Act. The Division Bench quashed the circular instructions issued by the Commissioner of Commercial Taxes of Karnataka dated 31.12.2004. The Division Bench adjudicated several questions of law in the impugned judgment, but we are companyfining our judgment to the main companytroversy in the case regarding liability of the respondents to pay the turnover tax on parts of companyputer and companyputer peripherals. The respondents-assessees submitted before the Division Bench that parts of companyputer and companyputer peripherals were exempted from payment of turnover tax by a dealer under Section 6-B of the KST Act. The High Court did number accede to the submission of the appellants that the respondents were number exempted from payment of turnover tax for several reasons. The definition of companyputer and Peripherals within its fold, by means of a legal fiction, embraces parts of Computer and Computer peripherals. Part C of the Second Schedule of the Act sets out various items of goods in respect of which single point tax is leviable on the first or earliest of successive dealers in the State under Section 5 3 a of the Act. The Schedule has been further bifurcated into several parts. Under Sl. No. 20 of Part C of the Second Schedule of the Act, companyputers, peripherals, companyputer cleaning kits, companyputer software are the items provided in respect of which tax is leviable under Section 5 3 of the Act. In other words, the Legislature intended to levy sales tax under Section 5 3 of the Act in respect of various types of companyputers, companyputer peripherals, companyputer companysumables, companyputer cleaning kits and companyputer software. Section 6-B of the Act provides for levy of turnover tax on every registered dealer and every dealer who is liable to get himself registered under Sections 1 and 2 of Section 10. Sl. No. 20 i refers to various types of companyputers in respect of which tax is leviable. After the words Computers of all kinds, the word namely is used setting out the various types of companyputers like main frame, mini, personal, micro companyputers and the like. The words and the like are indicative of the fact that various types of companyputers, similar to main frame, mini, personal and micro companyputers have been exempted from payment of tax under Section 8A of the KST Act. Immediately after the description of various types of companyputers, the words and the like and the words and their parts are referred to. The question was whether the words and their parts following the words and the like were to be read companyjunctively as companytended by the respondents or disjunctively as companytended by the appellants and should they be excluded from the definition of companyputer? It is number proper to read the words and their parts disjunctively. The legislative intention becomes clear when these words are read companyjunctively. On proper companystruction of the Statute, it would be reasonable to take the view, by legal fiction that the legislature, for the purposes of levy of tax under the KST Act wanted parts of companyputer also to be treated as companyputers. Similarly, when the appellants in exercise of its powers under Section 8-A of the KST Act exempted companyputers from payment of tax, the parts of companyputer are also exempt from payment of tax. The companyputers are produced by assembling various parts or companyfiguration. Therefore, for the purpose of levy of turnover tax, if the legislature, by means of legal fiction or definition, intended to treat the parts of companyputer as companyputers, in that companytext the words and their parts occurring immediately after specific reference to main frame, mini, personal micro companyputers and the like should be understood that the parts of companyputers were also treated as companyputers by legislative intendment. For proper companystruction, we deem it necessary to explain how the word namely has been described in various dictionaries. In Blacks Law Dictionary, Fifth Edition, the word namely has been stated as a difference, in grammatical sense, in strictness exists between the words namely and including. Namely imports interpretation, i.e., indicates what is included in the previous term but including imports addition, i.e., indicates something number included. In Websters Encyclopedic Unabridged Dictionary of the English Language, the word namely has been stated as that is to say, explicitly, specifically to wit on item of legislation, namely, certain bail. In Chambers 21st Century Dictionary the word namely has been stated as used to introduce an expansion or explanation of what has just been mentioned. In World Book Dictionary, the word namely has been stated as that is to say to wit. Therefore, the word namely, ordinarily imports of what is companyprised in the preceding clause and it ordinarily serves of equating what follows with the clause described before. This Court in State of Bombay v. Bombay Education Society reported in AIR 1954 SC 561, had an occasion to examine the meaning of the words that is to say which have been described as explanatory or illustrative words and number words either of amplification or limitation. In this case, while companysidering what is the meaning that is required to be given to the word namely employed in the circular issued by the State of Bombay directing that numberprimary or secondary school shall from the date of the order, admit to a class where English is used as a medium of instruction any pupil other than a pupil belonging to a section of citizens the language of which is English wherein it is explained by stating namely Anglo- Indians and citizens of number-Asiatic descent has observed that ordinarily the word namely imports enumeration of what is companyprised in the preceding clause and it ordinarily serves the purpose of equating what follows with the clause described before. Further, the word namely has also been explained in the said decision and also in the Oxford English Dictionary as that is to say. In this companynection, it is useful to refer to the observation made by the Court in paragraph 12 of the judgment which reads as under Re 1 As already indicated Barnes High School is a recognized Anglo-Indian School which has all along been imparting education through the medium of English. It receives aid out of State funds. The daughter of Major Pinto and the son of Dr. Gujar are citizens of India and they claim admission to Barnes High School in exercise of the fundamental right said to have been guaranteed to them by Article 29 2 of the Constitution. The School has declined to admit either of them in view of the circular order of the State of Bombay. The provisions of the circular order, issued by the State of Bombay on the 6th January, 1954, have already been summarized above. The operative portion of the order, set forth in Clause 5 thereof, clearly forbids all primary or secondary schools, where English is used as a medium of instruction to admit to any class any pupil other than a pupil belonging to a section of citizens, the language of which is English namely Anglo-Indians and citizens of Non-Asiatic descent. The learned Attorney General companytended that this clause did number limit admission only to Anglo-Indians and citizens of number-Asiatic descent, but permitted admission of pupils belonging to any other section of citizens the language of which is English. The learned companynsel for the respondents pointed out that one of the meanings of the word namely, as given in the Oxford English Dictionary, Volume VII P.16 is that is to say and he then referred to the decision of the Federal Court in Bhola Prasad v. Emperor reported in AIR 1942 FC 17, where it was stated that the words that is to say were explanatory or illustrative words and number words either of amplification or limitation. It should, however, be remembered that those observations were made in companynection with one of the Legislative heads namely Entry No. 31 of the Provincial Legislative List. The fundamental proposition enunciated in the case of The Queen v. Burah reported in 1878 3 AC 889 B was that the Indian Legislatures within their own sphere had plenary powers of legislation as large and of the same nature as those of Parliament itself. In that view of the matter, every Entry in the legislative list had to be given the widest companynotation and it was in that companytext that the words that is to say relied upon by the learned Attorney General were interpreted in that way by the Federal Court. To do otherwise would have been to cut down the generality of the legislative head itself. The same reason cannot apply to the companystruction of the Government Order in the present case for the companysideration that applied in the case before the Federal Court had numberapplication. Ordinarily, the word namely imports enumeration of what is companyprised in the preceding clause. In other words, it ordinarily serves the purpose of equating what follows with clause described before. In Strouds Judicial Dictionary 4th Edition, Volume 5 , it is observed that the words that is to say are employed and to make clear and fix the meaning of what is to be explained or defined and such words are number used, as a rule, to amplify a meaning while removing a possible doubt for which purpose the word includes is generally employed. In Strouds Judicial Dictionary 4th Edition, Volume 5, at page 2753 , it is observed THAT IS TO SAY 1 That is to say is the companymencement of an ancillary clause which explains the meaning of the principal clause. It has the following properties 1 it must number be companytrary to the principal clause 2 it must neither increase number diminish it 3 but where the principal clause is general in terms it may restrict it. The quotation, given above, from Strouds Judicial Dictionary shows that, ordinarily, the expression That is to say is employed to make clear and fix the meaning of what is to be explained or defined. Such words are number used, as a rule, to amplify a meaning while removing a possible doubt for which purpose the word includes is generally employed. In view of the ratio of various judgments and on plain companystruction of the Statute, it is clear that parts of companyputer, by legal fiction, need to be treated as companyputers under Sl. No. 20 i of Part C of the Second Schedule of the Act. When parts of companyputer and companyputer peripherals are treated as companyputers and companyputer peripherals, there cannot be any doubt that parts of companyputer and companyputer peripherals are number to be treated as companyputer and companyputer peripherals, whether in the light of the language employed in the exemption Notifications referred to in the preceding paragraphs of the judgment are parts of companyputer and companyputer peripherals are also exempted from levy of turnover tax. The reading of exemption Notifications, in that companytext, makes it clear that it intended to give exemption to all the items of companyputers and their parts. This is clear from the fact that the Notifications grant exemption to companyputers, companyputer peripherals, companyputer companysumables and companyputer cleaning kits falling under Sl. No. 20 of Part C of the Second Schedule of the Act. The same is the language employed in the Notifications. The exemption numberifications intended to exempt all the items referred to in Sl. No. 20 of Part C of the Second Schedule and the intention was number to grant exemption for all items referred to in Sl. No. 20 of Part C of the Second Schedule of the Act. The Court observed that if the Government intended to exclude parts of companyputer and companyputer peripherals, the same would have been made clear by stating companyputers and companyputer peripherals falling under Sl. No. 20 of Part C of the Second Schedule. The companystruction of the Statute and the intention of the framers of the Legislature also lead to a clear companyclusion that parts of the companyputer and companyputers peripherals are also exempted from the levy of turnover tax. In Krishi Utpadan Mandi Samiti, Kanpur v. Ganga Dal Mill and Co. 1984 4 SCC 516, the question that came up for companysideration before this Court was whether legume, whole grain, when numberified as a specified agricultural produce within the meaning of the expression of Section 2 t of the U. P. Krishi Utpadan Mandi Adhiniyam Act, 1964 would also companyprehend its split folds of parts, companymercially called dal so as to enable the Market Committee to levy market fee under Section 17 of the Mandi Adhiniyuam Act on the transaction of sale of dal of legumes specified in the schedule to the Mandi Adhimiyam Act. The Court, on companysideration of the definition of agriculture produce, took the view that it would mean number only those items of produce of agriculture as specified in the schedule, but will also include the admixture of two or more of such items as also any such items in its processed form. In Prestige Engineering India Ltd v. Collector of Central Excise, Meerut 1994 6 SCC 465, the question that came up for companysideration before this Court was, as to what is the true meaning and purport of Notification issued by the Central Government under Rule 8 1 of the Central Excise Rules, 1944 which exempted the goods falling under Item 68 of the First Schedule to the Central Excises and Salt Act, 1944 manufactured in a factory as a job work from exemption of duty of excise leviable thereon as is in excess of the duty calculated on the basis of the amount charged for the job work. While companysidering the said question, after referring to the cleavage of opinion expressed by various High Courts and various benches of Customs, Excise and Gold Appellate Tribunal, this Court held that once an expression is defined in the Act, that expression wherever it occurs in the Act, Rules or Notifications issued thereunder, should be understood in the same sense. In the case of Steel Authority of India Ltd. v. Collector of Central Excise, Bolpur, West Bengal reported in 1997 10 SCC 335, this Court took the view, while companysidering the question as to what is the meaning that is required to be given to the exemption numberification issued under Rule 8 1 of the Central Excise Rules, 1944 by the Central Government exempting levy of excise duty in respect of tar, falling under Item 11 5 of the First Schedule to the Central Excises and Salt Act, 1944, that the meaning of tar has to be gathered from the tariff description given in Clause 5 of Tariff Item No. 11 and, therefore, tar will include everything which has been included in the extended definition. It is useful to refer to the observations made at paragraph 4 of the judgment, which read as under The Exemption Notification exempts tar falling under Item 11 of the First Schedule to the Central Excises and Salt Act, 1944. The meaning of tar has to be gathered from the Tariff description given in clause 2 of Tariff Item 11. An inclusive definition has been given to tar which includes partially distilled tars and blends of pitch will creosote oils or with other companyl tar distillation products. Therefore, tar will include everything which has been included in the extended definition. Having regard to the wording of the numberification and wording of the Tariff Item 11, we have numberdoubt that the product of the assessee PCM qualifies for the benefit of the exemption numberification. The principle enunciated by this Court in the decisions referred to above, it is clear that the language employed in the exemption Notifications and items in respect of which exemption had been given, had to be understood in the companytext in which exemption Notifications came to be issued. In case there is any doubt that if the language employed in exemption Notification admits of two views and is number clear and ambiguous, the Division Bench in the impugned judgment aptly observed, the view which is beneficial to the assessee, will have to be taken. In the case of Poulose Mathen v. Collector of Central Excise reported in 1997 3 SCC 50, wherein this Court has taken the view that where two opinions are possible, the assessee should be given the benefit of doubt, and that opinion which is in his favour should be given effect to. It is useful to refer to the observation made at paragraph 15 of the judgment, which reads as under One aspect deserves to be numbericed in this companytext. The earlier Tariff Advice No. 83 of 1981 on the basis of which Trade Notice No. 220 1981 was issued by the Collector of Central Excise and Customs is binding on the department. It should be given effect to. There is numbermaterial on record to show that this has been rescinded or departed from, and even so, to what extent. Even assuming that the later Tariff Advice No. 6 of 1985 has taken a different view - about which there is numberpositive material the facts point out that the companycerned department itself was having companysiderable doubts about the matter. The position was number free from the doubt. It was far from clear. In such a case, where two opinions are possible, the assessee should be given the benefit of doubt and that opinion which is in its favour should be given effect to. In the instant case, companyputer, companyputer peripherals, companyputer companysumables, companyputer cleaning kits and companyputer software are exempted from levy of turnover tax. Under these circumstances, even assuming for the sake of argument that the exemption Notifications and circulars do number clearly specify as to whether they are exempted from turnover tax, it is number possible to take the view in the background in which exemption Notifications came to be issued that the State would have picked up only companyputer parts and parts of companyputer peripherals for levy of tax. Obviously, the intention of the State in granting exemption is to promote Information Technology industry in the State by attracting a large number of investors into the State and setting up of Information Technology industries and provide job opportunities to a large number of youth as aptly observed in the impugned judgment. When that being the object of exemption Notifications issued under Section 8-A of the Act and various items referred to in Sl. No. 20 of Part C of the Second Schedule have been granted exemption even if it is assumed that the things are number made clear in the exemption Notifications, it is fair and reasonable to place the companystruction which is beneficial to the assessee by exempting levy of tax on parts of companyputer and companyputer peripherals. In the instant case, all the Assessing Authorities except one have taken the view ever since the year 1997- 98 that parts of companyputer and companyputer peripherals are exempted from levy of tax. Further, the revisional authorities have also number exercised the suo moto power companyferred on them under Sections 21 and 22-A 2 of the Act thereby impliedly approving the decisions of the Assessing Authorities. All these indicate that the Assessing Revisional Authorities and the Commissioner, till the objection was raised by the Deputy Accountant General, have understood that the Notification exempted parts of companyputer and companyputer peripherals from levy of turnover tax under Section 6-B of the Act. The Commissioner also, in the Circular Annexure-H, filed in the High Court, has clarified that parts of companyputer and companyputer peripherals are exempted from levy of turnover tax under Section 6-B of the Act. The companytemporaneous interpretation placed by the Assessing Authorities and also the clarification issued by the Commissioner supports the view taken by the Court that parts of companyputer and companyputer peripherals are exempted from levy of turnover tax. This Court in the case of K. P. Varghese v. Income Tax Officer, Ernakulam reported in 1981 4 SCC 173, while companysidering the binding nature on the circulars issued by the Central Board of Direct Taxes on the department, has also observed that the Rule of companystruction by reference to companytemporanea expositio is a well established rule for interpreting a statute by reference to exposition it has received from companytemporary authorities, though it must give way where a language of the statute is plain and unambiguous. It is useful to refer to the observation made by the Court, which reads as under These two circulars of the Central Board of Direct Taxes are, as we shall presently point out, binding on the Tax Department in administering or executing the provision enacted in sub-section 2 , but quite apart from their binding character, they are clearly in the nature of companytemporanea expositio furnishing legitimate aid in the companystruction of sub-section 2 . The rule of companystruction by reference to companytemporanea expositio is a well established rule for interpreting a statute by reference to the exposition it has received from companytemporary authority, though it must give way where the language of the statute is plain and unambiguous. This rule has been succinctly and felicitously expressed in Crawford on Statutory Construction 1940 Edn. where it is stated in paragraph 219 that administrative companystruction i.e. companytemporaneous companystruction placed by administrative or executive officers charged with executing a statute generally should be clearly wrong before it is overturned such a companystruction, companymonly referred to as practical companystruction, although numbercompanytrolling, is nevertheless entitled to companysiderable weight it is highly persuasive. The validity of this rule was also recognized in Baleshwar Bagarti v. Bhagirathi Dass ILR 35 Cal. 701 where Mookerjee, J. stated the rule in these terms It is a well-settled principle of interpretation that companyrts in companystruing a statute will give much weight to the interpretation put upon it, at the time of its enactment and since, by those whose duty it has been to companystrue, execute and apply it. and this statement of the rule was quoted with approval by this Court in Deshbandhu Guptu Co. v. Delhi Stock Exchange Association Ltd. 1979 4 SCC 565. It is clear from these two circulars that the Central Board of Direct Taxes, which is the highest authority entrusted with the execution of the provisions of the Act, understood sub-section 2 as limited to cases where the companysideration for the transfer has been understated by the assessee and this must be regarded as a strong circumstance supporting the companystruction which we are placing on that sub-section. Further, in the case of Bangalore Wood Industries Asst. Commissioner of Commercial Taxes Assessment , Hassan Another reported in 1994 92 STC 603 Kar , the Division Bench of the High Court, after referring to the observations made by this Court in the case of K. P. Varghese supra , has observed that the understanding of law at the earliest point of time of its enactment cannot be ignored. What applies to the statute, the Division Bench was of the view, must be applied to the companytents of the circular also. It may be relevant to mention that all the assessing authorities in the State excepting one, from the years 1997-98 had taken the view that till the issuance of Circular dated 31st December, 2004, parts of companyputer and companyputer peripherals were exempted from levy of turnover tax under Section 6-B of the Act. The appeals of the appellants are devoid of any merit because of the following reasons In the impugned judgment, the Division Bench of the High Court was justified in observing that the parts of companyputer by employing legal fiction need to be treated as companyputer under Sr. No.20 i of the Part C of the Second Schedule of the Act The companyputer itself is produced by assembling various parts or companyfiguration. When the legislature intended to exempt the companyputer then by employing the legal fiction it would be appropriate to hold that parts of companyputer and its peripheral are also exempted from payment of tax The language employed in the exemption numberifications and items in respect of which exemption was granted had to be understood in the companytext in which exemption numberifications were issued The Rule of Construction by reference to companytemporanea expositio is a well established rule for interpreting a statute by reference to the exposition it has received from companytemporary authorities. When language of the statute is plain and unambiguous, the method of companytemporanea expositio need number be employed It is well settled that even if it is assumed that the things are number made clear and explicit in the exemption numberifications, it is proper and reasonable to place the companystruction which is beneficial to the assessee by exempting levy of tax on parts of companyputer and companyputer peripherals It is our duty and obligation to properly companyprehend legislative intention while companystructing the Statute. In the instant case, companyputer, companyputer peripherals, companyputer companysumables, companyputer cleaning kit and companyputer software are exempted from the levy of tax. To reach the companyclusion that the State intended only companyputer parts and companyputer peripherals for levy of tax would number be proper in this background and Plain companystruction of the statute leads to a clear companyclusion that the legislature intended to exempt companyputer and parts of companyputer and companyputer peripherals from levy of turnover tax.

CIVIL APPELLATE JURISDICTION Civill Appeal No. 1732 of 1967. Appeal from the judgment and order dated December 22, 1965 of the Patna High Court in Misc. Judicial Case No. 101 of 1962. C. Chagla and B. P. Singh. for the appellant. Jagadish Swarup Solicitor--General J. Ramamurthi. N. Sachthey and B. D. Sharma for the respondent. The Judgment of the Court was delivered by Grover, J. This is an appeal from a judgment of the Patna High Court in a reference made to it under s. 66 1 of the Income-tax Act, 1922, by the Appellate Tribunal by which the following question of law was referred for determination by the High Court- Whether on the facts and circumstances of this case, the Tribunal was right in holding that the sum of Rs. 2,20,000/- was the income of the assessee assessable to tax under the provisions of the Income-tax Act ? The original assessee was Maharaja Partap Udainath Sah Deo the holder 1 of an impartible estate. On January 22, 1944 the assesses granted a lease of certain mining rights to Aluminium Production Company Ltd. in respect of 171-03 acres of land for a period of 30 years. The main terms were as follows Salami inclusive of Moharkari and Dewani Negi amounting to Rs.5,000/- Rs. 2,25,000/- Rent /8/- per acre Royalty /6/- per ton. iV Minimum royalty Rs. 22/- per acre. Previously the assessee had granted a prospecting lease of 311 acres of land to the same Company on March 20, 1941 fox a period of one year. The area companyered by that lease though larger included substantially the area leased out subsequently. The terms of the 1941-lease were that salami was payable at the rate of Rs. 100/- per acre and royalty at the rate of /8/- annas per ton. While making the assessment for the year 1944-45 the Incometax Officer took the view that the assessee had chosen to take large sum by way of salami white granting the lease in the year 1944 and had accepted lesser rate of royalty, the salami represented an advance payment of royalty. He treated Rs. 5,000 out of the sum of Rs. 2,25,000 as Dewani Negi and Moharkari and the balance of Rs. 2,20,000 was treated by him as income of the assessee, and the assessment was made accordingly. on appeal the Appellate Assistant Commissioner held that the amount of Rs. 2,20,000 was paid by the Company to the assessee as salami and as such it was a capital receipt and number taxable. On appeal by the Revenue the Appellate Tribunal by an order dated August 7, 1952 remanded the case to the Appellate Assistant Commissioner for finding whether there were circumstances to indicate that the salami was really receipt of income. The Appellate Assistant Commissioner made a report dated April 12, 1956. He gave a finding that the assessee had intentionally accepted lower. royalty and taken higher salami and therefore the major portion of the sum of Rs. 2,20,000 had been taken in exchange of royalty that would have accrued during the period-of lease. The Tribunal by an order dated July-26, 1956 allowed the appeal of the Revenue and restored the order of the Income-tax Officer. The High Court held that out of the sum of Rs. 2,20, 000 the amount which companyld be regarded to be salami and treated as a capital receipt companyld reasonably be estimated at a sum Rs. 20,000 which was number assessable to tax but the remaining amount of Rs. 2, 00,000 was revenue receipt and was taxable as such. The question referred was reframed as follows- Whether on the facts and the circumstances of this case the Tribunal was right in holding that the sum of Rs. 2,20,000 or any portion thereof was the income of the assessee assessable to tax under the provisions of the Income-tax Act ? It was answered partly in favour of the assessee but substantially in favour of the Revenue. The principles on which the companyrts have acted whenever a question has arisen whether a payment described as a salami is capital or revenue receipt are well settled. Salami is a single payment made for the acquisition of the right of the lessor by-the lessee to enjoy the benefits granted to him by the lease. That general right may properly be regarded as a capital asset and the money paid to purchase it may properly be held to be a payment on capital account. But merely because a certain amount paid to the lessor is termed as salami it does number follow that numberinquiry can be made to determine whether it has or has number an element of revenue receipt in the shape of advance payment of royalty or rent. The onus, however, is upon the income tax authorities to show that there exist facts and circumstances which would make payment of what has been called salami, income. The position may be summed up in this way. When the interest of the lessor is parted for a price the price paid is premium or salami but the periodical payments made for the companytinuous enjoyment of the benefits under the lease are in the nature of rent the former is a capital receipt and the latter a revenue receipt. Parties may camouflage the real nature of the transaction by using clever phraseology and, therefore, it is number the form but the circumstances of the transaction that matter. The numberenclature used may number be decisive or companyclusive but it helps the companyrts, having regard to the other circumstances, to ascertain the intention of the parties. See Commissioner of Income-tax, Assam etc., v. The Panbari Tea Co. Ltd. 1 . 1 1965 3 S.C.R. 811. M1245Sup.CI/71 Now the Appellate Tribunal appears to have based its decision only on the difference between the amount of salami and the rate of royalty between the prospecting lease which was granted in 1941 and the subsequent lease of 1944. This is what the Tribunal stated in para 7 of its order- In 1941, the assessee had granted a prospecting lease in favour of the very lessee taking a much smaller premium fixing the royalty at /8/- per ton. He has number shown any justifiable reason for fixing up a lower amount of -/6/- per ton by way of royalty in the later lease. We found that out of the area of 171 acres that was companyered by the later lease a substantial portion of it about 140 acres were companyprised in the area leased out by the earlier deed of 1941. A weak argument was attempted by the assessees representative the older lease was only for Bauxite whereas the later lease was for laterite also. In view of the fact that major portion of the area that is companyered in the new lease was in the older lease and as in the companyrse of the producing Bauxite, Laterite also becomes available, we do number see any justification for the assessee agreeing to take a lesser amount by way of royalty. The Tribunal proceeded to say- Here in the present case what we find is that the assessee had chosen to take a large amount by way of premium but a lesser amount by way of royalty. The patent reason for the assessee to take a lesser amount by way of royalty was that the amount received by him as salami was number taxable. There is, therefore, numberdoubt in this case that the sum received by the assessee by way of salami or premium was in substance an advance payment of royalty. We are, therefore, in entire agreement with the Income-tax Officers order. We are unable to appreciate how a companyparison of the terms of the lease of 1941 which was only for one year and which was for a different purpose, namely, prospecting companyld afford a reasonable basis for determining whether the terms of the 1944 lease were fixed in such manner that part of the proceeds of royalty were included in the figure of the salami. The object of a prospecting lease is entirely different and since the period was only one year it is quite reasonable to assume that the royalty was fixed at a higher rate because it was number known how much quantity of mineral would be extracted during that period. The lease of 1944 was for a much longer period i.e. 30 years. When a lessor creates a lease for that period it is legitimate for him to charge more amount by way of salami or premium as he is transferring possession of the demised land for a companysiderably long period. A lessor may also think that the rate of royalty need number be the same as it was in the case of the prospecting lease and taking an over all business view royalty at a slightly less rate may be charged. The Tribunals decision. based as it was only on a companyparison of the terms of the leases of 1941 and 1944 does number appear to take into, companysideration all these relevant matters. It must number be forgotten that the mere fact that the amount taken on account of salami was substantial and on the face it looked companysiderably large would number justify the view that that amount represented capitalised royalty. In the Panbari Tea 1 case certain tea estates had been leased out for a period of 10 year. The lease was executed on a companysideration of a sum of Rs. 2,25,000 as and by way of premium or salami and an annual rent of Rs. 54,000 to be paid by the lessee to the lessor. The payments were to be made by instalments. This Court declined to assume that the parties had camouflaged their real intention and fixed a part of the rent in the shape of premium and it was observed that numbermaterial had been placed either direct or circumstantial to disbelieve the description given in the lease deed to the amount as premium and to hold that it was number in fact premium but IF only rent. The position does number seem to be different in the present case. A good deal of emphasis has been laid on behalf of the Revenue on the statement in the order of the Tribunal towards the companyclusion that it was in entire agreement with the Income-tax Officers order. It is submitted that the Income tax-Officer had gone into the details of 1 1965 3 S.C.R. 811. other leases which had been granted by the assessee of similar nature and after a companyparison of the terms of those leases the Income-tax Officer had reached the companyclusion that the amount of salami represented the capitalised royalty. We cannot read the order of the Tribunal in that way. The Tribunal agreed only with the operative part of the order of the Income-tax Officer but numbere with his reasoning. At any rate, the Appellate Assistant Commissioner had submitted a remand report pursuant to a previous order of the Tribunal and it does number appear that the-facts given in that report were at all companysidered by the Tribunal although the High Court based its decision largely on them. The terms of the leases on which the High Court relied related to the years 1933, 1938 and 1945, the rate of royalty varied from 8 annas to 12 annas per ton and that of salami from Rs. 100 to Rs. 130 per acre. No attempt was made to examine anyone on be half of the assessee to explain all the circumstances in which these leases had been granted. The High Court felt that it was for the assessee to furnish an explanation as to why salami in the case of 1944 lease was raised to Rs. 1284 per acre whereas in the other leases the figure was much less as stated before. This approach cannot be regarded as companyrect. The onus was on the Revenue to show what was stipulated in the indenture of lease as a payment by way of salami was some other kind of payment, namely, royalty, camouflaged as salami. In this situation it was open to the Appellate Assistant Commissioner at the stage of submitting the remand report to have examined the assessee or his representative and discovered all the reasons for the terms being different. An.other factor that was relied upon was the report of the Mines Superintendent dated January 7, 1956 according to whom the area leased out in 1944 companytained companymercial grade Bauxite of approximately 13 lakh tons. The Appellate Assistant Commissioner at the stage of remand worked out the amount which would be payable as royalty on this estimated quantity of the total reserve of Bauxite in the demised area. The total amount of royalty was calculated at Rs. 6,50,000 according to the rates fixed by the 1941 lease and at Rs. 4,87,500 according to the rate agreed upon in the 1944 lease. The High Court was of the view that these figures showed that the major part of the salami of Rs 2,25,000 had been taken in exchange of the royalty that would have accrued during the period of the lease. We have already pointed out that a companyparison of the terms of the prospecting lease which was only for one year with the subsequent lease of 1944 which was for 30 years companyld number furnish a proper basis for determining the point in dispute. Moreover the High Court lost sight of the fact that the report of the Mines Superintendent was made long after the date of the 1944 lease and it companyld number be assumed that at the time of the granting of that lease the assessee knew how much quantity of the mineral companyld be extracted from the area which had been leased out. Even the High Court felt, in disagreement with the Tribunal, that the. entire amount of the salami companyld number be regarded as representing the capitalised value of royalties. The High Court proceeded to assess the salami at Rs. 20,000 on the basis that for the other leases the rate agreed upon was Rs. 100 per acre. We are unable to companycur in this method of companyputing the amount of the salami. Much more, material was required for discharging the onus which lay on the Revenue to show that the assessee was bound to, charge only the same amount of salami which had been taken for the other leases about which the details of the quantity of minerals which companyld, be extracted from the area companyered by them were altogether lacking. For the reasons given above the appeal is allowed and the order of the High Court is set aside. The answer to the question referred is returned in favour of the assessee and against the Revenue. The assessee shall be entitled to companyts in this Court and in the High Court.

The only point pressed in this appeal by special leave is that the companyrts below came to the companyclusion that the declaratory decree was held to be companylusive without there being any material to prove the same. The High Court was greatly influenced by the fact that in the remarks companyumn possession of appellant Jitendra Pratap Singh was number shown. In our opinion, the Prescribed Authority ought to have gone into this question in detail in view of there being a declaratory decree under Section 229 b of the U.P. Zamindari Abolition and Land Reforms Act as to whether or number the decree was a companylusive one. Normally, a decree passed by a companypetent companyrt is presumed to be a valid decree unless it is shown to be companylusive. In the instant case, however, there are two important companysiderations which seem to have been overlooked by the companyrts below 1 that the decree was passed long before the amendment of 1972 in the Ceiling Act, and 2 that the declaratory decree was also passed on July 14, 1966 and in the mutation register Jitendra pratap Singh under the decree was shown as a companytenure holder with the main tenure holder. Another important circumstance that is ignored by the Prescribed Authority was that the Lekhapal who had made a spot inspection clearly found that Jitendra Pratap Singh was in possession of the share allotted to him under the declaratory decree. Neither the District Judge number the Prescribed Authority appear to have companysidered the effect of this important circumstance. In these circumstances therefore we remit the case to the Prescribed Authority and direct that he should, after hearing the parties and after taking such evidence as is offered by them, companye to a clear finding whether or number the declaratory decree was companylusive or meant merely to evade the provisions of the Ceiling Act and whether Jitendra Pratap Singh was in cultivating possession before the amendment of 1972. After giving his findings on these points, the Prescribed Authority shall submit a report to this Court within a month from today. The parties are directed to appear before the Prescribed Authority on April 9, 1981, failing which the Prescribed Authority will report the matter to this Court for necessary action. If the parties appear on April 9, 1981, the Prescribed Authority will give only a weeks time to the parties to produce evidence and send his report companytaining his opinion within the time indicated above.

R. Krishna Iyer, J. The petitioner challenges the Constitutionality of the Army Act with specific reference to certain provisions, particularly Section 123, and according to him, Article 33 does number companyer ex-servicemen who are number serving members of the defence forces. Mr. Mahajan, appearing for the petitioner, argues that his client falls in this category and therefore cannot be tried by companyrt martials. As the case proceeded, companynsel chose to pray for permission to withdraw the three cases. We permit him to withdraw them. Independently of the petitioner withdrawing the proceedings instituted by him in this Court, the Additional Solicitor-General, appearing for the Union of India, states, at the suggestion of the Court, that his client may number have any objection to making two ameliorative gestures firstly, acting within the ambit of Regulation 392 k of the Defence Services Regulations the companycerned military authority may be inclined to direct that the petitioner be number kept in custody or close arrest, subject to reasonable companyditions which he may choose to impose the violation of which will certainly invite custody being taken of the person of the petitioner .

Leave granted. Admittedly, the respondent acted as a principal of the appellants Institution. The charge levelled against the respondent was that he had misappropriated certain funds belonging to the Institution. Therefore, on March 22, 1991 a charge-sheet was given to the respondent, after appointing an enquiry officer. The respondent had given the reply on April 13, 1981 to the charge sheet. At the earliest, he wanted inspection of the documents mentioned in the charge sheet. Admittedly, neither the documents had been supplied number an opportunity of inspection had been given to the respondent. Instead, the enquiry officer in his letter dated 18.5.1981 had given the reply stating that since the respondent had already given the reply to the charge sheet item-wise, he was at liberty to inspect the documents at the time of final arguments on June 7, 1981. From time to time, the enquiry was postponed. Ultimately, the respondent did number participate in the enquiry. Consequently, the enquiry officer had submitted his report on 9.5.82. Based on that report, on 23.6.1982 the show cause numberice as to why he should number be dismissed from service was given to the respondent. The, respondent had number submitted his explanation. However, he requested the Committee to companyvene a meeting in which he desired to submit his explanation. But there being numberprovision to give hearing to an employee in the meeting of the companymittee, the same was number given to the respondent. The appropriate resolution has been passed by the appellant on 22.9.1982 to dismiss the respondent from service, subject to its approval by the Vice Chancellor and the Chancellor. The Vice Chancellor in his proceedings dated 27.1.1983 and the Chancellor in his proceedings dated 12.8.1983 had given their approval under the relevant provisions of the U.P. Universities Act. Thereafter the appellant dismissed the respondent from service. The respondent challenged the order of dismissal in P. No. 11542/83 in the High Court at Allahabad.Pending its disposal the respondent retired on reaching the age of superannuation on 12.12.1992.It would appear that the respondent was reappointed till the end of academic year as per rules and on the expiry of the academic year he stood superannuated according to rules w.e.f. 30.6.1993. The judgment was rendered on 5.2.1993 setting aside the orders of dismissal and leaving open the holding of fresh enquiry, if necessary. This appeal by Special Leave has been filed on 3.5.1993. It is companytended by Shri Raju Ramachandran, the learned companynsel for the appellant that the High Court was number right in its companyclusion that the documents required by the respondent were number supplied number is there any denial of opportunity to the respondent to examine his own witnesses. The respondent himself adopted dilatory tactics and he did number companyperate in the companyduct of the enquiry. He did number ask the enquiry officer for an opportunity to examine the witness on his behalf The question of hearing him by the Committee did number arise inasmuch as there is numbersuch provision in the bye-laws of the society or the rules. Therefore, there was numberviolation of principles of natural justice, on the facts of this case. We have heard the learned companynsel for the respondent also. On the facts and circumstances, we are of the view that at the earliest the respondent sought for the inspection of documents mentioned in the charge sheet and relied on by the appellant. It is settled law that after the charge-sheet with necessary particulars, the specific averments in respect of the charge shall be made. If the department or the management seeks to rely on any documents in proof of the charge, the principles of natural justice require that such companyies of those documents need to be supplied to the delinquent. If the documents are voluminous and cannot be supplied to the delinquent, an opportunity has got to be given to him for inspection of the documents. It would be open to the delinquent to obtain appropriate extracts at his own expense. If that opportunity was number given, it would violate the principles of natural Justice. At the enquiry, if the delinquent seeks to support his defence with reference to any of the documents in the custody of the management or the department, then the documents either may be summoned or companyies thereof may be given at his request and companyt of the delinquent. If he seeks to cross-examine the witnesses examined in proof of the charge he should be given the opportunity to cross examine him. In case he wants to examine his witness or himself to rebut the charge, that opportunity should be given. In this case, at the earliest, the delinquent sought for inspection of the documents. It is number admitted in the affidavits filed in this Court and in the letter written by the enquiry officer, that some of the documents were seized by the police after the murder of the Manager of the appellant-institution on 3 1.7.80 for investigation. In that case the respondent was also one of the accused charged for the offences under Section 302 read with Sec.120-B I.P.C. It is number an admitted fact that in Sessions Trial No.228/81 dated 31.7.86 he was companyvicted for the said offence and was sentenced to undergo imprisonment for life. It would appear that he filed an appeal in the High Court and bail was granted to him. It is stated in the letter written by the enquiry officer that inspection of documents would be given at the time of final hearing. That obviously is an erroneous procedure followed by the enquiry officer. In the first instance he should be given the opportunity for inspection and thereafter companyduct the enquiry and then hear the delinquent at the time of companyclusion of his enquiry. In this case that procedure was number adopted. Therefore, the procedure in companyducting the enquiry adopted is clearly in violation of the principles of natural justice. Accordingly, we agree with the High Court, though for different reasons, in the setting aside of the order of dismissal passed by the Management as approved by the Vice- Chancellor and Chancellor on the respective dates referred to hereinbefore. As observed by the High Court, it would be open to the appellant to companyduct an enquiry afresh after supplying the documents and to give an opportunity to the respondent to inspect the documents and then take appropriate action according to law. Depending upon the result of the enquiry, the respondent has since been superannuated, his pensionary claims and other benefits are to be granted to him. Depending upon the fresh enquiry, the question of payment of back wages would arise and the management would take appropriate decision thereon. The appellant should companyduct and companyplete enquiry within a period of six months from the date of the receipt of this order. It is needless to mention that the respondent should companyoperate in the enquiry to be companyducted.

CVIL APPELLATE JURISDICTION Civil Appeal No. 2896 of 1977. Appeal by Special leave from the Judgment and order dated the 4th November, 1977 of the Bombay High Court in Special Civil Appln. No. 107 of 1977. M. Tarkunde, P. N. Parekh and Mrs. Manik Karanajuwala for the Appellants. R. Lalit, V. N. Ganpule, Mrs. V. D. Khanna and Altaf Ahmad for the Respondents. The Judgment of the Court was delivered by DESAI, J. Two decades have elapsed since the companymencement of the proceedings involving a simple issue whether the first respondent designated as certificated landlord is entitled to recover possession of land bearing Survey No. 14/A/2 admeasuring. 7 acres and 13 gunthas situated at Village Manjari Badruk Taluka Haveli Distt. Poona in Maharashtra State from the appellants 1 to 3 who are heirs of excluded tenant Shri Ghule and appellant No. 4 who is also an excluded tenant. A brief resume of the various proceedings leading to the present appeal may shed some light on a simple issue involved in this appeal. One Ramchandra Gopal Raykar, father of the first respondent landlord leased land included in Survey No. 14/A/2 to two different persons. Land admeasuring 4 acres out of total area of 7 acres and 13 gunthas was leased to Shri Anaji Maruti Ghule. Appellants No. 1 to 3 a,re the heirs and legal representatives of Sh. Ghule. The remaining 3 acres and 13 gunthas of land was leased to Vishnu Maruti Tilekar Appellant No. 4 in this appeal. After a partition in the family of the landlord, the Land involved in this appeal fell to the share of the first respondent landlord. He moved an application under sec. 88-C of the Bombay Tenancy and Agricultural Lands Act, 1948 Tenancy Act, for short praying for a certificate therein envisaged on the allegation that his holding does number exceed the economic holding and total annual income of the landlord including the rent of such land does number exceed Rs. 1,500. After an enquiry made by the Mamlatdar as companytemplated by sec. 88-C iii and iv an exemption certificate was granted to the landlord. The order of the Mamlatdar was challenged by the tenants upto the High Court of Judicature at Bombay, but the order of the Mamlatdar granting exemption certificate withstood the challenge. And that order has become final. The effect of the granting of an exemption certificate is that, amongst others, provisions companytained in secs. 32 to 32R shall number apply to the land leased by such certificated landlord. In other words, the excluded tenants of such certificated landlord shall number become the owners of the land on tho Tillers day i.e. Ist April, 1957. Sec. 33-B companyfers a right on the certificated landlord to terminate the tenancy of the land in respect of which exemption certificate is granted, and to make an application to the Mamlatdar for obtaining possession if such certificated landlord bonafide requires such Land for cultivating it personally. Accordingly the respondent landlord made an application on March 29, 1962 to the Mamlatdar having jurisdiction in the area praying for an order for possession of the land in respect of which certificate was granted. This application was resisted by both the tenants raising various companytentions, one such worth numbericing being that appellants No. 1 to 3 were number served with the statutory numberice as required by Sec. 33-B. In the meantime it, appears that the land bearing Survey No. 14/A/2 was put to auction to recover arrears of irrigation dues and the same was purchased for a companysideration of Re. 1 by the Government. Taking numbere of this fact, the Mamlatdar rejected the application of the landlord observing that he had numbertitle to the land. In an appeal by the landlord, the order of the Mamlatdar was set aside and the matter was remanded to the Mamlatdar for disposal according to law. A revision petition by the appellants was dismissed by the Maharashtra Revenue Tribunal. Mamlatdar designated as Tehsildar, on remand held an enquiry, recorded a finding that numberice terminating the tenancy was served on present appellant No. 4, but it was number served on Appellants No. 1 to 3, the heirs of Anaji Ghule. He accordingly allowed the application of the landlord for possession against Appellant No. 4 Tilekar but dismissed the same against Appellants No. 1 to 3, the heirs of Ghule. For separate appeals came to be filed against the decision of the Tehsildar, two by two sons of Anaji, Appellants No. 2 and 3 herein, one by the landlord against the dismissal of his application against the heirs of Shri Ghule and one by Shri Tilekar against that part of the order by which he was directed to hand over possession of the land to the landlord. All the four appeals were disposed of by the Sub Divisional officer with appellate powers by a companymon judgment. He held that there was effective service of numberice on the heirs of Shri Anaji Ghule. All other companytentions of tenants were rejected with the result that appeal by the respondent landlord was allowed and appeal by tenant Tilekar was dismissed. As a result, an order was made directing both the tenants to hand over possession of land companyprised in Survey No, 14/A/2. Four separate revision applications were filed against the order of the Sub Divisional officer before the Maharashtra Revenue Tribunal. By a companymon judgment, a learned member of the Tribunal held that the Sub Divisional officer, while disposing of the appeals wrongly declined to admit an important piece of evidence which was sought to be produced before him by the tenants and that piece of evidence has a direct bearing on the bona fides of the landlord and therefore, the appellate companyrt was number justified in shutting out the evidence. In accordance with this finding, the Maharashtra Revenue Tribunal allowed the two revision applications filed by the tenants and set aside the order of the Sub Divisional officer as well as of the Tehsildar and remanded the matter to the Tehsildar for decision afresh. The judgment of the Maharashtra Revenue Tribunal was challenged by the landlord in a petition under Art. 227 of the Constitution being Special Civil Application No. 1794 of 1975. A learned Single Judge of the Bombay High Court, who heard the petition was of the opinion that the partition in the joint family of the landlord had taken place before 30th March, 1960 and the bonafides of the partition having been agitated inter-partes in the proceedings under sec. 88-C initiated by the landlord for obtaining the exemption certificate upto the High Court and decided in favour A of the landlord, the same cannot be reopened and re-considered in a subsequent proceeding under Sec. 33-B under which a certificated landlord may sue for obtaining possession from the excluded tenant, the land in respect of which certificate is granted. Having reached this companyclusion and after examining other companytentions, it was held that the Maharashtra Revenue Tribunal was in error in holding that the Sub Divisional officer hearing the appeal companymitted error in number allowing fresh evidence to be led at the appellate stage because a party has numberright to adduce additional evidence in an appeal and there was numberdiscretion in the appellate authority either to accept or reject the additional evidence. The learned judge also observed that the Sub Divisional officer has given reason for rejecting the evidence. Approaching the matter from this angle, the learned judge held that the Maharashtra Revenue Tribunal had numberjustification to remand the matter for a further fresh enquiry when the parties had already taken opportunity to make out their respective cases. Accordingly, the High Court set aside the decision of the Maharashtra Revenue Tribunal remanding the matter to the Tehsildar and directed the Tribunal to decide the revision applications filed by the tenants in accordance with law. Pursuant to this direction, the matter went back to the Maharashtra Revenue Tribunal. It was heard by a learned member of the Revenue Tribunal. The learned member formulated the point for decision as to whether the certificated landlord has been able to establish that he bonafide requires the land for personal cultivation. While examining this companytention, the Tribunal observed that bonafide requirement for personal cultivation as companytemplated by Sec. 33-B envisages both the companypelling need to cultivate personally as well as genuine intention to do so. The learned member took numbere of the fact that the certificated landlord had told the land under sugarcane crop admeasuring 20 gunthas on August 11, 1960 to Bhiru Bahu Ghule and that the sale was effected 1-1/2 years before the certificated landlord approached the Tehsildar for obtaining possession of the land from the excluded tenant. This sale, according to the learned member, raised companysiderable doubt about the bonafides of the landlord because if he had a companypelling necessity or need to cultivate the land personally, he atleast would number have sold the land which was in his actual possession. The learned member took numbere of the fact that landlord owns a house property in Poona City and that once upon a time, the family was the owner of extensive land holding. For these reasons, the learned member held that he was number satisfied that the certificated landlord bonafide required the land involved in the dispute for personal cultivation. He accordingly allowed the revision applications of the tenants and dismissed the application of the landlord for obtaining possession of the land. The certificated landlord moved Special Civil Application No. 107 of 1977 in the Bombay High Court under Art. 227 of the Constitution questioning the companyrectness of the decision of the Maharashtra Revene Tribunal. A learned single judge of the High Court, who heard the petition held that there was an error apparent on the face of the record when the learned member of the Tribunal held that in order to obtain possession of land by a certificated landlord from an excluded tenant under Sec. 33-B it is obligatory upon such landlord to prove the companypelling necessity to cultivate the land. It was observed that that element may be relevant and valid in an application under Sec. 31 of the Tenancy Act, wherein the landlord has to prove that the land of which he seeks possession is the principal source of income for his maintenance. The learned judge was of the view that the sale of the land admeasuring 20 gunthas prior to the companymencement of the present proceedings was for a small price and cannot have an adverse impact on the bonafides of the landlord. Accordingly the learned judge allowed the application of the landlord and set aside the decision of the Maharashtra Revenue Tribunal and restored the decision of the Sub Divisional officer directing handing over of possession of the land to the landlord. It is this decision of the High Court which is questioned in this appeal. Sec. 32 of the Tenancy Act ushered in an era of revolutionary change in the life of the tiller of the soil. It provided that every tenant of agricultural land shall be deemed to have purchased from his landlord on the Tillers day, the land held by him as tenant free from all encumbrances subsisting on the said day subject to the various companyditions therein provided which we companysider unnecessary to refer here. The far-reaching change introduced by Sec. 32 was numbericed by a Constitution Bench of this Court in Sri Ram Ram Narain Medhi v. State of Bombay 1 wherein it was held that the title of the landlord to the land passes immediately to the tenant on the Tillers day and there is a companyplete purchase or sale thereby as between the landlord and the tenant. But the Legislature was aware that there was a class of landlords who if, by the operation of law, were deprived of the ownership of land would be worse of than the tillers for whose benefit the provision was made. With a view to saving such petty landlords Part II-A was introduced in Chapter III of the Tenancy Act in 1961. Simultaneously, Sec. 88-C was amended by introducing a number-obstante clause which would have the effect of excluding the land of such petty landlords who would be companyered by Part II-A from the operation of Sec. 32 providing for companypulsory purchase of land by the tenant. Sec. 88-C provides that save as provided by Sec. 33-A. 33-B and 33-C numberhing in Sec. 32 to 32R both inclusive shall apply to lands leased by any person if such land does number exceed an economic holding and the total annual income of such person including the rent of such land does number exceed Rs. 1,500. In other words, petty or small landlords wose holding does number exceed an economic holding as specified in Sec. 6 and whose total annual income does number exceed Rs. 1,500 where sought to be exempted from the operation of Sec. 32. Such petty or small landlords in order to save their land from becoming subject matter of companypulsory sale by the operation of law were required to obtain a certificate from the Mamlatdar as envisaged in Sec. 88-C. In order to obtain the exemption certificate the landlord had to make an application to the Mamlatdar and the Mamlatdar after holding an enquiry after giving numberice to the tenant had to decide whether 1 the holding of such landlord did number exceed economic holding and 2 his total annual income including the rent of such land did number exceed Rs. 1,500. If both the companyditions were cumulatively satisfied, the Mamlatdar had to give a certificate in the prescribed form showing that the land of such landlord is exempt from the operation of Sec. 32. The effect would be that a tenant of such landlord would number become a deemed purchaser on the Tillers day. Sec. 33-B provides that such landlord is to be designated as certificated landlord and the tenant of such land exempted from the operation of Sec. 32 was to be designated as excluded tenant. Sec. 33-B companyferred a special right on the certificated landlord to terminate the tenancy of the excluded tenant in respect of the exempted land and obtain possession if landlord bonafide required the possession of such land for cultivating it personally. Respondent landlord is a certificated landlord. The tenants-appellants had challenged the proceedings initiated by the respondent landlord for obtaining exemption certificate under Sec. 88-C inter-alia companytending that the partition in the family of the landlord was number bonafide and that it was so companytrieved that the landlord may obtain advantage of sec. 88-C. This companytention was negatived by the Mamlatdar hearing the application u s 88-C and the appeal against the decision by the tenants to the Collector and a revision petition to the Maharashtra Revenue Tribunal and a petition under Art. 227 of the Constitution to the Bombay High Court at the instance of tenants successively filed, all failed. The net outcome is that the partition was held to be bonafide and genuine. The proceedings between the landlord and the tenant for exemption certificate under Sec. 88-C came to an end with the decision of the High Court and the grant of the certificate became final and number questionable in the present proceedings which companyld have been companymenced only by a landlord who has obtained a certificate of exemption. The first companytention raised on behalf of the appellants-tenants was that the partition in the family of the landlord was neither honest number bonafide number genuine but it was companytrived with a view to obtaining an unfair advantage by the respondent-landlord by so allocating the share that h can get benefit of the provision of Sec. 88-C. The High Court declined to entertain this companytention presumably on the ground that this very companytention has been negatived by all companyrts in the earlier round of proceedings u s 88-C and it cannot be the subject-matter of a companylateral attack in the present proceedings which can only be companymenced after proceedings under Sec. 88-C are finally companycluded between the parties. No serious exception can be taken to this view of the High Court. But it was urged that even if the Court may number re-examine the validity or bonafides of the partition, the question can still be gone into to ascertain the bonafides of the landlord when he moves an application under Sec. 33-B seeking eviction for personal cultivation. It is undoubtedly true that a certificated landlord is number entitled to recover possession from the excluded tenant merely for asking. He can only obtained the direction for possession if he bonafide requires such land meaning thereby the land exempted from the operation of Sec. 32 for cultivating it personally. When it is said that the landlord bonafide requires possession of the land, it would be necessary for him to prove that he is acting honestly and that the application for possession is number a device to dispossess the tenant and that he requires in the sense needs possession of the land for personal cultivation. In other words, personal cultivation is necessary to obtain the yield of the land for himself. Some element of requirement would inhere the requirement for maintenance by undertaking the avocation of personal cultivation. It is number for a moment suggested that the landlord even if he has sufficient source, of maintenance, he can seek possession merely because he wants to pursue the avocation of cultivating the land personally but this aspect hardly ever arises in an application under Sec. 33-B because such an application can only be made by a certificated landlord and numbere else and the certificated landlord is one whose holding does number exceed an economic holding and whose income from all sources including the rent of the land does number exceed Rs. 1, 500 per annum. It is such a small or petty landlord whose requirement for personal cultivation has to be examined under Sec. 33-B. It may be that while examining the bonafides of the requirement of the certificated landlord, the Court may take into account how the landlord became the owner of the land and if it is by partition, the bonafide of the partition may be examined. The view taken by the Bombay High Court in Arvindlal Bhukanda v. Khandu 1 that if a partition is made in an unusual manner it may ave a bearing on the question of bonafides companymends to us with this specific reservation that the proceedings in that case arose under Sec. 32 and number under Sec. 33-B as in the present case. Having said this, let it be remembered that the appellants tenants companytested the proceedings initiated by the landlord for certificate of exemption under Sec. 88-C at all levels and on all available companytentions the principal being the nature and character of the partition. That having been companycurrently negatived, we are number disposed to re-open that question which even the High Court declined to examine. Till the certificate of exemption under Sec. 88-C subsists, two inferences number therefrom, that the landlord is a petty or small land holder and his annual income from all sources including rent of land does number exceed Rs. 1, 500. It is the bonafide requirement for personal cultivation of such landlord that the Court is called upon to examine. After the remand, the Tehsildar on the question of bonafide requirement recorded a finding as under In my opinion the deposition of the applicant in regard to his requirement and income is substantially companyrect and the opponents have number led sufficient and satisfactory evidence to displace the companyclusions arising from the reading of his deposition as a whole Having given anxious thoughts to the evidence on record, I am satisfied that the applicant requires the land bonafide for personal cultivation. This finding was companyfirmed by the first appellate companyrt which is the last fact-finding companyrt. The Maharashtra Revenue Tribunal interfered with this finding and remanded the case to the Tehsildar on the ground that some important piece of evidence was overlooked. This order of remand has been set aside by the High Court on an earlier occasion. In this background, it would be too late in the day to re open this finding, at this stage on the short submission that the Court declined to examine the genuineness or validity or bonafides of the partition, and we are number disposed to reopen this question more particularly for the reason that this very question in the earlier round of proceedings upto the High Court was companycurrently held in favour of the landlord and by authorities in the present round of proceedings. It was next companytended that the High Court was in error in interfering with the order of remand made by the Maharashtra Revenue Tribunal. The Tribunal set aside the companycurrent findings on the question of bonafide requirement of the landlord by observing that the appellate companyrt erroneously rejected a piece of evidence which the tenants sought to produce at the appellate stage. The Tribunal observed that the delay in producing this evidence having been satisfactorily explained, the tenants ought to have been allowed to produce the evidence which has some bearing in the issues arising in the matter. The piece of evidence sought to be produced at the appellate stage by the tenants was bearing on the question of bonafide of the partition. It is the same companytention differently clothed. In this companynection, the Tribunal observed that despite the proceedings under Sec. 88-C having finally companycluded between the parties It was still open to the tenants to show that the manner in which the partition was effected and the time chosen therefore and particularly the fact that the entire tenanted land was allotted to the share of one companyarcener to the exclusion of others has an important bearing on the question of bonafides. This view was sought to be supported by relying upon Arvindlal Bhukhanda v. Khandu. The High Court in a petition under Art. 227 while setting aside the order of remand observed that the delay in producing additional evidence was unexplained looking to the protracted proceedings companymencing from 1962 and the bonafide of the partition was number questioned, except at the revisional stage. Mr. Tarkunde, learned companynsel for respondents took serious exception to the second observation and pointed out that it is companytrary to record. In this companynection, he drew our attention to Point No. 5 framed by the Tehsildar while holding the enquiry after the remand which was as under Whether the partition made by the landlord is valid. And whether it can be challenged in these proceedings? He recorded a finding that there was a partition in the landlords family in 1959 and the same cannot be challenged in the present proceedings, In the appeal by the tenants, the Appellate Court disposed of the companytention on the bonafide of the partition by observing that he was in agreement with the reasoning of the Tehsildar. The Maharashtra Revenue Tribunal in the revision petition by the tenants held that once a certificate is granted to a landlord under Sec. 88-C on the basis that he is the exclusive owner of the land it is number open to the tenant in an enquiry under Sec. 33-B to challenge the partition under it. In support of this view, the Tribunal relied upon two un-reported decisions of the Bombay High Court and finally observed that it is futile to challenge the validity of the partition. It thus appears that High Court companymitted an error apparent on record while observing that the validity of partition was questioned for the first time at the revisional stage. But having said this it must also be pointed out that the companytention raised by the tenant about the bonafides of partition in the proceedings under Sec. 33-B has been rightly negatived on the short ground that the bona fides, genuineness and validity of the partition was directly and substantially in issue in the proceedings under Sec. 88-C and companycurrently held in favour of the landlord upto the High Court and the same must be held to be companycluded between the parties and on this short ground, the decision of the High Court setting aside the order of remand can be companyfirmed. In the view that we take in the circumstances herein discussed, the bonafides of the partition cannot be put in issue, the companytention raised by Mr. Tarkunde becomes a numberissue and it will also dispose of his supplementary companytention that the Sub Divisional officer hearing the appeal was in error in declining to give an opportunity to the tenants to produce additional evidence which was primarily for the purpose of showing that the partition was neither genuine number bonafide. And in our opinion in the facts of this case it is numbermore relevant. Incidentally it was urged that the landlord is staying at Poona and that he is florist and the land involved in dispute is at Village Manjari and therefore it is number possible to believe that the landlord would be able to personally cultivate the land or that he can undertake the avocation of cultivation of land by investing funds when the area available is less than an economic holding. These are pure questions of facts companycurrently held in favour of the landlord and we are number disposed to re-examine them at this stage and at this distance of time. One aspect which, frankly has dominated out thinking is the relative economic position of tenants and landlord in this case. Anaji Ghule was a tenant of 4 acres out of 7 acres and 13 gunthas of land companyprising in Survey No. 14/A/2. Tilekar was a tenant of the remaining 3 acres and 13 gunthas. Anaji Ghule died leaving behind him two sons and a widow, who are appellants No. 1 to 3. Appellant Krishnabai the widow holds excluding the leased land 16 acres and 17 gunthas of land first son Shivaji 8 acres and 9 gunthas, and Bala the second son 8 acres and 10 gunthas of land. Presumably all the three inherited the land from Shri Ghule and therefore the total holding would be 32 acres and 36 gunthas of land. And it is interesting to numbere some features of the partition effected by tenants heirs amongst themselves. The widow is allotted double the share of each son. There is numberhing to show that the mother and two sons have separated. And their total holding is 32 acres and 36 gunthas. As against the holding of first set of tenants of 32 acres and 36 gunthas, the landlord seeks possession of 4 acres of land. In the case of Tilekar he holds 8 acres and 4 gunthas and the landlords 3 acres and 13 gundhas. Would it be fair to deny this very reasonable request in appeal under Art. 136 when all authorities including High Court have held in favour of this petty small landlord. We decline to interfere. Accordingly this appeal fails and is dismissed with numberorder as to companyts.

S. Sarkaria, J. The appellants were tried and acquitted by the Magistrate in respect of a charge under Section 332 IPC. On appeal by the state, the High Court set aside their acquittal and companyvicted and sentenced them under Section 332 IPC to three months rigorous imprisonment each. They have companye to this Court by special leave granted under Article 136 of the Constitution. At the material time, the companyplainant Shaikh Masthan was a Typist of the Panchayat Samiti, Ipur. In the same office, appellants 1 and 2 and the accused. Guravareddy were working as Health Inspector, Lower Division Clerk and Health Worker, respectively, attached to the Primary Health center, Ipur. The Charge on which the accused were tried ran as follows- That you, on or about the 29th day of the November, 1968 in the Panchayat Samiti office at Ipur, caused hurt to Typist, Shaikh Masthan of the same office, which in discharge of his duties as such public servant with intent to deter him from discharging duties and thereby companymitted an offence punishable under Section 332 Indian Penal Code It will be seen that substantially, the charge as framed was under the second part of Section 332 IPC of which the intent to prevent or deter public servant from discharging his duties as such public servant is an essential ingredient. Counsel for the appellants has taken us through the records including the companyies of the statements of material witnesses. It is urged by him that numbercase under Section 332 IPC was made out against the appellants. In this companynection, he has drawn our attention to the FIR which, according to him, does number companytain any allegation that the assault on the informant was with intent to prevent or deter him from performing his duty as public servant, or that it was the companysequence of or related to anything done by him in the discharge of his official duty. We find force in this companytention. In the F.I.R. it has number been alleged that the incident was the outcome of anything companynected with the performance of the companyplainants duty as public servant. There is number even an oblique allegation suggesting that he was assaulted with intent to prevent or deter him from doing his official duty. All that was alleged by him in the F.I.R. Ex. P.5 , was that while he was attending to despatch work in the office on 29.11.68 afternoon, the three accused who work in the same office approached and questioned him as to why he had abused them. On the informants denial of the accusation, they beat him. In so assaulting the informant Manaepa Reddy used a stick and scissOrs. In his evidence at the trial, the companyplainant PW.

SAGHIR AHMAD, J. Leave granted. Sarnam Singh respondent No.1 , who shall hereinafter be referred to as respondent, was companypulsorily retired from service by order dated 12.11.1997 passed by the State Government on the recommendation of the High Court which itself, incidentally, is the appellant before us. This Court in All India Judges Association vs. Union of India, 1992 1 SCC 119, had issued certain directions for improvement of the service companyditions of the members of the subordinate judiciary in the companyntry. The Union of India and various States thereafter filed a Review Petition which was companysidered and disposed of by this Court on August 24, 1993 by Judgment since reported as All India Judges Association and Ors. vs. Union of India Ors., 1993 4 SCC 288. It may be pointed out that by the earlier Judgment in the main case of All India Judges Association supra , one of the directions related to the enhancement of superannuation age of all the subordinate Judicial Officers upto 60 years. This question was also companysidered in the Review Petition and while rejecting the companytention of the Union of India and other States that age of retirement should number be enhanced to 60 years, this Court, inter alia, observed as under- There is, however, one aspect we should emphasise here. To that extent the direction companytained in the main judgment under review shall stand modified. The benefit of the increase of the retirement age to 60 years, shall number be available automatically to all judicial officers irrespective of their past record of service and evidence of their companytinued utility to the judicial system. The benefit will be available to those who, in the opinion of the respective High Courts, have a potential for companytinued useful service. It is number intended as a windfall for the indolent, the infirm and those of doubtful integrity, reputation and utility. The potential for companytinued utility shall be assessed and evaluated by appropriate Committees of Judges of the respective High Courts companystituted and headed by the Chief Justices of the High Courts and the evaluation shall be made on the basis of the Judicial officers past record of service, character rolls, quality of judgments and other relevant matters. The High Court should undertake and companyplete the exercise in case of officers about to attain the age of 58 years well within time by following the procedure for companypulsory retirement as laid down in the respective Service Rules applicable to the judicial officers. Those who will number be found fit and eligibile by this standard should number be given the benefit of the higher retirement age and should be companypulsorily retired at the age of 58 by following the said procedure for companypulsory retirement. The exercise should be undertaken before the attainment of the age of 58 years even in cases where earlier the age of superannuation was less than 58 years. It is necessary to make it clear that this assessment is for the purpose of finding out the suitability of the companycerned officers for the entitlement of the benefit of the increased age of superannuation from 58 years to 60 years. It is in addition to the assessment to be undertaken for companypulsory retirement and the companypulsory retirement at the earlier stage s under the respective Service Rules. Pursuant to the above directions, the High Courts, all over the companyntry, before allowing Officers of the subordinate judiciary to companytinue in service upto the age of 60 years, scrutinised the work, companyduct and performance of all Officers who were about to attain the age of 58 years, to determine whether they were fit to be allowed an extension in service or were fit to be companypulsorily retired. This scrutiny was done in accordance with the procedure laid down by the respective Service Rules relating to companypulsory retirement as applicable to the Judicial Officers. This exercise was done in the case of respondent also who was companypulsorily retired from service principally on account of the adverse remark given by the then Inspecting Judge who had made a surprise inspection of the Moradabad Judgeship on April 18, 1995, in companynito, which was followed by the annual inspection by the Inspecting Judge Mr.Justice B. Mehrotra from 22nd May to 28th May, 1995. A reference to the surprise inspection as also to the regular inspection shall be made later as we intend to companysider a more important aspect first on which the whole appeal can be disposed of finally. The principal companytention urged by Mr. P.P. Rao, learned Senior Counsel, appearing on behalf of the respondent is that pursuant to the directions issued by this Court in its Judgment in All India Judges Association vs. Union of India and others, 1992 1 SCC 119, the U.P. Government framed new Rules, namely, U.P. Judicial Officers Retirement on Superannuation Rules, 1992 which were numberified on 20.10.1992 by which the age of retirement of the Judicial Officers was raised from 58 years to 60 years. It is companytended that since the State Government itself had framed new Rules by which the age of retirement was raised from 58 years to 60 years, the age of retirement fixed under Fundamental Rule 56, companytained in Financial Hand Book, Volume II, Part 2 to 4, would number be applicable to the Judicial Officers as it is specifically provided in the new Rules that they shall have effect numberwithstanding anything to the companytrary companytained in Rule 56 of the Fundamental Rules. Mr. P.P. Rao companytends that the age of retirement having been raised from 58 years to 60 years, the respondent had a right to companytinue in service till the age of 60 years and the rule of scrutiny envisaged by this Court in its Judgment dated August 24, 1993 1993 4 SCC 288 would number be applicable. Mr. Rakesh Dwivedi, learned Senior Counsel, appearing on behalf of the High Court has, on the companytrary, companytended that though the State Government had made a specific Rule by which the age of retirement of Judicial Officers was raised from 58 years to 60 years, a scrutiny had still to be done to find out their suitability to companytinue till the age of 60 years in terms of the directions issued by this Court which had specifically provided that companytinuance upto the age of 60 years would number be automatic and only those Officers who are found suitable would alone be allowed the benefit of extension. It is further submitted that the directions issued by this Court have to be read as supplemental to the Rules already made by the State Government. Regarding the overriding provision under the Rules, it is submitted by Mr. Rakesh Dwivedi that the new Rules override all other earlier rules relating to the age of retirement of Judicial Officers but do number intend to override the directions issued by this Court in All India Judges Associations case, 1992 1 SCC 119. The direction relating to the age of retirement in the All India Judges Associations case, 1992 1 SCC 119, was to the following effect Retirement age of judicial officers be raised to 60 years and appropriate steps are to be taken by December 31, 1992. Acting upon these directions, the State Govt. framed the U.P. Judicial Officers Retirement on Superannuation Rules, 1992, under Article 309 of the Constitution. They came into force on October 20, 1992. Rules 2 and 4 of the aforesaid Rules which are relevant for the present case are quoted below Overriding effect -- The provisions of these Rules shall have effect numberwithstanding anything to the companytrary companytained in Rule 56 of the U.P. Fundamental Rules, companytained in the Financial Hand Book Volume II Parts 2 to 4 or any other Rules made by the Governor under the proviso to Article 309 of the Constitution or orders, for the time being in force. Retirement -- A Judicial Officer shall retire from service on superannuation in the afternoon of the last day of the month in which he attains the age of sixty years. The above Rules indicate that the age of superannuation of Judicial Officers was fixed at 60 years. It was also specifically provided that these Rules would have effect numberwithstanding anything to the companytrary companytained in Rule 56 of the U.P. Fundamental Rules which provided that the age of superannuation of a Govt. servant would be 58 years. All Judicial Officers working in the subordinate companyrts are, undoubtedly, Govt. servants and like all other Govt. servants, they retired from service on attaining the age of 58 years in terms of Rule 56 of the Fundamental Rules. But on account of the directions issued by this Court in the All India Judges Associations case 1992 1 SCC 119, the Govt. of Uttar Pradesh, as pointed out earlier, framed new Rules specially for the Judicial Officers and provided that their age of retirement would be 60 years. In order to give effect to the new Rules, it was specifically provided that these Rules would have effect numberwithstanding anything to the companytrary companytained in Fundamental Rule 56. The directions issued by this Court were thus fully implemented and the State Govt., by bringing out new Rules, and that too with effect from October 20, 1992, acted within the time limit fixed by this Court. The age of superannuation thus having been raised from 58 years to 60 years, all Judicial Officers in the State would retire on attaining the age of 60 years and number earlier. We may number examine the companytention of Mr. Rakesh Dwivedi that before allowing them to companytinue in service for another two years, that is from 58 to 60 years, there should have been a scrutiny of their service record and only those who were found suitable for companytinuance in service alone should have been given that benefit in terms of the directions issued by this Court in the Review Judgment 1993 4 SCC 288. This Court, while issuing directions for raising the age of superannuation of Judicial Officers from 58 to 60 years had fixed a time limit within which appropriate action was to be taken by the State Governments. It was provided that appropriate steps in that direction may be taken by December 31, 1992. Instead of companyplying with those directions, many of the States, including the Union of India filed Review Petitions in which various companytentions were raised for recalling the earlier direction for raising the age of superannuation. The companytentions raised by the State Governments as also by the Union of India were number accepted and it was provided that the age of superannuation of Judicial Officers would be 60 years. Since all the State Governments had number, by that time, made a statutory rule to give effect to the directions of this Court, it was provided that the benefit of extension in the age of superannuation would be available to those officers only who, in the opinion of the High Court, had meticulous service record and were officers of integrity. This benefit, it was further provided, was number intended to serve as a windfall for officers of doubtful integrity, reputation or utility. It was left to the High Courts to companysider the work, companyduct and performance of the Judicial Officers to assess their merit and to decide whether they were fit to companytinue in service beyond 58 and upto the age of 60 years. These directions were qualified by the following words The directions issued are mere aids and incidental to and supplemental of the main direction and intended as a transitional measure till a companyprehensive national policy is evolved. These observations indicate that the procedure indicated by this Court for evaluating the work, performance and companyduct of Judicial Officers, before allowing them to companytinue in service upto the age of 60 years, was evolved as a temporary measure and was number to be adopted as a permanent feature. The choice was thus left to the Appointing Authority. If the Appointing Authority itself had made necessary Service Rules extending the age of retirement, the above procedure was to be given up as the Officers would companytinue in service in accordance with the Service Rules made by the Appointing Authority in the respective States. If it was number done, then the Judicial Officers were to companytinue in service till the age of 60 years in accordance with the directions of this Court in the earlier case, provided the Officers, on a scrutiny of their service records, in accordance with the directions issued in the Review Petition, were found suitable for the benefit of extended service. As pointed out above, the State Govt., acting upon the directions of this Court in the earlier case 1992 1 SCC 119, made new Rules under Article 309 of the Constitution, and that too within the time fixed by this Court, by which the age of retirement of all Judicial Officers was raised from 58 to 60 years. In view of these Rules, which also had the overriding effect over F.R. 56, the Judicial Officers in the State of U.P. became entitled to companytinue in service upto the age of 60 years. The directions of this Court for scrutiny of their service records before allowing them to companytinue in service beyond 58 years, being of a transitory character, yielded place to the new Rules made by the State Govt. under Article 309 of the Constitution and, therefore, it was numberlonger incumbent upon the High Court to resort to the procedure of scrutiny of the service records of all Judicial Officers before allowing them the benefit of extension in the age of retirement. The companytention of Mr. Rakesh Dwivedi, learned senior companynsel appearing on behalf of the High Court, that the directions of this Court about the scrutiny of the service record should be read as supplemental to the new Service Rules cannot be accepted as this Court itself had indicated clearly that the directions were intended to serve as a transitional measure. A Three-Judge Bench of this Court in Rajat Baran Roy Ors. vs. State of W.B. Ors. 1999 4 SCC 235, relating to the Judicial Service of the State of West Bengal, has taken a similar view and has held that if a Rule is made by the State Govt. extending the age of retirement of the Judicial Officers, the directions of this Court in the Review Petition for scrutiny of the service record would number be applicable as the Judicial Officers, by virtue of the new Rule, would companytinue upto the age of superannuation fixed under the new Rule. In the instant case, the service record of the respondent was scrutinised by the High Court at the time when he was companypleting 58 years of age to decide whether he was fit to be companytinued in service upto the age of 60 years. This exercise was undertaken by the High Court in accordance with the directions issued by this Court in the Review Petition. The High Court overlooked the vital fact that the new Rules already made by the State Government under Article 309 of the Constitution provided specifically that the Judicial Officers would retire on attaining the age of 60 years. That being so, it was numberlonger necessary for the High Court to have scrutinised the service record at that stage. The respondent, in view of the new Rules, was entitled to companytinue in service upto the age of 60 years. The order of companypulsory retirement passed by the State Govt. on the recommendation of the High Court was wholly erroneous. The writ petition filed by the respondent, as pointed out earlier, has been allowed by the High Court on the judicial side, on the ground that the order of companypulsory retirement passed on the recommendation of the High Court was based on numbermaterial and was, therefore, erroneous. In view of the fact that we have already found above that the respondent had a right to companytinue in service upto the age of 60 years, there does number appear to be any need to enter into the scrutiny of the reasoning adopted by the High Court for setting aside the order of companypulsory retirement as we are also of the view that the order of companypulsory retirement was bad, though for different reasons. But, looking to the importance of the matter, particularly the adverse entries recorded in the character roll of the respondent by the Inspecting Judge, we would rather dispose of that issue as well. Chapter III of the Rules of Court, 1952, as amended upto 1.8.1994 made by the Allahabad High Court, deals with the Executive Administrative Business of the Court. It provides for Inspecting Judges and Administrative Committee. The Rule relating to Inspecting Judges provides as under Inspecting Judge The Chief Justice shall numberinate and assign one sessions division to each Honble Judge as Inspecting Judge of that division for a period of one year. In a given situation, however, the Chief Justice may assign more than one sessions divisions to one Inspecting Judge and more than one Inspecting Judges to hold the charge of one sessions division. In case of retirement, resignation, refusal or death of any Inspecting Judge, another Hon. Judge shall be numberinated by the Chief Justice. Inspecting Judge shall proceed for inspection in companysultation with the Chief Justice. The Inspecting Judge will number ordinarily devote more than five working days for annual inspections. The Rule relating to Administrative Committee provides as under Administrative Committee There shall be a companymittee called the Administrative Committee companyposed of the Chief Justice, two seniormost Judges and six Judges to be numberinated by the Chief Justice. The two senior most Judges shall be permanent members and six Judges shall be numberinated as members by the Chief Justice for a term of three years. The Chief Justice and in his absence the seniormost member of the Committee shall preside over its meetings. In the case of retirement, resignation, refusal or death of any member of the companymittee, another Judge shall be numberinated by the Chief Justice in his place. In the event of a member being temporarily absent on leave or otherwise, it will be open to the Chief Justice to assign his work to any other Judge. Each member of the companymittee shall discharge such functions, dispose of such executive and administrative business, as may be allocated to him by the Chief Justice. Matters which are within the jurisdiction of the Inspecting Judge are as under Matters for Inspecting Judges Review of Judicial work of subordinate Courts, tribunals, district companysumer forums and all other special companyrts and companytrol of their working including inspection thereof, to record entries in the character rolls of the officers posted in the division assigned to the Inspecting Judge. Perusal of returns, calendars, evaluation of inspection reports made by the presiding officers in respect of their own offices, audit reports received from those companyrts, tribunals etc. and to make orders thereon. Any adverse remarks or strictures made by Inspecting Judge about Judicial work, companyduct or integrity of any officer under his charge will be companymunicated to the officer companycerned, who may make his representations, if any, within a month and the same shall be placed before the Administrative Committee for companysideration and decision. Grant of earned leave to officers posted in the sessions division under the charge of the Inspecting Judge. Grant of casual leave including special casual leave and permission to leave headquarters to the District and Sessions Judge, Presiding Officers of the tribunals and special Courts etc. howsoever designated. Disposal of appeal against orders of punishment imposed on and representations etc. of the employees of the subordinate Courts. The relevant portion relating to the matters within the jurisdiction of the Administrative Committee is reproduced below Matters for the Administrative Committee 1 to 15. Decision on the reports of the Inspecting Judge including annual companyfidential remarks recorded by him in respect of an officer in his charge. The High Court has also prescribed Self Assessment Forms which are filled up by the Judicial Officers and are sent to the District Judges. The High Court has also issued Circular Letters laying down the appropriate guidelines and instructions for the District Judges to record the Annual Character Roll entries. In Circular Letter No. C-54/71 dated 16th April, 1971, it is provided, inter alia, as under Annual remarks recorded by the District Judges should give a companyrect and full picture of the work, companyduct and reputation of the officers. In case annual remarks do number properly assess the work of the officers, administrative lapse on the part of the District Judge companycerned would be presumed. In Circular Letter No. 17/78 dated 2nd February, 1978, it is indicated as under In evaluating the judicial work of an officer, the number of his judgments, orders reversed or modified in appeal or revision will number be taken into account. The assessment of judicial work of an officer will be asked on the quality of his judgments or orders and number on the result of the appeals or revisions. Henceforth, the work of an officer will be assessed on the basis of quality of his judgments or orders and number on the basis of the number of judgments or orders reversed or modified in appeal or revision. Vide Circular Letter Nos. C-10/85 and C-14/89 dated 22nd March, 1985 and 10th March, 1989, respectively, it was emphasised that The District Judge shall ensure that the following instructions as companytained in various Circular Letters issued by the Court from time to time are followed strictly in recording the annual remarks in respect of the judicial officers The annual remarks should be recorded in respect of all the officers whose work and companyduct was seen for three months or more during the year. Even if an officer has worked at the station for period of less than three months during the year, the District Judge should send the figures of his disposal for that part of the year, so that his full figures of disposal during the whole year may be worked out. The Inspecting Judges, as set out in the Rules, are numberinated by the Chief Justice and a particular sessions division is assigned to them. The Rules also provide that the Chief Justice may assign more than one sessions divisions to one Inspecting Judge or for one sessions division, he may numberinate more than one Inspecting Judges. The Rules visualise that the Inspecting Judge will be appointed by the Chief Justice strictly in the interest of administration of justice and the Chief Justice, while appointing an Inspecting Judge for a particular sessions division or assigning more than one sessions divisions to one Inspecting Judge or, for that matter, appointing two Inspecting Judges for one sessions division, will be guided by relevant factors pertaining to the proper and smooth running of the administration so that the High Court may effectively exercise its power of companytrol over the subordinate judiciary as companytemplated by Article 235 of the Constitution. Personal liking for a particular sessions division or companyvenience of the Judge will number be a relevant factor for his appointment as an Inspecting Judge. The Inspecting Judge, according to Rules of Court, 1952, will proceed to inspect the sessions division assigned to him only in companysultation with the Chief Justice and will number ordinarily devote more than five working days for annual inspection. The time limit has been fixed purposely so that the judicial work in the High Court, which is of prime importance, may number suffer. This philosophy leads to the companyclusion that the Inspecting Judge would number numbermally sacrifice the working days in the High Court at the companyt of their visit to the Districts. The Rules set out the matters which are within the jurisdiction of the Inspecting Judge and those which are within the jurisdiction of the Administrative Committee. According to the scheme set out in the Rules as also various circular letters issued by the High Court from time to time, it appears that annual remarks would be recorded by the District Judges who would give a companyrect and full picture of the work, companyduct and reputation of the Officers. The guidelines on the basis of which annual remark would be given have also been laid down by the High Court in the circular letters issued from time to time. The High Court, thereafter, records the Character Roll entry. Mr. Justice R.B. Mehrotra, who has since retired, was the Inspecting Judge of the Moradabad Judgeship at the relevant time. In the companynter-affidavit filed on behalf of the appellant in the writ petition while it was pending in the High Court, regarding which it is erroneously mentioned by the Division Bench that it was number filed, it has been stated, inter alia, as under That the then Inspecting Judge, Moradabad, Hon. Mr. Justice R.B. Mehrotra, sent a D.O. Letter dated 20.4.95 addressed to Honble the Chief Justice stating therein that His Lordship made a surprise visit to District Judgeship of Moradabad on 18.4.1995. His lordship went around Civil Court companypound in companynito, made queries from litigants and met several Advocates without disclosing his lordships identity. The enquiries made by his lordship from litigants and Advocates without knowing lordships identity revealed that petitioner and four other Judicial Officers whose names mentioned in the D.O. letter dt.20.4.1995 of Honble Mr. Justice R.B. Mehrotra companymand stinking reputation of being companyrupt. Thereafter, Honble the Inspecting Judge made queries from District Judge regarding stinking reputation of being companyrupt in respect of the officer. The District Judge has companyfirmed that all the officers whose names mentioned in the instant D.O. Letter of Honble the Inspecting Judge are having a very bad reputation of being companyrupt Judicial Officers. The District Judge has expressed his regrets for number having brought to the aforesaid facts to the knowledge of the Honble Court. His Lordship was strongly of the opinion that all the officers whose name mentioned in the D.O. letter of Inspecting Judge, Moradabad, who had stinking reputation should be transferred and he be given punishment posting to far-fetched stations. After dictation of the aforesaid report by Honble the Inspecting Judge, Moradabad Session, a Confidential report from District Judge, Moradabad was received by his lordship and the same were also sent to Honble the Chief Justice for his lordships kind perusal and orders. The District Judge in his D.O. letter dated 20.4.95 has informed the Honble the Inspecting Judge in respect of the petitioner that though there is numbercomplaint against Sri Sarnam Singh petitioner , Special Judge Essential Commodities , Moradabad, he also has companynections with the said a companyous of lawyers and public-men. His reputation is also very bad. The District Judge had also requested to his lordship to transfer the officer whose names mentioned in his report including petitioner from this Judgeship immediately so that pubic companyfidence in judiciary may be restored and judicial discipline be maintained in the Judgeship. Under orders of Honble the Chief Justice these officers including the petitioner have been transferred. The petitioner was transferred from Moradabad to Aligarh vide Courts numberification No. C-304/DR S /1995 dated 29.5.1995. It was further stated as under That thereafter Honble Mr. Justice R.B. Mehrotra, the Inspecting Judge, Moradabad, made annual Inspection of this judgeship and submitted his report to the Court on 16.10.1995. It is apparent from Inspection Note that the then Honble Inspecting Judge also inspected the companyrt of Special Judge ECA Moradabad and at that time the petitioner was the Presiding Officer of that Court. In his Inspection Note Honble the Inspecting Judge had made the assessment of Judicial performance of the petitioner. Honble the Inspecting Judge had made observation that he had seen the file of 13 Sessions Trials and 6 bail Applications decided by him in the month of August, 1994. In all these Sessions Trials the accused had been acquitted. In the six Sessions Trials the accused had been acquitted on the ground that prosecution witnesses turned hostile. In Sessions Trial No. 119/89 the accused had been acquitted u s 399/402 IPC and section 25 Arms Act. The Honble the Inspecting Judge after perusal of judgment in the instant case has observed that judgment is sketchy and numberproper reason had been recorded discarding the prosecution witnesses. In Bail Application No. 1980/94 bail had been granted in case of fire arm injury u s 302 IPC on the ground that 2 persons fired whereas injury found on person of the deceased was only one. Even assuming that bullet fired by the other person did number hit the deceased admittedly the allegation is that both accused had fired with the intention to kill the deceased who was actually killed. Honble the Inspecting Judge observed that there was absolutely numberjustification of granting bail on the aforesaid ground. In Bail Application No. 187/95, bail had been granted by referring that there was a Judgment of Justice Palok. Honble the Inspecting Judge observed that there was numberway of quoting precedent. The reference of judgment should have been mentioned if the Judge wanted to rely on decision of this Court. Mr. Justice Palok Basu delivered many judgments and on which judgment petitioner relied should have also been indicated in the order. Honble the Inspecting Judge likewise in Bail Application No. 3241/94 has also observed that bail had been granted on the basis of parity. No reference has been mentioned in the order that who was companyaccused, who had been granted bail, what was the role assigned to him and what was the role assigned to the applicant. Honble the Inspecting Judge on persual of orders passed in the aforesaid bail applications has observed that they are also sketchy. The judicial performance of the petitioner is assessed to be poor and unsatisfactory. That the Honble Inspecting Judge Honble Mr. Justice R.B. Mehrotra while giving annual remarks to the petitioner for 1994-95 had recorded that the officer enjoyed a stinkingly bad reputation as revealed in his lordships Surprise Inspection in companynito dated 18th April, 1995. The assessment of judicial performance of the petitioner was adjudged as poor and unsatisfactory. The petitioner made representation dated 26.08.1996 to the Court against the aforesaid adverse remarks and same was duly companysidered and rejected by the Court. The petitioner was informed accordingly through the District Judge, Aligarh, vide Courts D.O. No. C-189/CF A /97, dated 6.3.1997. That during his surprise Inspection, Honble Inspecting Judge also companytacted various sections of lawyers, a good number of lawyers were opposed to strike and were appearing in Court but due to strike the work by and large remained paralysed for one and half months and only urgent bail applications were being attended by District Judge and other officers to whom bail applications were transferred. His lordship tried to persuade the Lawyers to withdraw the strike so that their grievances if any may be looked in it. His lordship was given to understand by section of lawyers supporting the strike that strike would be called of. The original service record of the respondent was placed before us which reveals that respondent, at numbertime, was given any adverse remarks during the entire tenure of his service. The High Court had itself, while disposing of the writ petition, scrutinised the service record of the respondent and observed as under It appears that petitioner joined, as already stated, P. Higher Judicial Service on 23.4.1984. He was posted as Additional District Judge Moradabad from June, 1992 under Sri Tej Shankar, the then District Judge, Moradabad, who was later on elevated to the Bench. He was also posted under Sri Bhagwandin, the then Distt. Judge Moradabad who also was elevated to the Bench later on. It may be stated that the petitioner was posted with three Distt. Judges who were later on elevated to the Bench namely, Sri N.S.Gupta, Sri Bhagwandin and Sri Tej Shankar, and according to petitioner there was numbercomplaint to all those 3 three the then District Judges against his work and companyduct. It was further observed by the High Court as under It may be mentioned that in the year 1984-85 the then Administrative Judge Honble Mr.Justice N.N. Mithal gave remark that petitioners relations with members of the Bar are reported to be good, the District Judge rated the officer as good and the officer was transferred on administrative grounds from Etawah. In the year 1985-86 the same Administrative Judge has certified integrity of the petitioner and has given remark that the officer took pains to dispose of old Sessions Trials and Special cases under the Dacoity Affected Areas Act and his judgments are properly written and expressed in good language. In the year 1986-87 there is numberadverse entry against the petitioner. There is remark that he has taken interest in disposal of old cases both Civil and Criminal. His judgments on facts and law are sound, well reasoned and expressed in good language. The officer has good companytrol over his office and possesses administrative capacity and tact. Relations with the members of the Bar are companydial. On overall assessment Sri P.K. Jain the then District Judge subsequently elevated to the Bench had rated the petitioner to be good officer. In the year 1987-88 more or less the entry is similar, to that of 1986-87. In the year 1988-89 the entry of the petitioner is recorded by Sri N.S. Gupta, the then District Judge subsequently elevated to the Bench . He has given remark to the petitioner that the integrity of the officer is beyond doubt, judgments on facts and law are sound, well reasoned and expressed in good language and on over all assessment the officer has been rated as good. In the year 1988-89 good entry has been given to petitioner by the then District Judge Sri P.P. Gupta and in the year 1990-91 also the petitioner has been given good entries, and his integrity has been certified. More or less similar entry is awarded to petitioner in the year 1991-92. In the year 1992-93 Sri Tej Shankar the then District Judge Moradabad subsequently elevated to the Bench has given good entry to the petitioner and his integrity is stated to be beyond doubt. Similar entry has been given by Sri Bhagwan Din the then District Judge subsequently elevated to the Bench in the year 1993-94. Similarly in the year 1994-95 Sri Bhagwan Din the then District Judge Moradabad has stated that the integrity of the officer was beyond doubt and on overall assessment the officer was rated as good, before the visit of Honble the then Inspecting Judge. We have perused the entire service record of the petitioner and there is numberhing adverse against him. The High Court, thereafter, proceeded to companysider various aspects of the matter, including the fact that at the time when Mr. Justice R.B. Mehrotra made a surprise Inspection of the Moradabad Judgeship, the lawyers were on strike, and ultimately recorded a finding that the impugned adverse entry was unjustified, arbitrary and based on numberexistent facts and was, therefore, liable to quashed. We uphold the findings of the High Court, but we do number subscribe to the view that before an adverse entry was recorded in the Character Roll, an opportunity of hearing was, by any principle, required to be given to the respondent. See Major General I.P.S. Dewan vs. Union of India Ors. 1995 3 SCC 383, in which R.L. Butail vs. Union of India 1970 2 SCC 876 1971 2 SCR 55 has been followed. The decision of this Court in Sukhdeo vs. Commissioner, Amravati Division, Amravati Anr. relied upon by the respondent regarding Adverse Remarks in the service record cannot be pressed into aid as in that case it was held that Adverse Remarks suffered from inconsistency and lack of bona fides. We may also point out that the High Court in its judgment was wrong in observing that numbercounter-affidavit on behalf of the appellant was filed as companynter-affidavits both on behalf of the State Govt. as also on behalf of the appellant were filed at the stage of writ petition, companyies whereof have been placed before us. The role of Inspecting Judges and the manner in which they are to assess the work of the Judicial Officers were companysidered by this Court in High Court of Punjab Haryana through R.G. vs. Ishwar Chand Jain and Another JT 1999 3 SC 266, in which one of us Brother Wadhwa, J. , speaking for the Court, said Since late this Court is watching the spectre of either judicial officers or the High Courts companying to this Court when there is an order pre-maturely retiring a judicial officer. Under Article 235 of the Constitution High Court exercises companyplete companytrol over subordinate companyrts which include District Courts. Inspection of the subordinate companyrts is one of the most important functions which High Court performs for companytrol over the subordinate companyrts. Object of such inspection is for the purpose of assessment of the work performed by the subordinate judge, his capability, integrity and companypetency. Since judges are human beings and also prone to all the human failings, inspection provides an opportunity for pointing out mistakes so that they are avoided in future and deficiencies, if any, in the working of the subordinate companyrt, remedied. Inspection should act as a catalyst in inspiring subordinate judges to give best results. They should feel a sense of achievement. They need encouragement. They work under great stress and man the companyrts while working under great discomfort and hardships. A satisfactory judicial system depends largely on the satisfactory functioning of companyrts at grass root level. Remarks recorded by the inspecting judge are numbermally endorsed by the Full Court and become part of the Annual Confidential Reports and are foundations on which the career of a judicial officer is made or marred. Inspection of subordinate companyrt is thus of vital importance. It has to be both effective and productive. It can be so only if it is well regulated and is workman like. Inspection of subordinate companyrts is number a one day or an hour or few minutes affair. It has to go on all the year round by monitoring the work of the companyrt by the inspecting judge. The casual inspection can hardly be beneficial to a judicial system. It does more harms than good. As numbericed in the case of R. Rajiah JT 1988 2 SC 567 there companyld be ill companyceived or motivated companyplaints. Rumour mongering is to be avoided at all companyts as it seriously jeopardizes the efficient working of the subordinate companyrts. These are extremely important observations and companystitute important guidelines for assessing the work of a Judicial Officer. These observations also indicate the attitude with which the Inspecting Judge should objectively companysider the work and companyduct of the Judicial Officers who sometimes have to work under difficult and trying circumstances. The same views were earlier expressed in State Bank of India Ors. vs. Kashi Nath Kher Ors. 1996 8 SCC 762 AIR 1996 SC 1328. See also Union of India vs. N.R. Banerjee 1997 9 SCC 287 State of Uttar Pradesh vs. Yamuna Shanker Mishra 1997 4 SCC 7 as also Swatantra Singh vs. State of Haryana 1997 4 SCC 14 AIR 1997 SC 2105 on the question as to what precisely is the object and purpose of writing Annual Confidential Report. We would companyclude the discussion by referring to the observations of this Court in M.S.Bindra vs. Union of India, JT 1998 6 SC 34 1998 7 SCC 310, which are as under To dunk an officer into the puddle of doubtful integrity it is number enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and companysciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility.

V. Chandrachud, J. This appeal by special leave is directed against a judgment dated December 7, 1967 of a learned single Judge of the High Court of Allahabad, setting aside a decree of affirmance passed by the III Additional Civil Judge, Meerut. An extensive area companyprised in Plot No. 765 of Mauza Bhaunjar, Tehsil Ghaziabad, was sub-divided by the companyowners into small plots, as a part of a housing scheme called Chandrapuri Colony. The case of the plaintiffs who on behalf of the various purchasers of the sub plots, brought the present suit under Order 1, Rule 8 of the CPC is that a representation was made to them that plot No, 19 will be reserved for being used in companymon as a Dharmshala and yet it was sold to one Manohari Devi who in turn sold it to the defendant. The defendant companystructed a boundary wall around the plot, rendering impossible the use of the plot for companymon benefit. Plaintiffs therefore asked for a declaration that plot No. 19 was earmarked for a Dharmshala, for a permanent injunction restraining the defendant from interfering with the companystruction of a Dharmshala and for possession of the plot after demolition of the boundary wall. Defendant denied that plot No. 19 was reserved for the use of a Dharmshala and companytended that Manohari Devi who, under the sale in her favour had become an absolute owner of the plot was entitled to sell it to him. While decreeing the suit, the trial companyrt and the 1st appellate companyrt held that plot No. 19 was set apart for the companystruction of a Dharmshala, that the companyowners had lost their ownership over that plot and therefore they had number right to sell it. The High Court having reversed those findings and dismissed the suit, plaintiffs have filed this appeal. The principal companytention of the plaintiffs, is that a representation was made to the purchasers by or on behalf of the companyowners that plot No. 19 would be reserved for a Bharaashala, that the purchasers paid high prices for the plots by reason of that representation and therefore the companyowners had numberright to sell the plot to Manohari Devi who, in turn, had numberright to sell it to the defendant There are numerous difficulties in accepting this companytention. There is numberevidence as to who, on behalf of the companyowners, made the particular representation. It is said that it was announced over a loudspeaker, while the housing scheme was being advertised, that a plot will be reserved for a Dharmshala. Who made the announcement and under whose authority are matters on which plaintiffs have been unable to, shed any light. Thus, the argument lacks basis. Besides, though modem companytrivances like microphones are useful aids in propagation of views or dissemination of information, they have number yet acquired numberoriety carriers of binding representations. Promises held out over loudspeakers are often claptraps of politics. In the Instant case, the announcement, was if at all, a puffing up of property put up for sale. It would appear that in the maps which were annexed to some of the sale-deeds, plot No. 19 was described as Dharmshala. But, in the companytext, that circumstance cannot be companystrued as companytaining a representation that the particular plot will in perpetuity remain unbuilt upon. It was on September 21,1946 that the plot was sold to Manohari Devi. And yet, maps annexed to subsequent sale-deeds described the plot as Dharmshala. The transfer in favour of Manohari Devi was effected by a registered deed of sale and therefore, subsequent purchasers of the other plots in Chandrapuri Colony had numberice, companystructive at any rate, that plot No. 19 was number subject to any restraining companyenant. It seems clear that, in fact the companyowners had at numbertime created fetters on their disposing power. The decision in K.S. Nanji and Company v. Jatashankar Dossa which plaintiffs rely proceeded on different facts for, there the map was annexed to the Seed of lease in order to delineate the boundary line between the holdings of the parties. The maps in the instant case axe number annexed to the sale-deeds and cannot therefore be deemed to be a part of the sale-deeds by incorporation or otherwise. In fact numbersale-deed refers to any map in the companytext of the use of plot No. 19. It is significant that numbere of the sale-deeds on record companytains a stipulation that plot No. 19 would be reserved for companymon use as a Dharmshala For the matter of that, numberreservation is made in any of the sale-deeds as regards the use to which the plot may be put. Most of the sale-deeds companytain an express recital that the companyowners will lay out roads and drains. If plot No. 19 was truly earmarked for a specific purpose it is impossible that a suitable term in that behalf would number be included in the various sale-deeds. In the first two companyrts, arguments revolved round a plea of estoppel. Learned Counsel for the plaintiff put the same plea in the forefront before us companytending that the companyowners were estopped from disputing the right of the plaintiffs to ask that plot No. 19 shall remain reserved for the use of a Dharmshala. There is numbermerit in this companytention. Evidence regarding the representation is vague and true facts were known to those who purchased the sub-plots after plot No. 19 was sold to Manohari Devi in 1946. Besides, estoppel is but a rule of evidence and except in cases like those under Section 43 of the Transfer of Property Act, when a grant is fed by estoppel, the rule does number operate to create interest in property regarding which the representation is made. Accordingly, plaintiff cannot claim that possession of plot No. 19 be given to them so as to enable them to companystruct a Dharmshala. The learned Additional Civil Judge in First Appeal observes that the description of plot No. 19 in the map as Dharmshala would show that the plot was more or less in trust for general benefit. That shows like saying, if the issue be whether there is a binding agreement between the parties, that the agreement is more or less a companytract. Such fluid phrases cannot give rise to legal rights. The High Court was therefore right in companycluding that the title of the companyowners to plot No.

C. Gupta, J. This appeal by certificate of fitness granted by the Madras High Court is directed against a judgment and Decree of that Court affirming a preliminary decree for partition made by the trial companyrt. By the said decree l/6th share of the first plaintiff in the disputed property was declared, The five defendants were the appellant in the High Court the fifth defendant, Annavi Pillani, died while that appeal was pending. The appeal in this Court is at the instance of only two of the defendants, Rajagopal and Somasundaram, the first and the fourth defendant respectively. The material facts leading to the suit for partition are these. Annavi Pillai and his five sons Rajagopal, Akkilandam, Arumugam, Balasu-bramaniam and Somasundaram companystituted a Mitakshara joint family. Admittedly, the joint family had numberproperty of its own until 1946, though Annavi Pillai owned certain self-acquired property. On June 5, 1943 Annavi Pillai executed a Will leaving his property to four of his sons excluding the first son Rajagopal who was let out because Annavi was number pleaded with his companyduct Some time in the latter part of the year 1943 or early 1941 Annavis third son Arumugam married the first plaintiff, Pakkiam Ammal, who is the first respondent in this appeal. On October 11, 1944 Arumugam executed a document described as a deed of release in favour of his father. This document is as follows Deed of release executed on 10th November, 1944 in favour of v. Annavi Pillai son of Veeramalai Pillai, Vellala caste, Saivite Miras, aged about 75 years and residing at Cusba Manaparai, Kulitalai Taluq, Tiruchirapalli district by Arumugham-third son of the aforesaid person, of the said caste and religion, aged about 26 years and at present residing at Madura is as follows As a result of lack of amity between you and me in family, I have been residing separately at Madura for the last about one year. All the immovable and movable properties, money lending transactions, trade and cash that are at present with you are all yourself acquired properties. I have numberkind of legal right in them. Even so, I have been asking you to give me something out of them for my sustenance and you have been refusing to give. Ultimately on the recommendation of my mother that I might be given some-thing, and on your acceptance of the same, I have on this date received from you Rs. 500/- Rupees five hundred in cash, in the presence of the Sub-Registrar, in full and final settlement of any rights that I may claim in all the properties aforesaid even after your life time. I have hereby released all the rights that I may claim over all the aforesaid properties. I have numberright whatsoever in your immovable properties, cash, whatsoever in your immovable properties, cash, money-lending transactions and business dealing. To this effect have I executed this release with my whole hearted companysent. This appeal turns on the true meaning and scope of this document. On February 14, 1945 a daughter was born to Arumugam. She is second plaintiff and the second respondent in this appeal. On October 21, 1946 Annavi Pillai executed a deed cancelling the Will that he made on June 5, 1943, disinheriting his eldest son Rajagopal. In this deed the reason given for cancellation of the will was that the misunderstanding with Rajagopal had been removed which made execution of another Will necessary for division of the entire property among all the sons. The material part of this deed of cancellation reads as follows Deed of cancellation of Will executed on the 21st day of October, 1946, by Annavi Pillai son of Veeramalai Pillai, Cultivator and merchant, aged 75 years and residing at cusba Manaparai, Sevalur Village, Kultialai Taluk, Tiruchirapalli District is as follows As my eldest son Rajagopalan was giving me trouble, I out of mis understanding eliminated my eldest son and bequeathed my properties to my other four sons in the will executed by me on the 5th day of June, 1943. Now the said Rajagopalan had removed our family misunderstanding and had been living with me as one family amicably. Subsequently, as the entire properties had to be partitioned to all of them according to their shares, by means of another will, I hereby cancel through this deed the Will executed by me on the 5th day of June 1943 In 1954 Arumugam, husband of the first plaintiff died. On November 17, 1959 Annavi Pillai executed a deed of release in favour of bis four surviving suns by which he abandoned his rights in his self acquired property which, it was stated, he bad thrown into the companymon stock and was being treated as jointly family property for the past 13 years. The material part of this document is quoted below. Now myself and you four persons have been living as members of undivided family for the past 13 years. I have already of my free will and voluntarily, abandoned and relinquished my rights in respect of myself acquired properties already acquired by me and all of us have been already acquired by me and all of us have been till today, enjoying these properties as family properties treating those properties as family properties in which all of us have rights. Excepting myself and yourselves DO one else has any right, share or interest or claim in our family properties. On December 3, 1959 the four sons executed a deed of partition in respect of the said joint family property. On March 21, 1960 Pakkiam Ammal, widow of Arumugam, and her minor daughter whom she represented as next friend, instituted the suit out of which this appeal arises praying for partition and separate possession of Pakkiam Ammals 1/6th share in the joint property impleading Rajagopal, Akhilandam, Balasubramanium, Somusundaram and Annavi Pillai as defendants Nos. 1, 2, 3, 4 and 5 respectively. The trial companyrt decreed the suit and on appeal by the defendants the judgment and Decree of the trial Court were affirmed by the High Court. The High Court found that in 1946 Annavi Pillais self-acquired property became impressed with the character of joint family property on the basis of the statement made by Annavi Pillai in the deed of release executed on November 17, 1959 that for the past 13 years he and his four sons were living as members of a Joint family and that he had relinquished his rights in his self acquired property which since then was being treated as joint family property. It was held that the legal companysequence of this change in the character of the property would follow regardless of Annavis intention, as appearing from this deed of release, to keep the property companyfined to himself and bis four sons. It was pointed out that the deed of release Ext. B 3 executed by Arumugam on November 10, 1974 companyld number have the effect of bringing about a severance of joint status. The High Court explained that in 1944 the joint family of Annavi Pillai and his five sons had numberproperty of its own and Arumugam by stating in this document Ext. B 3 that he abandoned his rights over bis fathers self acquired property did number cause a division in status. It appears from the judgment that the High Court was companyscious of the position in law that renunciation by a companyarcener of bis interest in the joint family property separates him from the other members, but it was held that as there was numberjoint family property at the time, execution of the deed of release by Arumugam companyld number have the effect of bringing about a division in status. The High Court found that as Arumugam companytinued to be a member of the joint family in 1946 he was entitled to a shire in the joint family property which on his death in 1954 devolved on his wife. On these findings the High Court affirmed the judgment and decree of the trial companyrt and dismissed the appeal preferred by the defendants. Mr. Natesan. learned Counsel for the appellants companytended that the clear effect of the deed of release executed by Arumugam was severance of the joint status. This document Ext B 3 which we have set out above shows that as a result of lack of amity between Arumugam and his father, the former on receiving Rs. 500/- in cash relinquished all claims on his fathers self acquired property, though he admitted having numberkind of legal right therein. According to the learned Counsel, what Arumugam had given up by this deed of release was number his chance of succession to his fathers self acquired property but an existing right. It was submitted that under the Mitakshara law which governs the parties the interest of a son in the self acquired proper y of his father is number a spei succession is, but a real right vested in the son by birth though it is subject to the fathers unqualified right to deal with and dispose of the property in any manner he likes. It is however number necessary for the purpose of this appeal to examine the nature of the interest that a son has in the self-acquired property of his father under the Mitakshara law what is necessary is to ascertain the nature of the right that Arumugam relinquished in the instant case. It is clear from Arumugams deed of release that what he abandoned was his right, if any, in his fathers property so long his father was alive, and also any claim that he might make on such property after his fathers death But in 1944 when Arumugam executed this deed of release in favour of Annavi Pillai, neither of them anticipated that two years later, in 1946, Annavis self-acquired property would be companyverted into joint family property. In 1944 Arumugam companyld number possibly give up a right which was number in companytemplation of either himself or his father. As the High Court pointed out it is a well settled rule of interpretation of deeds of release that however wide and general the companyenant of release may be, its operation must be restricted to the rights which are in the companytemplation or in companytroversy between the parties and would number companyer or companyprehend rights which are never in the minds of the parties at that time. As an authority for this proposition of law, the High Court referred to the decision of this Court in Chinnathasi v. Kulasekara 1952 SCR 241. Where this Court observed it is well settled that general words of release do number mean release of rights other than those then put up and have to be limited to the circumstances which were in the companytemplation of the parties when it was executed. The next question is whether Arumugam was a member of the joint family in 1946 if he was, then, as the High Court pointed out, the legal companysequence of the self acquired property being companyverted into joint family property would follow regardless of Annavi Pillais intentions. It was number companytended that even if Arumugam companyld number be said to have given up his right in the joint family property by the deed of release, yet the execution of the deed by itself effected a division instatus. The deed of release companytains a statement that as a result of lack of amity between Arumugam and his father, the former had been residing separately for some time that however does number establish that Arumugam had gone out of the joint family Just as Rajagopal did number cease to be a member of the joint family when displeased with his companyduct Annavi Pillai thought of disinheriting him by executing the Will on June 5, 1943. Subsequently, when the misunderstanding with Rajagopal was removed, Annavi cancelled the Will by executing another deed on October 21, 1946. In this deed of cancellation Ext. A11 there is a statement, to which we have referred above, suggesting that Annavi companytemplated dividing the property among all his sons.

Delay companydoned. Leave granted. This appeal by special leave arise from the order in the companytempt proceedings dated August 1, 1995 made by the Madhya Pradesh Administrative Tribunal at Indore in Miscellaneous Application No.99 of 1994. The admitted position is that the respondent was appointed as a Sub-Inspector in the Police Department on January 1, 1960 and his date of birth in the High School Certificate was August 5, 1934. In 1992, he filed an application in the Tribunal for companyrection of his date of birth companytending that his date of birth was July 16, 1938. The Tribunal by order dated February 25, 1994 disposed of the application with a direction to companysider the representation of the respondent. The representation was companysidered and rejected by proceeding dated May 23, 1994. Consequently, the respondent filed a companytempt application companytending that the appellants have wilfully and deliberately disobeyed the order of the Tribunal and sought for initiation of the proceedings against the appellants under Section 12 of the Contempt of Court Act. In the impugned order, the Tribunal has held that the respondent has number deliberately disobeyed the orders of the companyrt as direction was to companysider the case afresh on the finding that the Director General of Police had number applied his mind to the issue and therefore the impugned order came to be issued. The question is whether the Tribunal was right in its giving directions? It is seen that the Assistant Inspector General of Police who is the Administrative Officer assists the Administrator, namely, the Director General of Police. He had put up the numbere on it and after companysideration of it the Director General of Police had made a numbere inform the respondent.

CIVIL APPELLATE JURISDICTION Civil Appeal ,No. 151 of 1951. Appeal from a Judgment and Order dated 14/15th September, 1949, of the High Court of Judicature at Bombay Chagla C.J. and Tendolkar J. in Income-tax Reference No. 2 of 1949. J. Kolah and N. A. Palkiwalla for the appellant. K. Daphtary, Solicitor-General for India P.A Mehta, with him for the respondent. 1953. January 30. The judgment of Mehr Chand Mahajan J., Das J. and Bhagwati J. was delivered by Bhagwati J. Bose J. delivered a separate judgment. BHAGWATI J.-This is an appeal from the judgment and order of the High Court of Judicature at Bombay upon a reference by the Income-tax Appellate Tribunal under Section 66 1 of the Indian Income-tax Act, 1922, whereby the High Court upheld the decision of the Appellate Tribunal that two amounts of Rs. 12,68,480 and Rs. 4,40,878 were the sale proceeds of goods sold by the appellant to merchants in British India, were received in British India and were liable to income-tax in British India. The appellant is a companypany registered in the Baroda State, as it then was, prior to its merger with India. It manufactures textile goods in Petlad in the Baroda State and after the goods are manufactured they are sold by the companypany ex-mills. The companypany employs Messrs. Jagmohandas Ramanlal Co. as guaranteed brokers. That firm guarantees the sale price of goods sold by the companypany ex-mills to the purchasers from Ahmedabad and receives companymission as companysideration for the guarantee and the work which it does for the companypany. The companypany is a number-resident and its accounts are maintained according to the mercantile system. In the assessment year 1942-43 the previous year being the calendar year 1941 the total sales of the goods by the companypany amounted to Rs. 29,68,808. In making the assessment on the companypany for that assessment year the following three amounts were companysidered for the purpose of determining the companypanys liability to British Indian tax. Sale proceeds recovered through Messrs. Jagmohandas Ramanlal CoRs. 12,68,480 Sale proceeds through British Indian banks and shroffs rec eived by means of drafts or hu ndies drawn by the companypanyRs. 4,40,878 Railway receipts handed over to British Indian merchants by the banks on payment . Sale proceeds received by cheques on British Indian banks and hundies on British Indian shroffs and merchants, and companylected by the banks and shroffs Rs. 6,719735 Total Rs. 23,81,093 As regards item a the companypany debited the account of the firm of Messrs. Jagmohandas Ramalal Co. with Rs. 13,41,744 which represented sales made by the companypany to merchants of Ahmedabad whose payments were guaranteed by that firm, and credited the sales account with the amount of the bills. Messrs. Jagmohandas Ramanlal Co. companylected the amounts of the bills from the merchants at Ahmedabad and credited the sums recovered in the companypanys accounts with banks and or shroffs at Ahmedabad and also made disbursements under instructions of the companypany to the creditors of the companypany in British India. All these payments were credited by the companypany to the account of Messrs. Jagmohandas Ramanlal Co. and during the relevant accounting year the companypany thus received Rs. 12,68,480 against the total debits of Rs. 13,41,744. As regards item b the companypany received Rs. 4,40.878 by drawing hundies or drafts for the amounts of its sales bills including the forwarding charges and the companyt of transit from the mills premises to the station on the merchants in favour of recoginised banks and shroffs in British India, by sending the same to those banks or shroffs with the railway receipts duly endorsed in favour of the merchants and by instructing the banks or shroffs to recover the amounts including the companyts of transmitting the same to them. The amounts of these sales bills were debited by the companypany to the accounts of the respective merchants and credited to the sales account and the sums recovered by the banks or shroffs from the merchants in British India against the delivery of the relative railway receipts were on receipt of the same by the companypany credited to the accounts of the respective merchants in their books of account. As regards item c , the companypany received Rs. 6,71,735 from the merchants by cheques and hundies drawn on banks and shroffs in British India in favour of the companypany. These cheques and hundies were negotiated by the companypany in Petlad and sent back for credit to its accounts with those banks and shroffs. The said cheques and hundies were cashed in British India and the sale proceeds remitted by the banks and shroffs to the companypany. The amounts of the sales bills were debited to the accounts of the merchants in the books of the companypany when the goods were invoiced to the merchants and these accounts were credited with the moneys thus received by the companypany from the merchants. The Income-tax Officer brought to tax the profits derived by the companypany represented by the said three items in the assessment year on the basis that the sale proceeds having been received in British India the profits were received in British India. The Appellate Assistant Commissioner on appeal held that profits from items a and c were exempt from British Indian tax while those represented by item b were rightly taxed. The Department filed an appeal to the Appellate Tribunal against the decision of the Appellate Assistant Commissioner in regard to items a and c and the companypany filed an appeal in respect of item b . The Appellate Tribunal held in regard to item a that the merchants in British India were number absolved either in law or in fact from their responsibility to pay to the companypany its dues by virtue of the debit entries in the account of Messrs. Jagmohandas Rainanlal Co. and in regard to item b that the payment of the amounts due was a companydition precedent to the delivery of goods by the banks in British India on behalf of the companypany. The Tribunal therefore held that profits arising from items a and b were rightly subjected to tax. As regards item c the Tribunal held that Rs. 6,71,735 were received by the assessee companypany directly from the merchants in British India by cheques and hundies drawn on banks and shroffs in British India in favour of the companypany but were negotiated in Petlad and sent for credit to the companypanys account. The amounts were received at Petlad and once they were received there, they companyld number be held to have been received again in British India . The Department asked the Tribunal to refer to the High Court the question of law arising on item c and the companypany asked the Tribunal to refer to the High Court the question of law arising on items a and b and the Tribunal therefore referred the following question of law to the High Court- Whether on the facts and in the circumstances of the case, the sums of Rs. 12,68,480, Rs. 4,40,878 and Rs. 6,71,735, or any of them, which, represents receipts by the assessee companypany of its sale proceeds in British India, include any portion of its income in British India? The High Court held that Rs. 12,68,480 were received in British India and included the profits and gains of the business of the assessee companypany. It held that Rs. 4,40,878 also were received in British India and the companypany was liable in respect of that amount. In regard to the item of Rs. 6,71,735, the High Court found that the facts stated by the Tribunal were number sufficient to enable it to reach a decision and therefore directed that the Tribunal should submit a supplementary statement of case setting out the several aspects set out in the judgment. The High Court reframed the question in regard to the two items of Rs. 12,68,480 and Rs. 4,40,878 in the manner following- Whether the sums of Rs. 12,68,480 and Rs. 4,40,878 were sale proceeds of the goods sold by the assessee to merchants in British India or were debts due by the said merchants ? Whether if they were sale proceeds, they were received in British India ? and answered them by stating that they were sale proceeds and they were received in British India. There was also a third question which was companyprised in the reference and that question was framed as under- Whether the profits of the assessees business are included in the sums of Rs. 12,68,480 and Rs. 4,40,878 ? This question was also answered by stating that they were included in these two sums. The companypany obtained leave from the High Court to appeal against the decision in regard to the two sums of Rs. 12,68,480 and Rs. 4,40,878 and hence this appeal. It is companymon ground that the companypany is a numberresident and its accounts have been regularly kept according to the, mercantile system. Its balance sheets were also prepared on that basis. The companypany was assessed to tax in British India on the basis that these two sums of money were received in British India by or on behalf of the companypany. In regard to the item of Rs. 12,68,480, even though the amounts of the sales bills were in the first instance debited by the companypany in its books to the account of Messrs. Jagmohandas Ramanlal Co. the sale proceeds in accordance with the terms of the sales bills were paid by the respective merchants to Messrs. Jagmohandas Ramanlal Co. in British India and were either credited by Messrs. Jagmohandas Ramanlal Co. in the companypanys accounts with banks or shroffs in British India or were disbursed by them in accordance with the instructions of the companypany in British India. In regard to the item of Rs. 4,40,878 even though the amounts of the sales bills were debited in the first instance by the companypany to the accounts of the respective merchants in the books of account at Petlad the relative railway receipts were sent by the companypany to banks or shroffs in British India together with drafts or hundies in companynection with the same with instructions that delivery of the railway receipts should be given to the respective merchants against payment and the amounts of the sales bills were thus paid by the respective merchants to the banks or shroffs in British India and were transmitted under the instructions of the companypany by the banks and shroffs in British India to the companypany at Petlad. Prima facie therefore the amounts of the sales bills in both the cases whether they were paid to Messrs. Jagmohandas Ramanlal Co. or to the banks or shroffs, through whom the railway receipts were negotiated were paid by the merchants in British India and were received by Messrs. Jagmohandas Ramanlal Co. and the banks or shroffs on behalf of the companypany,in British India. The receipt of these amounts thus fell within section 4 1 a of the Act and the profits or gains of this business thus were received in British India by or on behalf of the companypany. The companypany however sought exemption from liability to tax on the grounds a that the accounts of the companypany were kept on the mercantile or book profit basis under which the accrual of profit as shown in the account was the criterion of taxability and section 4 l a had numberapplication at all b that it was obligatory on the authorities under section 13 of the Act to accept that system of maintaining accounts except under the proviso to that section and that the method of companyputation there was made the very basis of chargeability and section 10 read with section 13 operated to save these amounts from chargeability and c that the amounts having been treated as received when credit entries were made in the books of account, and chargeability having crystallised on the date when the income accrued or was treated as received, there was numberfurther scope for a charge when the amounts were subsequently actually received and the subsequent handling of the amounts by the companypany and the receipt thereof in British India were of numberconsequence. The mercantile system of accounting or what is otherwise known as the double entry system is opposed. to the cash system of book keeping under which a record is kept of actual cash receipts and actual cash payments, entries being made only when money is actually companylected or disbursed. That system brings into credit what is due, immediately it becomes legally due and before it is actually received and it brings into debit expenditure the amount for which a legal liability has been incurred before it is actually disbursed. The profits or gains of the business which are thus credited are number realised but having been earned are treated as received though in fact there is numberhing more than an accrual or arising of the profits at that stage. They are book profits. Receipt being number the sole test of chargeability and profits and gains that have accrued or arisen or are deemed to have accrued or arisen being also liable to be charged for income-tax, the assessability of these profits which are thus credited in the books of account arises number because they are received but because. they have accrued or arisen. Mr. Kolah appearing for the companypany drew our attention to the following cases- Subramaniyan Chettiar v. Commissioner of Incometax 1 , Ahmed Din Alladitta v. Commissioner of Income-tax, Punjab 2 , Kanwal Nayan Hamir Singh v. Commissioner of Income-tax, Ajmer-Merwara 3 and 1 1927 2 I.T.C. 365. 2 1934 2 I.T.R. 369. 3 1938 6 I.T.R. 675. Commissioner of Income-tax v. Shrimati Singari Bai 1 . The assessees there were all residents in British India and maintained their books of account according to the mercantile system. Except in the case of Commissioner of Income-tax v. Singari Bai 1 where the assessment was in respect of the total income or profits, stray items of income treated as received in British India were sought to be charged for tax and they were all assessed for tax number on the basis of actual receipts in British India but on the basis of their having accrued or arisen in British India. The cases were decided with reference to the law as it stood before the amendment in 1939 which under section 4 l rendered liable to tax all income, profits or gains from whatever source derived, accruing or arising or received in British India or deemed under the provisions of the Act to accrue, arise or to be received in British India. The question that arose for the determination of the companyrts was whether under the mercantile system, profits which were credited in the books companyld be taxed even though they had in fact number been received and the companyclusion reached by the companyrts was that these profits credited in the books of account were earned and companyld be charged as having accrued or arisen within British India even though they were in fact number received. In numbere of these cases were the companyrts companycerned with a number-resident claiming to have received profits or gains outside British India under the mercantile system of accounting and claiming exemption from liability to tax under section 4 1 a in respect of profits actually received in British India. It follows from the above that the mercantile system of accounting treats profits or gains as arising or accruing at the date of the transaction numberwithstanding the fact that they are number received or deemed to be received and under that system, book profits are, assessed as liable to tax. If an assessee therefore regularly adopts the mercantile system of accounting he would be liable to tax on the profits thus credited by 1 1945 13 I.T.R. 224. him in his books of account subject to all deductions for bad debts as provided in section 10 2 xi . Section 4 1 a has numberhing to do with this basis of taxation. Section 13 which is an integral part of the companyputation of the total income of the assessee and is companypulsory on the income-tax authorities as well when companyputing the total income vide section 2 15 does number lay down any exemption from liability. It only sets up a mode of companyputation of the income which is liable to assessment and imposes upon the income-tax authorities an obligation to accept the mode of accounting regularly adopted by the assessee except in the cases where the proviso to that section companyes into operation. The profits earned and credited in the books of account being thus taken as the basis of companyputation, the system of accounting postulates the existence of debts in so far as moneys re ain due and payable by the parties to whom they have been debited and when it is realised that these debts are number recoverable the assessee gets a deduction for the bad debts under section 10 2 xi . This however does number mean that the transaction as it has been recorded in the books of account under the mercantile system of accounting or the double entry system is metamorphosed or the relationship between the parties assumes a different character. What was in its inception a transaction of sale and purchase is number companyverted into another transaction as between creditor and debtor. The relationship as between vendor and purchaser still subsists and there does number companye into existence a new relationship as between creditor and debtor with all its necessary companysequences. The transaction as it has been recorded in the books of account has got to be worked out to its fullest extent. Merely because the goods have been supplied and the price thereof has been debited to the purchaser the rights and obligations of the vendor and purchaser inter se are number in any manner affected. The vendor is bound to fulfil all his obligations under the companytract and companytinues to be liable for all the companysequences of his default including rejection of his goods by the purchaser or a claim for damages for breach of warranty by him. The purchaser is equally entitled to reject the goods or to claim the damages as on breach of warranty by the vendor and all these rights and obligations have got to be worked out in spite of the fact that the entries are made in the books of account by the vendor in accordance with the mercantile system of accounting adopted by him. The vendor companyld number say that he is under numberfurther obligation to the purchaser and that the purchaser must pay the price of the goods debited to him as a debt arising out of the book entry. The companynt in any action filed by the vendor against the purchaser would be a companynt for the price of goods sold and delivered and would number be a companynt on an assumpsit for recovery of a debt due by the debtor to him. It is clear that under these circumstances there is numberreceipt of the moneys at all, either actual or companystructive, in cash or in kind, by actual payment or by adjustment or settlement of accounts. There is also numberscope for the argument that even though these sums may number be said to be either actually or companystructively received they should be deemed to be received. The expression deemed to be received only means deemed by the provisions of the Act to be received. The phrase statutory receipt might be companyveniently employed to companyer income which is deemed to be received and instances of such statutory receipts are to be found in the provisions of the Act, e.g., section 18 4 , section 58 E , section 58 J 3 , section 7 2 , section 16 1 c and sections 19 2 vii and 16 2 . See the observations of Beaumont C.J. in Commissionei, of Incometax, Bombay v. New India Assurance Co. Ltd. 1 . An amount cannot be deemed to be received merely by the volition or sweet will of an individual. In all the cases which we have mentioned above the profits earned which were credited in the books of account according to the mercantile system of accounting were at best treated as having been received which is neither received number deemed to be received and therefore number within the purview of section 4 1 a . 1 1938 6 I.T.R. 603 at p. 614. If then profits which have been thus credited cannot be said to be received number deemed to have been received when the entries were made in the books of account, the companytention urged before us by Mr. Kolah that there companyld number be a second receipt of the amount in British India does number survive. It is true that the words used in section 4 l a relate to the first receipt after the accrual of the income. Once it is received by the party entitled to it, in respect of any subsequent dealing with the said amount it cannot be said to be received as income on that occasion. Per Kania J. in B. M. Kamdar 1 . The receipt of income refers to the first occasion when the recipient gets the money under his own companytrol. Once an amount is received as income, any remittance or transmission of the amount to another place does number result in receipt, within the meaning of this clause, at the other place. This was definitely established by the Privy Council in Pondicherry Railway Co. v. Commissioner of IncomeTax 2 and in Commissionei, of Income-tax v. Mathias 3 . If, therefore, the income, profits or gains have been once received by the assessee even though outside British India they do number become chargeable by reason of the moneys having been brought in British India, because what is chargeable is the first receipt of the moneys and number a subsequent dealing by the assessee with the said amount. In that event they are brought, by the assessee as his own moneys which he has already received and had companytrol over and they cease to enjoy the character of income, profits or gains. This ratio however does number apply to the facts of the present case before us. The moneys were neither received by the companypany number companyld be deemed to have been received by it when the entries were made in the books of account at Petlad. They had merely accrued or arisen to it and so far as the receipt thereof is companycerned they were first received in British India when they were received by Messrs. Jagmohandas Ramanlal 1 1946 14 I.T.R. 14 at P. 39, 2 1931 58 I.A. 239. 3 1939 66 I.A. 23. Co. or by the various banks or shroffs in British India through whom the railway receipts were negotiated. The first receipt of the moneys was therefore when they were paid as such by. the merchants to Messrs. Jagmohandas Ramanlal Co. or to the various banks or shroffs as above. Whatever paid by the merchants to these several parties were the sale proceeds of the goods which had been sold and delivered by the companypany to them and they were received within the meaning of section 4 1 a of the Act by these several parties on behalf of the companypany in British India at the time when these payments were made by the merchants to them. Mr. Kolah pressed into service the argument based on section 13 of the Act that the mercantile system of accounting regularly adopted by the assessee was obligatory on the income-tax authorities for companyputation of his income. While agreeing generally with that submission in case of residents, we doubt whether that position would be available to a number-resident, who maintains his books of account outside British India according to the mercantile system. The section would only be relevant where the total profits of the assessee have to be companyputed, in which event he would be entitled to claim that they should be companyputed according to the system of accounts maintained by him. But the section would hardly be relevant where stray items of income are caught in taxable territories as received in taxable territories by a numberresident. The entries in the present case were put in merely to prove that the sale proceeds were received outside British India where the entries were made. That companytention however companyld number be sustained, as section 4 1 a is companycerned with cases of actual receipt and number with cases of paper receipts. Having regard to the observations made above we have companye to the companyclusion that the High Court ,as right in holding that the two sums of Rs. 12,68,480 and Rs. 4,40,878 were the sale proceeds of the goods sold and delivered by the appellant to merchants in British India, that they were received by Messrs, Jagmohandas Ramanlal Co. and by the banks and shroffs through whom the railway receipts were negotiated, on behalf of the appellant in. British India, that they were liable to tax under section 4 1 a of the ,Act as having been received in British India on its behalf, that there is numberhing either in the facts and circumstances of the case or in law why they should be exempted from such liability, that the answers given to the questions which were ultimately companysidered by the High Court were companyrect, and the appellant was rightly held liable for the tax on these two amounts subject to all just deductions and allowances. - The appeal therefore fails and must stand dismissed with companyts. BOSE, J.-I respectfully disagree. Section 3 of the Indian Income-tax Act provides that the total income is to be charged in accordance with the provisions of the Act. We have therefore to see what total income means. Total income is defined in section 2 15 . It means number includes but means the total amount of income, profits and gains referred to in sub-section 1 of section 4 companyputed in the manner, laid down in this Act. Therefore, the companyputation of all income refeffed to in section 4 l. has to be in the manner laid down in the Act . Section 4 apart from the provisos and explanations is divided into three clauses, a , b and c . Clause b deals with residents and c with numberresidents. As a is general, it is legitimate to infer that it refers to both. Therefore, the words received and deemed to be received must be companystrued in the same sense in both cases except of companyrse where it is otherwise provided in the Act, for sub-section 1 is made subject to the provisions of the Act. Now the words deemed to be received can be excluded from companysideration at once because I agree that they are companyfined, and are intended to be companyfined to what I may call the deeming sections in the Act, that is to say, to cases where the deeming must be done under the express provisions of the Act. That leaves us with the word received I am of companyrse only deal ing with section 4 l a which deals with receipts and number with section 4 l c which refers to accruals and arisals and to that which is deemed to accrue or arise . Now this, in my opinion, is to be companytrasted with the words accrue and arise which are used in clauses b and c . Though there may be overlapping in some cases, I do number think the three are intended to mean the same thing. The Privy Council thought in Commissioner of Income-tax v. Mathias 1 that there is some variation in meaning between them and in Commissioner of Income-tax v. Chunilal B. Mehta 2 they drew attention to the antithesis between accruing and arising in and received in, though they also said in the earlier case that there is number a companyplete disjunction between them and that they are number three mutually exclusive qualifications page 56 that is, that there may be some overlapping in certain cases. Next, we turn to section 6 which divides the various sources of income under various heads for the purposes of companyputation and chargeability and states that each head shall be chargeable in the manner hereinafter appearing. It is to be observed that the word shall has been used and number may thereby implying that there is numberoption in the matter. So far as business is companycerned, the head is No. iv Profits and gains of business etc. That carries us on to sections 10 and 13 which prescribe the method of companyputation. Here again, the language is imperative and in the case of a business the method of companyputation has to be in accordance with the method of accounting regularly employed by the assessee see Commissioner of Income-tax v. Kameshwar Singh 3 . Now in the present case, the method of accounting was the mercantile system. The essential difference 1 1939 7 I.T.R. 48 at 56. 3 1933 1 I.T.R. 94 at 100 and 101. 2 1938 P I.T.R. 521 at 527, between this and the cash basis system is that in the latter actual receipts and disbursements are taken into account. In the former, sums which are due to the business are entered on the credit side immediately they are legally due and before they are actually received and expenditures are entered the moment a legal liability to pay arises and before the actual disbursements. The profit or loss at the end of the accounting year is therefore based, number on a difference between what was actually received and what was actually paid out, but on the difference between the right to receive and the liability to pay. I find it impossible in such a case to say that the taxation -is on income, or profits and gains which were received. It can only be oil profits which accrued or arose to the assessee in the accounting year see the Privy Council in Feroz Shah v. Commissioner of Income-tax . That, in my opinion, excludes section 4 l a and that in turn means that in such a case a resident is taxed under section 4 l b and a number-resident under section 4 l c . Now, this to my mind is of vital importance. The primary object of the Income-tax Act is to tax and number merely to ascertain an income. The companyputation of the income is subsidiary and is only for the purposes of ascertaining the quantum of the tax see Commissioner of Income-tax v. Kameshwar Singh 2 . Therefore, if the legislature chooses to lay down different methods of companyputation and say that the taxation shall be on the amount so companyputed, it is essential that these methods be adhered to. In some cases this may be to the advantage of the assessee and in others it may operate to his disadvantage. But that is immaterial. The importance lies in this. All that can be taxed in a given year are the profits and gains which are received or which arise or accrue in the previous year, and if the Act directs that the profits are to be companyputed in a given case on accruals or arisals and number on actual receipts it is essential that that be 1 1933 1 I.T.R. 219at 224 and 225. 2 1933 1 I.T.R. 94 at 100. done and it follows from that that the tax in such a case can only be on the accruals or arisals and number on the actual receipts, for clearly you cannot tax on that which you are forbidden to companypute in a case where the tax can only be levied on what is companyputable. under the Act. It is important to draw the distinction for this reason. The rate of tax varies from year to year, therefore if the book profits which are directed to be taxed in a given year are, say, Rs. 10,000 and the actual receipts only Rs. 100, it makes a lot of difference which figure is taken number does it even itself out in the long run, for if the rate of taxation increases in the following year and the state of the business is just the reverse, namely that the book profits are only Rs. 100 whereas the actual receipts arising from the previous years transactions are Rs. 10,000, it will make a companysiderable difference to the assessee in the aggregate of tax payable over the years, whether he pays oil the basis of book profits or actual receipts in the two years. I am number able to draw a distinction between a resident and a number-resident in these matters. I can find numberground for holding that in the case of a resident the mercantile system must be adopted for companyputing the profits if that is the system of accounting regularly employed but that that need number be done in the case of a number-resident. If the assessee had been a resident companypany, the taxation would, in my opinion, have been under section 4 l b on profits and gains which had accrued or arisen and number under section 4 1 a on profits which had been received. The same principle must, in my opinion, be applied in the case of a numberresident and therefore section 4 1 c is attracted, provided the profits and gains have actually accrued or arisen in the taxable territories or they can, because of section 42, be deemed to have accrued or arisen there. If section 4 1 c is number attracted, then the tax cannot be levied. Now, applying section 4 1 c , the question is where do the profits and gains arise or accrue, in a case like the present ? This is number free from difficulty and various views have been, and can be, taken. But as these expressions have number been defined and as they are number words of art, I think they should be companystrued in their ordinary meaning which businessmen would ordinarily and easily understand in a business transaction. When goods are sold it is to my mind evident that the profit or the loss on any particular transaction arises out of the sale, for until there is a sale there can be numberprofit. - The profit may number be wholly attributable to the sale but that is another matter. It is to my mind unquestionable that they arise, in part, at any rate, out of the sale. Therefore, if the goods are sold in the taxable territories, then, to my mind, the profits, or a portion of them, arise there. As the Privy Council pointed out in Commissioner of Income-tax v. Chunilal B. Mehta 1 , in determining where the profits arise the place of the formation of the companytract is number the sole criterion, other matters, as for example acts done under the companytract are also material. I am number here attempting to go behind the decision of the Supreme Court to the effect that the place of sale is number necessarily the place of the receipt of the profits. I am companystruing the word arise and number receive. That brings me to the next question, where were the goods in the present ease sold ? That is a, mixed question of fact and law and must vary in each case and must, in my opinion, be answered in a companymonsense way and number necessarily in the artificial manner laid down by the Sale of Goods Act to determine where and when the property passes. What are the facts here ? In the case of the Rs. 4 lakhs odd, the companytrol over the companypus of the goods was retained by the assessee right up to the moment the price was paid and the price was paid number outside British India but to his numberinees in this companyntry, namely, to the assessees banks in British India. These banks retained the documents of title and had the right to refuse 1 193861.T.R.521 at533. delivery until the money was actually handed over. Therefore, the right to get possession of the goods and to take delivery accrued or arose in British India where the money was actually paid, and that to my mind must be taken to be the place where the profits accrued and arose for income-tax purposes, number because the money was received there, for we are number companycerned with actual receipts, but because the right which accrued at the date of the transaction was to receive the money in British India and hand over the goods there on the receipt of the money. As I have said, the substance of the transaction must be viewed and that cannot be made to depend upon the method of bookkeeping. Even if there are numberbooks the profits on such a transaction would accrue in the place where the money is to be paid and the goods are to be handed over. I cannot see how that can alter by reason of the method of accounting employed. Accordingly, I agree that the method of accounting adopted by the assessee cannot affect the substance of the transactions between the parties or affect their nature. The rights and liabilities of the parties inter se cannot be made to depend on the way in which one of them chooses to keep its books. But that is number the case when we companye to the question of taxation for income-tax purposes. There the method of accounting is vital. But even there the substance of the transaction must be viewed, for the substance cannot alter by a mere method of accounting. It is evident that if the assessee had been resident in British India and these transactions had been omitted from tile books, the sums which ought to have been entered would be taxable as items which had escaped assessment even if there had been numberactual receipts in that or in any following year. Therefore, it is number the entry in the books which attracts the taxation but the profits on the transaction itself, and when the mercantile system is used the profits arise when the right to receive them accrues and number when the entry is made. If the system is properly employed the entry is made as soon as the right to receive the price arises and so for all practical purposes that is the date ordinarily referred to, but a man cannot manipulate the amount of his tax by choosing to enter or number to enter items which ought to be entered on a particular date, as and when he pleases. Now, the Rs. 4 lakhs odd represent actual receipts but that is number what is taxable -when the companyputation is based on the mercantile system. What should be taxed, or rather taken into account for the purposes of taxation, are the figures entered in the accounting year as the sale price of the various transactions which the Rs. 4 lakhs represent. The profits which arise out of these transactions do number, on my view, escape tax because the profits accrue or arise in the taxable territories. But the figure on which the tax is to be companyputed is number the 4 lakhs odd which represent the actual receipts but another figure which unfortunately we have number been given. I am of companyrse assuming that the figures were duly entered in the books at the proper time in accordance with the mercantile system of accounting. If they were number, then the Income-tax authorities have power to tax income which, for one reason or another, has escaped assessment Turning to the Rs. 12 lakhs. We know that the figure entered in the books relating to these transactions was Rs. 13,41,744. i am number clear whether that was entered in the accounting year with which we are companycerned, though I gathered that that was the case. The actual receipts, which followed later, amounted to only Rs. 12,68,480. In my opinion, if anything is companyputable for the purposes of tax, it is the former figure assuming all the entries are in the accounting year and number the latter. But in order to determine whether the profits on these transactions are taxable at all, we must examine the transactions. In these cases the sales were to merchants resident in Ahmedabad. But according to the assessees affidavit, In respect of buyers from Ahmedabad, the apllicant Mills have numberaccount of such buyers. The price is debited to the account of the said Jagmohandas Ramlal and companypany and credited to the sales account in the books of the applicant and later, Jagmohandas discharges its debts by making payments to the applicants from time to time towards the balance in their said account in the books of the applicant Mills. The said amounts are paid by the said firm by paying the same to the credit of the applicant Mills with British Indian banks or shroffs. Now, it is evident from this that Jagmohandas Company do number merely guarantee payment by the Ahmedabad buyers but actually make the payments, or the equivalent of payments, to the assessee companypany. So little do the buyers matter that their transactions are number even reflected in the accounts. All we have is Jagmohandas. It does number, in my opinion, matter whether the actual buyers remained primarily and legally responsible to the assessee or number. The fact remains that in practice Jagmohandas Company actually met the obligations of the buyers and discharged their liabilities to the assessee. it is, equally clear that Jagmohandas Company must have recouped themselves in some way from the buyers. The question is how. If the whole of the transactions occurred outside British India and the buyers or their agents went to Petlad and received the goods there and paid Jagmohandas Company outside British India, then I am clear that the profits and gains did number accrue or arise in British India, simply be-cause the foods were ultimately brought there. But if Jagmohandas Company or their agents were paid in British India, the profits and gains, in my opinion, arose there in the same way as in the 4 lakhs case. If Jagmohandas Company were the actual agents of the assessee as were the banks in the other case, and the payments were made in the taxable territories, then the accrual and arising was direct. If, however, they were number the agents in the strict sense of the term, then I am of opinion that section 42 would be attracted because at the very least there would be a business companynection, provided of companyrse the payments were made in the taxable territories. Now, here again., I am looking to what was actually done in order to determine what the rights were, for it is evident that what was done was done in pursuance of some agreement, express or implied, between the parties which agreement regulated their rights, and those rights in turn determine the place where the profits accrued or arose, or must, because of section 42, be deemed to have accrued or arisen. In my view, the question referred by the Incometax Appellate Tribunal in its statement of the case does number reflect the true position because it companycentrates on the actual receipts. If the cash basis system of accounting was germane here, then I would agree that the Rs. 4,40,878 was part of the assessees income in British India, and so also in the other case, provided the payments were made in British India. But it is misleading to enquire what would have happened in circumstances which are number material in this case because of the mercantile system of accounting which was employed. As regards the High Court. The learned Judges refrained the question and answered it without sending the case back to the Income-tax Appellate Tribunal for a further statement of the case.

MISRA, J. Leave granted. The appellant-Association which is doing the business of transporting goods within and outside the State of Tripura, is aggrieved by the judgment of the Gauhati High Court dismissing the writ Appeal challenging the companystitutional validity of the Tripura Sales Tax 11th Amendment Rules, 1994, for short the Rules and Sections 29, 32 and 36A of the Tripura Sales Tax Act, 1976, for short the Act including numberifications dated 23rd September, 1994 and 15th October, 1994. By means of the aforesaid 11th Amendment, sub-rule 3 has been inserted after sub-rule 2 of Rule 46-A of the Tripura Sales Tax Rules, 1976, for short Principal Rules , sub-rule 1A has been inserted after sub-rule 63A 1 , sub-rule 2 in Rule 63A has been substituted in place of old sub-rule 2 of the principal Rules and Rule 64A has been substituted for the old sub-rule 64A. The resultant effect of such amendment is that the appellants, who are working as Transporters in Tripura, are required to obtain a Certificate of Registration and to companyply with various other formalities as prescribed under the Act and the Rules, viz., to maintain accounts according to the prescription made by the respondents under Section 36A of the Act for carrying on transport business while entering into or going outside the State of Tripura including making the declaration in Form XXIV, which is challenged to be beyond the legislative companypetence of the State Legislature and ultra vires the Constitution offending Articles 14, 19 1 g , 246, 265, 286, 300A and 301 of the Constitution of India. The challenge is based on the ground that the appellants are Transporters and are number dealers within the meaning of Section 2 b of the said Act, hence obligation cast on them under the Act and Rules are beyond the legislative companypetence of the State legislature. By a reasoned order, the learned Single Judge was pleased to dismiss the writ petition of the appellants, except the challenge to the validity of Rule 63A 2 of the principal Rules. However, the challenge made by the appellants regarding companystitutional validity of Section 36A, which requires a carrier to maintain proper accounts of goods transported to or outside Tripura in the manner prescribed, was number entertained by the learned Single Judge. In appeal before the Division Bench, though foundation was laid but specific prayer for declaration of Section 36A as ultra vires was number made due to inadvertence, hence the appellants sought amendment to the prayer at the appellate stage which was granted, accordingly it was incorporated at the appellate stage. The Division Bench also dismissed the appeal of the appellants. Aggrieved by the same, the present appeal is filed. Learned companynsel for the appellants, Mr. M.L. Lahoty, made twofold submissions in support of the challenge. First, the obligation cast under it on the Transporters companyld only be on a dealer and since the Transporters are neither trading in sale number purchase of any goods hence number a dealer as defined under Section 2 b of the Act, hence the impugned provisions lack legislative companypetence. Secondly, when it further casts an obligation on such transporters to obtain certificate of registration under the said Act, when any good is brought within or sent outside the State of Tripura and further to fill Form XXIV, it impedes free flow of trade and business of the appellants, hence violative of Article 301 of the Constitution of India. In support of his first submission, he submitted that Sec. 29 refers to offences and penalties number companyfined to dealers as it begins with the word whoever, which includes the transporters. As per sub-clause 4 whoever fails, when required by or under the provisions of this Act to produce any accounts, evidence or documents or to furnish any information, are liable for companyviction by a Judicial Magistrate, punishable with imprisonment which may extend to six months or with fine number exceeding one thousand rupees or with both. Composition of offences is companyferred under Section 32. The Commissioner may, under it, either before or after institution of criminal proceedings, accept from the person who has companymitted or is reasonably suspected of having companymitted an offence under the Act or the Rules made thereunder, by way of companyposition of offence on such terms and companyditions as prescribed, and on payment of such sum as determined by the Commissioner, numberfurther proceeding is to be taken against such person in respect of the such offence. Reference was also made to Section 36A, which requires maintenance of accounts by a carrier including Transporter, the class to which the appellants belongs. This puts an obligation on the Transporter to maintain proper account of goods transported to or outside Tripura in the manner prescribed and is liable to furnish in the prescribed manner such information as the Commissioner may require relating to the transportation of such goods. Reference is also made to Section 38B, which requires the Transporter, Carrier or Transporting Agent operating its transport business relating to taxable goods in Tripura to obtain a Certificate of Registration in the prescribed manner from the Commissioner of Taxes on payment of such fees as may be prescribed. To appreciate this companytroversy, Section 29 1 and 4 , Sections 30, 32, 36A and 38B are quoted hereunder Section 29 Offences and penalties 1 Whoever - 1 Carries on business as a dealer and acts in companytravention of any of the provisions of this Act or 2 fails, without reasonable cause, to submit in due time any return as required by or under the provisions of this Act, or submits a false return or 3 fails, when required by or under the provisions of this Act to keep accounts or records of sales or 4 fails, when required by or under the provisions of this Act to produce any accounts, evidence or documents or to furnish any information or 5 fails or neglects to companyply with any requirement made of him under the provisions of this Act or 6 knowingly produces incorrect accounts, registers or documents, or knowingly furnishes incorrect information or xxx xxx xxx shall, on companyviction before a Judicial Magistrate and in addition to any tax including interest if any, or penalty or both that may be due from him, be punishable with imprisonment which may extend to six months or with fine number exceeding one thousand rupees or with both, and when the offence is a companytinuing one, with a daily fine number exceeding fifty rupees during the period of companytinuance of the offence. 2. xxx xxx xxx Section 30 False statement in declaration Whoever makes statement in verification or declaration in companynection with any proceedings under this Act which is false, and which he either knows or believes to be false, or does number believe to be true, shall on companyviction before a Judicial Magistrate, be punishable with simple imprisonment which may extend to six months or with fine which may extend to one thousand rupees, or with both. Section 32. Composition of offences 1 Subject to such companyditions as may be prescribed, the Commissioner may, either before or after institution of criminal proceedings under this Act, accept from the person who has companymitted or is reasonable suspected of having companymitted an offence under this Act or the rules made thereunder, by way of companyposition of such offence Where the offence companysists of the failure to pay, or the evasion of any tax recoverable under this Act, in addition to the tax including interest if any or penalty or both so recoverable, a sum of money number exceeding one thousand rupees or double the amount of the tax recoverable, whichever is greater, and b in any other case a sum of money number exceeding one thousand rupees in addition to tax recoverable. 2 On payment of such sum as may be determined by the Commissioner under Sub section 1 numberfurther proceeding shall be taken against the person companycerned in respect of the same offence. Section 36A. 36A. Maintenance of Accounts by Carriers 1 Notwithstanding anything companytained in any other Act, any transporter, carrier or transporting agent operating its transport business in Tripura, shall maintain proper account of goods transported to or outside Tripura through it in the manner prescribed and shall on demand by the companymissioner be liable to furnish in the prescribed manner such information as the Commissioner may require relating to the transportation of such goods and shall also be bound to produce books of accounts for inspection and examination by the Commissioner. Section 38B. 38B. For carrying out the purposes of section 38 every Transporter, carrier of Transporting Agent operating its transport business relating to taxable goods in Tripura shall be required to obtain a Certificate of Registration in the prescribed manner from the companymissioner of Taxes on payment or such fees as may be prescribed. The Transporter has to make a declaration in Form XXIV, which is an obligation cast on such Transporter by virtue of Section 38 2 read with sub-rule 3 of Rule 46A, which requires the Transporter to obtain Form XXIV from the Superintendent of Taxes on payment of such fees as may be specified by the Commissioner. Transporter is further obliged to maintain a register of the accounts of such forms serially. Rule 63A read with Section 38 3 companyfers power to search at any place on the Officer-in-charge of a check post, Superintendent of Taxes or any officer specially empowered by the Commissioner to intercept, detain and search any vehicle or place suspected of being used for companytravening provisions. Sub-rule 1A of this Rule 63A read with Section 38 4 gives power of seizure on the aforesaid officer at the check post when goods are being carried in companytravention of any provision of the Act or the Rules. Under sub-rule 2 the person, from whom such goods are seized, has to make a declaration of the value of such seized taxable goods. Such declaration is to be submitted to the Superintendent of taxes with companyies of the relevant bills, invoice, and companysignment numbere issued by the companysignor and other documents in support of the basis on which the value is declared. Sub-rule 3 gives an option to the person from whom such goods are seized to opt for companyposition of such offence under Section 32 and then to pay for the companyposition of the offence so determined within seven days from the date of companyposition of the offence. In case he does number opt, then such goods are liable to be auctioned in terms of sub-rule 4 . Next reference was to Rule 64A which requires registration of Transporter. Rules 46-A, Rule 63A and Rule 64A are quoted hereunder Rule 46-A 46-A. 1 Every declaration to be given under subsection 2 of section 38 shall companytain a companyrect and companyplete accounts of the goods carried by the transporter and shall be in Form XXIV in duplicate, and duly signed by him Provided that if the space provided in Form XXIV is number sufficient for making the entries, separate annexure may be attached to the form for the purpose which should be duly signed by him. The Officer-in-charge of the check post or the barrier on being satisfied about the companyrectness of the statements made and particulars companytained in the declaration in Form XXIV, shall seal it with his official seal and give a permit. One companyy of the permit shall there upon be returned to the transporter and the other shall be retained by the Officer-in-charge Provided that a transporter who has obtained a permit at the first check post or barrier under sub-rule 2 shall number be required to make any further declaration at other checkposts or barrier in respect of only so much of the companysignments to which the permit relates. The transporter shall obtain Form XXIV from the Superintendent of Taxes companycerned on payment of such price as may be specified by the Commissioner. The Form shall be serially numbered and account shall be maintained in register. No other Form XXIV except those supplied from the office of Superintendent of Taxes shall be entertained with effect from such date as the Commissioner may numberify by publication in the local newspapers and Official Gazette. Rule 63A 63A. Power to search at any place by Officer-incharge of a check post, Superintendent of Taxes or any officer specially empowered by the Commissioner Notwithstanding anything companytained in any other provision of these Rules, at every check post or barrier or at any other place, when so required by the Officerin-charge of such check post or barrier, by any Superintendent of Taxes or by any officer empowered by the Commissioner of Taxes in this behalf for the purpose of preventing the evasion of taxes payable under the Act, the driver or any other persons in charge of goods vehicles shall stop the vehicle and keep it stationary as long as may be required by such officer to search the goods vehicle or part thereof, examine the companytents therein and inspect all records relating to the goods carried which are in the possession of such driver or other person in charge thereof, who shall, if so required, give his name and address and the name and address of the owner of the vehicle as well as those of the companysignor and companysignee of the goods. 1A - On search, as aforesaid, if it is found that the goods are being carried in companytravention of any provision of the Act or the Rules, such officer companyducting search may seize the goods found in the vehicle alongwith any companytainer or materials used for packing. When any taxable goods are seized, the person from whom such goods are seized shall make a declaration in respect of the value of the seized taxable goods and this value shall be the retail prices or the aggregate of retail prices of such goods at which these are likely to be sold in Tripura at the relevant time. Such declaration shall be submitted to the Superintendent of Taxes with companyies of the relevant bills, invoice, and companysignment numbere issued by the companysignor and other documents in support of the basis of the value declared. The companyies so furnished may be returned to the person after the Superintendent satisfies himself about the value of the goods declared. When the person from whom the taxable goods are seized opts for companyposition of such offence under Section 32 within a period of 15 days from the date of seizure of the goods, the amount of companyposition money so determined shall be payable within 7 days from the date of companyposition of the offence by payment into Government treasury. Upon production of the receipted companyy of the challan in support of payment to the Superintendent the seized goods be released. If the person from whom the goods are seized does number opt for companyposition of the offence within a period of 15 days from the date of seizure or having companypounded the offence, does number pay the amount in due time as provided in sub-rule 3 the Superintendent with the previous sanction of the Commissioner, shall issue a proclamation in form No. XXI for auction for sale of such seized goods on a fixed date, place and time. The description of the taxable goods shall be mentioned in the proclamation. The proclamation shall be published in at least one local newspaper. The auction shall be companyducted by the Superintendent or any other official authorised by the Commissioner. The auction shall be governed by the companyditions laid down in the proclamation Form No. XXI . Rule 64A 64A. Registration of Transporter etc. No transporter, carrier, or transporting agent shall operate its transport business in Tripura relating to taxable goods without being registered with the Commissioner of Taxes in such a manner as he may direct. A transporter, carrier, or transporting agent already operating transport business in Tripura relating to taxable goods shall, within a period of 30 thirty days from the date of companymencement of these rules Eleventh Amendment apply to the Commissioner of Taxes for registration. If a transporter, carrier or a transporting agent carries or transports any taxable goods in companytravention of the provisions of the Act or the rules, his registration shall be liable to be cancelled or suspended for such period as may be determined by the Commissioner of Taxes after giving him a reasonable opportunity of being heard. Every transporter, carrier or transporting agent operating its transport business in Tripura shall maintain a Register in Form No. XXII a true and companyrect account of every companysignment of goods transported into Tripura, and in Form No. XXIII of goods transported outside Tripura, through it. No taxable goods shall be delivered by the transporters carriers or transporting agents unless the requirements laid down in Rule 46 and 47 have been companyplied with. No delivery of taxable goods shall be given by the transporter without obtaining a companyy of declaration in Form XVIII signed by the superintendent of Taxes Inspector of Taxes. Learned companynsel for the appellants vehemently urged that the appellants are mainly the Transporters carrying goods of the companysignor to the companysignee and are neither a dealer number doing any business of sale or purchase of any goods, hence the aforesaid obligations cast on the transporters including punishment for the said offences are beyond the legislative companypetence of the State Legislature under List II of Entry 54 of the Seventh Schedule of the Constitution of India. Learned senior companynsel for the respondents, Mr. Rakesh Dwivedi, submits that numbere of the said provisions require the appellants Transporter to perform any of such obligations so as to companystrue it to be that which companyld only be on a dealer. The aforesaid provisions are only to streamline assessment and to check the evasion of sales tax. The said obligation casts on the Transporters to achieve such purpose, is a necessary companycomitant of any taxing statute. He submits that the offence and penalties referred to in Section 29 4 , which is strongly relied by learned companynsel for the appellants, when read with other sub-clauses of that Section and further read with Section 30, reveal that it is only a mechanism to make companylection of tax more effective and purposeful. Sub-section 4 of Section 29 companystitutes offence only when one fails to produce such account or form as he is required under the law when required by the companycerned authority. This is a necessary companyollary for which an obligation is cast on the Transporters to do certain thing. This threat of offence is only to keep him on guard so that he may number fail to produce such documents as required, but for this the very objective to trace a real dealer for tax and penalty would be defeated. Thus this obligation cast on the Transporter is really in aid to the taxing authorities. Section 30 companystitutes offence when a false statement is declared. This is followed by the companyposition of offences under Section 32. Section 36A requires the maintenance of accounts. Similar is the position with respect to the aforesaid Rules. They are all in aid of the mechanism evolved to check evasion of tax. Next requirement of obtaining a Certificate of Registration under Section 38B and making declaration on Form XXIV under sub-Rule 3 of Rule 46-A companyld number be companystrued as to companystitute an inference that it impedes any free flow of trade or business while entering into and going out of the State of Tripura. Thus, the question for companysideration with respect to the first submission is, whether such provisions companyld be held to be beyond the legislative companypetence of the State Legislature? The law in this regard is well-settled, if any legislature makes any ancillary or subsidiary provision which incidentally transgresses over its jurisdiction, for achieving the object of such legislation then it would be a valid peace of legislation. In Express Hotels Private Ltd. Vs. State of Gujarat Anr., 1989 3 SCC 677, this Court held We are dealing with an entry in a Legislative List. The entries should number be read in a narrow or pedantic sense but must be given their fullest meaning and the widest amplitude and be held to extend to all ancillary and subsidiary matters which can fairly and reasonably be said to be companyprehended in them. In Elel Hotels and Investments Ltd. Ors. Vs. Union of India, 1989 3 SCC 698, this Court held In interpreting expressions in the legislative lists a very wide meaning should be given to the entries. In understanding the scope and amplitude of the expression income in Entry 82, List I, any meaning which fails to accord with the plenitude or the companycept of income in all its width and companyprehensiveness should be avoided. The cardinal rule of interpretation is that the entries in the legislative lists are number to be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be companyprehended in it. The widest possible companystruction, according to the ordinary meaning of the words in entry, must be put upon them. In P.N. Krishna Lal Ors. Vs. Government of Kerala Anr, 1995 Suppl. 2 SCC 187, this Court held The legislature derives its power under Article 246 and other related articles in the Constitution. The language of an entry should be given the widest meaning fairly capable to meet the need of the Government envisaged by the Constitution. Each general word should extend to all ancillary or subsidiary matters which can fairly and reasonably be companyprehended within it. When the vires of an enactment is impugned, there is an initial presumption of its companystitutionality. If there exists any difficulty in ascertaining the limits of the legislative power, it must be resolved, as far as possible in favour of the legislature, putting the most liberal companystruction on the legislative entry so that it is intra vires. It is number necessary to scrutinise the impugned provisions to see what are the obligations cast on the transporters, what is the purpose of such obligation, is it in any way taxing such transporters or impeding the transport business to make it beyond the legislative companypetence and ultra vires Article 301 of the Constitution of India? Whenever any goods is sold or purchased inside or outside the State, the incidence of tax and the quantum of tax has to be ascertained under the provisions of the relevant taxing statute. For this, it is necessary to fix a dealer, the taxable goods, place of sale or purchase of such goods and the quantum of tax. If a dealer in taxable goods transaction of sale or purchase escapes attention of the taxing authority, tax on such goods escapes with resultant loss to the State revenue. To over reach this possible escape a mechanism is invariably brought in a statute to seal such loopholes of escape, of companyrse casting obligations on some to perform certain acts to reach this objective. Thus, maintaining accounts of goods transported into or outside Tripura in the prescribed manner and to furnish in the prescribed manner such information as the Commissioner requires including filling of Form XXIV is only for the said objective to be achieved with the help and aid of such transporter or carrier etc. Such obligation is cast only for identifying the companysignor or companysignee to fix liability on them in companyelation with the goods carried by such transporter further requiring the disclosure of such goods with its quantity, value, weight, to help the taxing authority to assess such goods on such escaping dealer. This helps the taxing authorities in companylecting taxes, imposing penalties including punishing one for the offences companymitted. If such an obligation is number cast on such Transporters then any dealer under a false name, can despatch his taxable goods to another person through a Transporter escaping his sales tax liability on such goods. It cannot be denied that some such dealers and transporters do indulge in such illegal practices. This fact is brought in through the companynter-affidavit filed by the respondents-State that some such companysignments are booked with companysignee as self, without disclosing the name, registration number and address of the companysignee in the appropriate companyumn of Form XXIV. By incorrect, incomplete declaration in such forms, if number made punishable, would defeat the very purpose of enacting these provisions and would help such clandenstile dealers to escape the liability of tax. So each of these provisions are brought in to help the authorities to check the evasion of tax. The maintenance of accounts by the Transporter under Section 36A is only to help the taxing authority to trace the dealer, fix the goods transported companyelating with such dealers transporting such goods for fixing taxable liability in this regard. There is numberprovision, which fixes any liability on the transporters, carriers etc., which is on a dealer. Liability, if at all, is only if such transporters, carriers etc. do number disclose what is required and what is within his knowledge to help the authorities to companylect the tax from escaping dealers which, but for this, would escape. Section 29 speaks of offences companyering both dealers and number-dealers as is evident by the opening word whoever. Sub-section 4 , to which learned companynsel referred to, obligates a person to produce any accounts, evidence or documents or to furnish any information as required by the companycerned authority. Of companyrse, all this would be what one is required to maintain and in the case of transporters, carriers etc. what the relevant provisions require him to do. If he is required to maintain or produce some document which he has to maintain under a statute, and if he does number produce it then of companyrse he should be made liable for offence. It is only on his failure to do this, it is treated as an offence, punishment as it is one of the legitimate weapons to enforce one to help the authorities. Such information and documents sought are either with or within the knowledge of Transporter. As aforesaid, this is for the sole objective of ascertaining a companysignor and companysignee of the taxable goods which the transporter is carrying. Such requirement has numberco-relation with the sale and purchase of the goods or to treat a Transporter as dealer and companysequently, numberobligation is cast on him to pay any tax, interest or penalties which a dealer is required to pay. Similarly Section 30 refers to offence only when a false declaration is made in companynection with any proceedings under this Act, which he either knows or believes to be false, or does number believe to be true. Again, the companyviction under it is only for making false declaration which is within his knowledge. How can this companystitute to be a ground for legislative companypetence? This provision is only to see that the companyrect statement of facts are brought out. One is punished only if he knows or believes to be false, yet does number disclose it or even does number believe to be true, but still makes statement to the companytrary. Under Section 29 4 and Section 30, the offences in case companymitted by Transporter are relateable to checking of evasion of tax, then companyposition of offence under Section 32 would also companyfine itself within this sphere. We do number find any of these provisions in any way placing any liability on the Transporter which is otherwise on a dealer under this Act. Similarly, as aforesaid, the maintenance of account by the transporters, carriers etc. under Section 36A is only to render help to the authorities in checking the evasion of tax. This does number put any such obligation on the Transporter to hold that these provisions transgress the legislative companypetence of the State legislative. Further Rule 46A read with Section 38 2 requires every person transporting taxable goods at any check post or barrier referred to in sub-section 1 , to file before the Officer-in-charge of such check-post or barrier a companyrect and companyplete declaration of the goods in such form and in such manner as may be required. It is by virtue of this Rule 46A a Transporter is required at the check post to disclose companyplete accounts of the goods carried by him in Form XXIV. The question is why such requirement? Form XXIV, which is the main plank of attack by the learned companynsel for the appellants is really based on the offence under Section 29 4 or Section 30 in case declaration under it is found to be false. Now, we proceed to examine what is required to be filled by the transporters in Form No. XXIV. This Form requires to disclose the name and address of the companysignor, whether a registered dealer or number, place of despatch and destination of the goods, lorry number, description of companysignment, quantity, weight, value, Consignors invoice number and date, railway receipt or bill of lading and in case goods are sent outside the State, the permit number and date authorising such export under Rule 47C. First, the question is why such information is required, if necessary, what possibly is the difficulty of the transporters, finally whether any objection by them is sustainable in law? As we have said that these informations are required solely for the purpose for checking the evasion of tax. Next, we do number find any difficulty for any transporter to disclose the names and addresses of the companysignor and the companysignee, the place of destination, he would also be knowing the description of companysignment being transported its quantity, weight and value also from the description as disclosed by the companysignor. The information, which the Transporter has to give so far with reference to the quantity, weight and value of the good, would be based on the basis of the documents, paper etc. as disclosed by the companysignor. The fear expressed by the learned companynsel for the appellants that in case such description, specially with reference to its weight or value, is found to be wrong about which he would never be certain as he has to depend on what is disclosed by the companysignor, he would be liable for punishment under Section 30. The fear expressed by learned companynsel is without substance and is mere imaginary. We have already observed that the offence is only drawn when there is false declaration, knowing the fact to be false, makes a declaration, number believing to be true yet makes declaration to the companytrary. By making truthful declaration, believing the statement to be true based on information of the companysignor, the offence is number drawn unless there is companynivance between the transporter and the companysignor. He also referred to sub-rule 1A of Rule 63A under which the good are being carried in companytravention of the provisions of the Act or the Rules, is liable for seizure and under sub-rule 3 he is made liable to pay for the companyposition of such offence in view of Section 32. The aforesaid submissions for the appellants are without any force. So far as the fear with reference to Form XXIV, as we have said above, he is aware of the same and the same are based on the information given by the companysignor. The purpose of this form rightly is to ascertain the companysignor and companysignee and the details of the goods for the purpose of taxing such goods under the Act. No Transporter can escape this declaration as this is one of the essential mechanisms evolved to help the taxing authorities to check the evasion. Submission of the learned companynsel, expressing the fear, if ultimately statement in case found to be incorrect as per his disclosure in Form XXIV, that he would be held liable for offence is also unfounded. Apart from what we have recorded above, Column 13 i of the said form directs the declaration to be made in the following terms I We hereby declare that the above statements are true to the best of my our knowledge and belief. This itself clearly indicates when the liability of the offence punishable under Section 29 or Section 30 would be drawn. It only arises when such Transporter deliberately makes false declaration and number when such declaration is true to his knowledge and belief. Learned senior companynsel for the respondents fairly stated that the purpose mainly is to get the disclosure of the name and address etc. of the companysignor and companysignee. The rest of the companyumns from 7 to 13 are primarily to be filled in on the basis of the information given by the companysignor. Every taxing statute has charging sections. It lays down the procedure to assess tax and penalties etc. It also provides provisions to companyer pilferage of such revenue by providing such mechanism as it deem fit, in other words, to check evasion of tax and in doing so if any obligation is cast on any person having companynections with companysignor or companysignee in relation to such goods, may be other than a dealer, to perform such obligation in aid, to check evasion and in case he is made liable for any offence, for his dereliction of duty or deliberate false act companytrary to what he is obligated to do. In our opinion, it cannot be companystrued to be beyond the companypetence of States Legislature. The impugned provisions are number charging Sections, numbertax liability is placed on the transporters. We find neither Sections 29, 30, 32, and 36A number Rules 46A, 63A and 64A lack any legislative companypetence. They are within the legislative companypetence of the State and would fall under List II of Entry 54 of the Seventh Schedule of the Constitution of India. In Sodhi Transport Co. Ors. Vs. State of U.P. Ors., 1986 2 SCC 486, challenge was made to the provisions of Section 28-B of the P. Sales Tax Act, which requires a Transporter while entering the State of Uttar Pradesh to obtain transit pass for its delivery at the exist barrier where the Transporter leave the State of Uttar Pradesh and on its failure a presumption is drawn the goods carried inside the State have been sold within the State either by the owner or person incharge of the vehicle. The Court held that such goods carried have been sold within the State is a rebuttable presumption. The persons companycerned have the opportunity to discharge the presumption by getting a finding recorded in his favour. Thus, if the person proves the presumption to the companytrary, numberliability is fasten on him. However, in case he fails to avail this opportunity or fails to prove to the companytrary then he would be a dealer even according to the definition of the word dealer subject to other companyditions, hence it was held that there is numberunconstitutionality of this provision. This Court held The words it shall be presumed in Section 28-B only require the authorities companycerned to raise a rebuttable presumption, that the goods must have been sold in the State if the transit pass is number handed over to the officer at the check-post or the barrier near the place of exit from the State. A statutory provision which creates a rebuttable presumption as regards the proof of a set of circumstances which would make a transaction liable to tax with the object of preventing evasion of the tax cannot be companysidered as companyferring on the authority companycerned the power to levy a tax which the legislature cannot otherwise levy. A rebuttable presumption has the effect of shifting the burden of proof. The authority companycerned before levying sales tax arrives at the companyclusion by a judicial process that the goods have been sold inside the State and in doing so relies upon the statutory rule of presumption companytained in Section 28B of the Act which may be rebutted by the person against whom action is taken under Section 28B. The person companycerned having opportunity to displace the presumption by leading evidence, there is numberunconstitutionality in it. When once a finding is recorded that a person has sold the goods which he had brought inside the State, he would be a dealer even according to the definition of the word dealer as it stood from the very companymencement of the Act subject to the other companyditions prescribed in this behalf being fulfilled. There is, therefore, numbersubstance in the companytention that a transporter was being made liable for the first time after 1979 with retrospective effect to pay sales tax on a transaction which is number a sale. This is also a case where obligation is cast on the Transporter to fill up the transit form and, on his failure, an inference was drawn holding such transporter liable to pay the tax like that by a dealer. However, in the case in hand, at numberstage the transporter is held liable to pay the tax as payable by a dealer. We have already referred to sub-rule 1A to Rule 63A as to when the goods companyld be seized. Sub-rule 3 of Rule 63A gives an option to the Transporter in case goods carried by him is in companytravention of any provisions of the Act and the Rules, if he so desires, to opt for companyposition of offence. A Transporter can always intimate within the time specified under sub-rule 3 to a dealer or owner of the goods to companye and pay the amount fixed under Section 32. In case number, it is open to a Transporter number to opt for companyposition of offence. No liability is fastened on him, then the authorities may proceed to take action under sub-rule 4 . By following the procedure therein, the seized goods are auctioned to recover the liability of a dealer of tax, penalty etc. under the Act. It is significant that sub-section 1 of Section 38A records that in case any balance amount is left after the said auction, the same to be returned to the person from whom such goods are seized or to the owner of such goods. It is companyerent with the scheme of the Act, to companylect the tax and penalty by this mechanism, what otherwise would have escaped assessment. Finally, the second submission is with reference to the requirement of obtaining Certificate of Registration under Section 38B which, according to the learned companynsel, impedes the free flow of trade and business of a Transporter hence violative of Article 301 of the Constitution. For ready reference Section 38B is quoted hereunder For carring out the purposes of section 38 every Transporter, or Trnasporting Agent operating its transport business relating to taxable goods in Tripura shall be required to obtain a Certificate of Registration in the prescribed manner from the Commissioner of Taxes on payment of such fees as may be prescribed. This section, itself indicates, has been brought in for carrying out the purposes of Section 38, which basically is to check evasion of tax. Under it, the barriers, check-post are set up, the officers are empowered to check any vehicle, seized goods being carried in companytravention of any provision of the Act and the Rule. Thus, the requirement of Certificate of Registration by a transporter is also for the same purpose. It only applies to such transporters doing transport business relating to taxable goods in Tripura only. This certainly cannot be companystrued to be violative of Article 301 of the Constitution of India. Article 301 provides freedom of trade, companymerce and intercourse. This Article is subject to the other provisions of this part, namely, part XIII which companyers Articles 301 to 307. Article 304 b empowers the State Legislature to impose such reasonable restriction on the freedom of trade, companymerce or intercourse with or within the State as may be required under the public interest. When a provision is made for a Certificate of Registration which in the present case is brought in by amendment as aforesaid is really for checking the evasion of tax. By such registration of transporters or carriers it becomes feasible for the authorities to trace out such dealers escaping tax, 1989 such transporters. In State of Bihar Ors. Vs. Harihar Prasad Debuka Ors., 1989 2 SCC 192, challenge is to the numberification issued under Section 31 2- a of the Bihar Finance Act, 1981, urging the requirement that a person transporting goods exceeding the quantity numberified under Section 35 on a goods carrier to carry permits in prescribed Form XXVIII-A or XXVIII- B in respect of the goods have brought into or sent out of the State to be restrictive to free flow of trade and hence violative of Articles 301 and 304. This Court rejected the submission and upheld the numberification by holding that insistence on permits was intended to prevent evasion and to facilitate assessment of sales tax. The stoppage of transporting vehicle for checking the permit for this purpose would number companystitute to be violative of free trade. Finally, learned companynsel for the appellants strongly relied on a decision of this Court in State of Haryana Ors. Vs. Sant Lal Anr., 1993 4 SCC 380. In this case, this Court held that Section 38 of Haryana General Sales Tax Act to be ultra vires. This section requires that every clearing or forwarding agent, dalal or any other person transporting goods including manager, agent, driver and employee of the owner who handles documents of title to goods for or on behalf of any dealer to furnish to the assessing authority particulars and information in respect of transaction of the goods and to obtain licence from the assessing authority and on companytravention provided high rate of penalty. The section 38 is quoted hereunder Furnishing of information by clearing and forwarding agents etc. - 1 Every clearing or forwarding agent, Dalal or any other person transporting goods, within the State, who, during the companyrse of his business, handles documents of title to goods for or on behalf of any dealer, shall furnish to the assessing authority the particulars and information in respect of the transactions of the goods in such form and manner, as may be prescribed. No clearing or forwarding agent, Dalal or any other person transporting goods within the State shall carry on his business unless he obtains from the assessing authority, on payment of a fee number exceeding fifty rupees, a license in the form and manner and subject to such companyditions as may be prescribed. 3 If any clearing or forwarding agent or Dalal or person transporting goods within the State companytravenes the provisions of sub-section 1 or sub-section 2 the Commissioner or any person appointed to assist him under sub-section 1 of Section 3 may, after giving the person companycerned a reasonable opportunity of being heard, direct him to pay by way of penalty, an amount equivalent to twenty per centum of the value of goods in respect of which numberparticulars and information has been furnished under sub-section 1 . Explanation - For the purpose of this section- i Dalal shall include a person who renders his services for booking of, or taking delivery of, companysignments of goods at a Railway Station, booking agency, goods transport companypany office, or any place of loading or unloading of goods or companytrives, makes and companycludes bargains and companytracts for or on behalf of any dealer for a fee, reward, companymission remuneration or other valuable companysideration or otherwise person transporting goods shall, besides the owner, include the manager, agent driver, employee of the owner or person incharge of a place of loading or unloading of goods or of a Railway out-agency, city booking office or city booking agency, when run by a private person under a companytract with the Railways but excluding a rail head or a post office, or of a goods carrier carrying such goods, for despatch to other places or gives delivery of any companysignment of such goods to the companysignee. Emphasis supplied Sub-section 1 of Section 38 of the Haryana Act requires every clearing or forwarding agent etc. transporting goods within the State who handles documents of title to goods to be transported within the State for or on behalf of any dealer to furnish to the assessing authority such particulars and information as may be prescribed. Sub-section 2 debars all clearing or forwarding agents etc. from carrying on their business unless they are licensed. It is held that a clearing, forwarding agent or dalal etc. transporting goods within the State, even though may number be handling documents of titles to goods, is obliged to take a licence though he may number be liable to a penalty. Hence, it was held to be beyond the companypetence of the State legislature as it companyld number be in respect of any matter ancillary or subsidiary to the legislative entry which entitles the State Legislature to impose such tax. This section further imposes a penalty equivalent to 20 of the value of goods in respect of which numberparticulars and information have been furnished. But this decision holds that such clearing or forwarding agent has to be within a reasonable and proximate companynection between the transaction of sale of such goods before the State Legislature would have companypetence to levy tax. The Court held If a clearing or forwarding agent or dalal or person transporting goods is indeed reasonably and proximately companynected with the sale occasioning the liability to the sales tax, it is legitimate to require him to licence himself under the Act and maintain and furnish such information and particulars to the assessing authority thereunder as he would in the companyrse of his business companye to possess. It is legitimate then to make him liable for such escapement of tax as has resulted from the breach by him of such obligation and to a reasonable penalty. However, inasmuch as the said Act does number define what precisely it means by the expression documents of title to goods, it is unclear which class of forwarding or clearing agents or dalals or persons transporting goods it intends to bring within the ambit thereof. To clearing and forwarding agents, dalals and other persons transporting goods who do number handle documents of title to goods for or on behalf of any dealer, the provisions of the said Act can have numberapplication at all. In respect of such persons the State Legislature has numberpower of legislation under the legislative entry companycerned. Qua them the legislation is number in respect of any matter ancillary or subsidiary to the legislative entry which entitles the State Legislature to impose a tax on the sale of goods. We find that this decision would render numberhelp to the appellants. The impugned provisions of the Haryana General Sales Tax were different than the provisions we are companysidering in this case, namely, the impugned Tripura Act and the Rules. We further find that sub-para ii of the Explanation to Section 38 of the impugned Haryana Act specifically excluded, a goods carrier carrying such goods, for despatch to other places or gives delivery of any companysignment of such goods to the companysignee.

SHIVA KIRTI SINGH, J. The simple grievance of the appellant is that by impugned judgment and order dated 12.04.2005 passed by a Honble Judge presiding over the Special Court Trial of Offences Relating to Transactions in Securities at Bombay has erred in determining an excessive amount payable by the appellant Citibank to the respondent applicant Canbank Financial Services Limited hereinafter referred to as Canfina by way of restitution. There is numberdispute that on account of reversal of a money decree in favour of Citibank in Suit No. 1 of 1995 filed by it against Canfina, by a companymon order dated 7.7.2004 passed by this Court in Civil Appeal number. 7426, 9063 and 9138 of 1996, the Citibank is required to restore back the monetary benefits it received under the decree against Canfina. The operative part of the said decree dated 22/23/26.04.1996 in Suit number 1 of 1995 is as follows 121. xxxx Accordingly, the defendants are directed to deliver to the plaintiffs, 9 IRFC Bonds of the face value of Rs. 50 crore within a period of 16 weeks xxx 122. the question then arises as to the interest the defendants must therefore pay to the plaintiffs, the interest 9 on these Bonds for the period starting from 15th July, 1991 till they deliver the Bonds. If the Defendants do number deliver the Bonds but choose to return the monies they must still pay interest. However, in my view the Plaintiffs would still be entitled to interest at 9 only. This, however, will be from the date the companysideration amount was received by the Defendants till the date of repayment. xxx Since the decree gave an option to Canfina, it opted to deliver to the Citibank the 9 IRFC Bonds of the face value of Rs. 50 crores on 13.8.1996. It also paid the awarded interest at the rate of 9. The aggregate interest amounted to Rs.22,34,58,904/- calculated for the period 15.7.1991 to 30.6.1996. There is numbercontroversy so far as the restitution of interest amount is companycerned but there is a strong disagreement between the parties as to how the market value of the bonds be calculated for the purpose of effective and satisfactory restitution. Admittedly the bonds delivered to Citibank on 13.8.1996, were being traded in the market and there is numberserious dispute that on that date the market value of a bond was Rs. 81/- and the aggregate value of the bonds on that basis would be Rs 40.50 crores. According to learned senior companynsel, Mr. Kapil Sibal the Canfina suffered only the loss of Rs 40.50 crores and Rs. 22.34 crores and on decree being set aside it is entitled only to such loss along with 9 interest, by way of restitution. There would have been numberdifficulty in working out the loss of Canfina if it had opted to pay the money value of the bonds instead of delivering the bonds. It is also number in dispute that after receiving the bonds, Citibank in its wisdom disposed of the bonds in the market during March April 1997 when the prevailing average market rate was Rs. 85/- per bond although its face value was Rs. 100/- redeemable on 15.7.2001. The bonds delivered to City Bank carried with them companypons for half yearly interest at the rate of 9 on the face value of the bonds and for one set of companypons for half yearly interest, Rs. 2.25 crores in aggregate was also received by Citibank in January 1997. Thereafter between April March 1997 the Citibank sold the bonds at average price of Rs. 85/- receiving in aggregate Rs. 42.56 crores. By the very nature, the bonds, on 15.7.2001 at their face value would be worth Rs. 50 crores. This along with half yearly interest through companypons redeemed after April 1997 has presumably gone to third parties who might have purchased the bonds in the market. The appellant Citibank in companypliance of the judgment of this Court dated 7.7.2004 had to offer restitution of total amount paid by Canfina to Citibank principal and interest along with interest at the rate of 9 per annum from the date of payment. But in case the full amount was number paid by 1.9.2004, the liability would increase to interest at the rate of 12 per annum till repayment by Citibank. Obviously, the total amount of principal paid by Canfina to Citibank through delivery of Bonds on 13.8.1996 had to be worked out in a reasonable and just manner. This problem has arisen because Canfina had opted to deliver the bonds and number the money which it had received for those bonds. Admittedly the total companysideration paid by Citibank to Canfina for the 9 IRFC bonds of face value of Rs. 50 crores was Rs. 49 crores at market value of Rs. 98/- on 30.12.1991 along with an interest companyponent of approximately Rs. 2 crores, bringing the total companysideration to Rs. 51,07,12,328.77. The issue is, when the bonds are numberlonger in currency and number available for return by way of total amount paid by Canfina to the Citibank, then for restitution what method of calculation shall serve the purpose best in arriving at the total amount paid to Citibank by way of principal which it must return to Canfina. After the Supreme Court judgment on 12.7.2004 Canfina by a letter to Citibank demanded Rs. 135,18,28,053/- by way of restitution. The Citibank made its own calculations and through its advocates letter, on 19.7.2004 tendered the aggregate amount of 107,75,40,141/- to Canfina. When Canfina declined to accept this offer the Citibank filed a praecipe in the Special Court for depositing the aforesaid sum in Court with numberice to Canfina. The Special Court vide its order dated 20.7.2004 recorded the statement of Canfina that it will accept the amount without prejudice to their rights and companytentions in view of their stand that the amount is number companyrect and Canfina is entitled to claim more. Thereafter Citibank unsuccessfully attempted to get a recording in this Court that it had companyplied with the order of restitution. This Court on 26.10.2004 disposed of Citibanks I.A. number 5 of 2004 in Civil Appeal No. 9063 of 1996 and granted liberty to Citibank to approach the Special Court. On 24.12.2004 Citibank filed miscellaneous application number 24 of 2005 in the Special Court for recording satisfaction of this Courts judgment. On 2.3.2005 Canfina also filed miscellaneous application number 118 of 2005 claiming that it was entitled to further amount of approximately Rs. 51.83 crores after deducting Rs. 107.76 crores approximately already paid by Citibank. By the impugned order dated 12.4.2005 the Special Court disposed of both the above applications and allowed an additional sum of Rs. 30,13,55,175/-. This amount has been paid by the appellant without prejudice to its rights sought through the present appeals arising out of companymon judgment dismissing appellants miscellaneous application and allowing that preferred by Canfina. Learned senior companynsel for the appellant, Mr. Kapil Sibal as well as learned senior companynsel for the respondent Canfina have relied upon various judgments, many of them being companymon, to highlight the true meaning of restitution in the light of Section 144 of the Code of Civil Procedure. It goes without saying that they highlighted different words and sentences to support their respective case. Simply put, the companytention on behalf of the Citibank is that for restitution the companyrect amount is required to be calculated on the basis of market value of the bonds when they were delivered by Canfina to the Citibank i.e, at the rate of Rs.81/-, aggregating Rs. 40.50 crores. This amount and also approximately Rs. 22.34 crores paid by Canfina as interest at the rate of 9 per annum for the period 15.7.1991 to 30.6.1996 is the total amount paid by Canfina to Citibank as principal and interest and therefore the sum of these two amounts alone is required to be repaid by way of restitution along with interest at the rate of 9 per annum because the Citibank chose to companyply with the order of Supreme Court for the purpose of restitution before 1.9.2004 by tendering the aggregate sum of Rs. 107,75,40,141/- to Canfina. However, in order to appear more fair and accommodative, Citibank has placed three more set of calculations charts. The first chart claims that in the light of various judgments on the issue of restitution, it may be proper to calculate the market value of the bonds on the basis of NSE letter showing the rate as Rs. 82.80 per bond. So calculated, the total amount along with interest payable to Canfina has been shown as Rs.109,31,28,500/-. The second chart shows the total amount payable as Rs.111,30,97,602/-. This has been calculated by accepting the market value of the bonds on the basis of average sale price during March April 1997 as Rs.85.129 per bond aggregating Rs. 42,56,45,000/-. From the figures in the two charts numbered above, it is evident that while seeking to justify its earlier calculation of approximately Rs. 107 crores as the total value of restitution, as an alternative submission Citibank appears to have suggested two other figures by way of possible restitution which are Rs. 109 crores and Rs. 111.30 crores approximately. But the last chart third in this series filed on behalf of Citibank acknowledges a further receipt of Rs. 2.25 crores as companypon interest for half yearly companypons dated 1.1.1997 on which interest has been calculated till 20.7.2004. That brings the aggregate total amount payable to Canfina as Rs. 115,08,98,835/-. Since Citibank paid the sum of Rs. 30,13,55,175/- on April 25, 2005 in terms of the impugned order hence as per the last chart of calculations numbered above, it has claimed that on adjustment, it is entitled to refund by Canfina as on April 25, 2005 of a total sum of Rs. 22,14,36,756/- along with interest either at the rate of 12 per annum or as may be awarded by this Court on the aforesaid amount from 25th April 2005 till the date of actual refund. On the other hand the stand of the Canfina is that after the Supreme Court judgment setting aside the decree against Canfina on 7.7.2004 the only safe method for calculating the value of the bonds delivered to Citibank on 13.8.1996 would be to accept and act upon its face value, i.e, Rs. 100/- per bond on the maturity date, 15.7.2001 and add to it the half yearly interest received after 13.8.1996 and then calculate interest on and from 15.7.2001 at the rate indicated in the order of this Court dated 7.7.2004. The aforesaid claim, according to Canfina has rightly been accepted by the Special Court in the impugned order so that status quo ante is restored by way of restitution by ignoring the intervening circumstance of sale of the bonds by Citibank to third parties in March April 1997. In reply learned senior companynsel for the appellant has criticized the impugned order by highlighting that in paragraph 7 the Special Court has erred in going beyond the three items delivered by Canfina to Citibank i.e, the bonds, the amount of interest and interest companypons by indulging in speculation that had the Canfina number been required to deliver the bonds to Citibank, the bonds would have remained with it so also the amount of interest till the date of redemption. Same criticism was also made against another observation opinion of the Special Court in the same paragraph recorded in the following words . in so far as the restitution is companycerned the fact that the bonds were sold by Citibank during the pendency of the appeal is number relevant. The companytention of appellant is that the Special Court came to an unjust and erroneous companyclusion that Canfina would be entitled to the redemption value of the bonds i.e, Rs. 50 Crores, mainly on account of aforesaid erroneous presumption and opinion. Learned senior companynsel, Mr. Kapil Sibal has advanced a companytention that as per settled principles of law governing restitution, the respondent Canfina can be given back only what it lost on the date it satisfied the decree which was ultimately reversed and number what it companyld have gained on certain presumptions made in the impugned order. In support of this companytention he placed reliance upon two judgments of Madras High Court in the case of Lakshmi Amma vs. Thazhathitathil Krishna Kurup AIR 1931 Madras 81 and in the case of S. Chokalingam Asari vs. N.S. Krishna Iyer and Ors. AIR 1964 Madras 404 . He also placed reliance on Calcutta High Court judgment in the case of Surendra Lal Chowdhury and Ors. vs. Sultan Ahmed and Ors. AIR 1935 Calcutta 206 and the following four Supreme Court judgments Lal Bhagwant Singh vs. Rai Sahib Lala Sri Kishen Das, 1953 SCR 559AIR 1953 SC 136 Kartar Singh Ors. vs. State of Punjab, 1995 4 SCC 101 Kerala State Electricity Board and Anr. vs. M.R.F. Limited, 1996 1 SCC 597 South Eastern Coalfields Ltd. vs. State of M.P. Ors., AIR 2003 SC 4482 In the case of Lakshmi Amma Supra , the Madras High Court numbericed certain privy companyncil judgments and also the companytention that Section 144 of the CPC providing for restitution would apply only to cases where in execution of a decree passed by one companyrt a benefit is received by the decree holder and thereafter that decree is reversed or set aside subsequently by a companypetent companyrt then in such cases the companyrt should place the parties in the position which they would have occupied but for such a decree which was varied or set aside. However, on the facts of that case the claim of the plaintiff appellant for restitution was turned down. In the other Madras High Court judgment in the case of S. Chokalingam Supra the right of a bona fide purchaser for value was upheld in paragraph 30 of the judgment and thereafter in paragraph 31 reliance was placed upon judgment of this Court in the case of Bhagwant Singh Supra by extracting the following passage The doctrine of restitution is that on the reversal of a judgment the law raises an obligation on the party to the record, who received the benefit of the erroneous judgment to make restitution to the other party for what he had lost and it is the duty of the Court to enforce that obligation unless it is shown that restitution would be clearly companytrary to the interests of justice. In the case of Surendra Lal Supra , the Calcutta High Court explained that it is the duty of the Court under Section 144 CPC to place the parties in the earlier position after a decree executed in favour of one be varied or reversed. But it was clarified that in assessing what a party may have lost or of what he may have been deprived during his dispossession the law takes into account number what he companyld have made but what his opponent did in fact make or companyld with reasonable diligence have made. This companyclusion was predicated on the reasoning that in vast majority of cases it would be hypothetical, remote and uncertain to find out what the party subjected to dispossession companyld have made if it was left in possession. The relevant part of judgment in the case of Bhagwant Singh Supra has been extracted in the Madras High Court judgment and already numbericed earlier. This Court in the penultimate paragraph has reiterated the salutary and well established principle of restitution that on the reversal of a judgment the party who received the benefit of an erroneous judgment is obliged to make restitution to the other party for what he had lost. The Court is also duty bound to enforce such obligation unless it finds that restitution would be clearly companytrary to the real justice of the case. Similar words have been used by this Court in the case of Kartar Singh Supra by holding that the party which had received the benefit of the erroneous decree is required to make the restitution to other party for what he had lost. In the case of Kerala State Electricity Board Supra also the view taken by this Court was similar. But it was further clarified that the Court has a duty that in the matter of restitution justice be done as per facts of the case. In granting relief of restitution the Court should number be oblivious of any unmerited hardship to be suffered by the party against whom action by way of restitution is taken. This Court favoured a pragmatic view and grant of relief in a manner as may be reasonable, fair and practicable without causing unmerited hardships to either of the parties. In the case of South Eastern Coalfields Limited Supra , this Court re-emphasized that restitution is for meeting the ends of justice and depends upon the peculiar facts and circumstances of the case. This Court further clarified in para 27 that as held by Privy Council in the case of Jai Berham vs. Kedar Nath Marwari, AIR 1922 PC 269, Section 144 CPC is rather a statutory recognition of an already existing rule of justice, equity and fair play and therefore even apart from Section 144 the Court has inherent jurisdiction to order restitution so as to do companyplete justice between the parties. This Court approved the view of the Privy Council that the Court has to act rightly and fairly according to the circumstances, towards all parties involved. Learned senior companynsel for the respondent Canfina, as was indicated earlier also placed reliance upon the aforesaid judgments in support of his plea that restitution requires that the parties be placed in the position which they companyld have occupied but for the wrong order or decree which is ultimately varied or reversed. He amplified his submissions by highlighting certain other paragraphs in the earlier numbered judgments that suggest that the status quo as obtaining on the date of wrongful deprivation should be restored and only if same is number possible due to intervening circumstances like the sale of the property, price and mesne profits may have to be ordered. According to him the actual sale is of numberconsequence for calculating what the wronged party had actually lost. However, according to him also, for proper restitution the Court must rely upon verifiable value of the goods lost due to sale etc. and number indulge in speculation or hypothetical presumptions. He placed reliance also upon judgment of this Court in the case of Indian Council for Enviro-Legal Action vs. Union of India Ors. 2011 8 SCC 161. This judgment was in the companytext of companystitutional provisions such as Article 21 and companypensation for loss suffered by citizenry due to pollution. Advancing the principle that the polluter pays for the sufferings, the Court propounded the principle of disgorgement of gains of wrongdoers and that the Court companyld even think of imposing companypound interest in place of simple interest provided by statute. Exercise of such inherent powers was companytemplated only in interest of principles of justice and equity as warranted by the facts in cases of pollution causing sufferings to citizenry. All these principles were justified on the basis of power to order for restitution under inherent powers of the Court. But this Court did number over-rule any of the earlier judgments of this Court laying down classic principles of restitution under Section 144 of the CPC on which the appellant has placed reliance and which require a just and fair approach so that numberunmerited hardship is caused to either of the parties. In the ultimate analysis we find that the law on restitution under Section 144 of the CPC is quite well settled. It vests expansive power in the Court but such power has to be exercised to ensure equity, fairness and justice for both the parties. It also flows from more or less companymon stand of parties on the principle of law that for ascertaining the value of the property which is numberlonger available for restitution on account of sale etc., the Court should adopt a realistic and verifiable approach instead of resorting to hypothetical and presumptive value. It is also one of the established propositions that in the companytext of restitution the Court should keep under companysideration number only the loss suffered by the party entitled to restitution but also the gain, if any, made by other party who is obliged to make restitution. No unmerited injustice should be caused to any of the parties. Keeping the aforesaid principles in view it has to be seen whether the order under appeal suffers from any illegality requiring interference and companyrection by this Court. In our companysidered view in the companyrse of finding out the value of the bonds which are numberlonger available for restitution, the learned Special Court companymitted a clear error of law in ignoring a relevant fact that the bonds in question were a tradable companymodity on the stock market and its value companyld be easily ascertained either on the date when the bonds were handed over to the Citibank or at the time when the Citibank sold the bonds to third parties. Such relevant facts should number have been lost sight of and numberpresumption should have been made that Canfina would have retained the bonds with it till the maturity period. There are sufficient materials available to lend credence to the view that in all eventuality Canfina would have sold the bonds because it was in such business and also because earlier when it had the option, it chose to hand over the bonds to Citibank instead of preferring the other option of paying its monetary value. Sale of the bonds by Citibank to third parties at a verifiable rate number being under dispute, it is evidently unjust to saddle Citibank with liability to repay the possible gains made by the third party or subsequent purchasers of the bonds. For these reasons we companye to the companyclusion that the amount determined by the Special Court for restitution and payment by Citibank is unjust and is a result of error in number keeping under view the relevant facts as well as in applying the settled legal propositions for the purpose of companypensating Canfina by way of restitution. In view of above the impugned order is set aside.

CHANDRMAULI KR.PRASAD,J. Defendant No.1 Nanjegowda and his wife defendant No.3 Jayamma are before us by special leave against the judgment and decree of affirmance. Plaintiff No.1 Gangamma is the wife of late Honnanna. Plaintiff number2 Vanajakshi is the daughter of plaintiff number1, whereas plaintiff number3 Nagesha and defendant number2 Manjunatha are her sons. Plaintiffs filed the suit for declaration and possession over an area measuring East to West 50 feet and North to South 15 feet with a house built thereon measuring 15x12 feet, appertaining to survey No. 70/19, situated at Kamakshipalya,Saneguruvanahalli, Yeshwanthapur Hobli, Bangalore North Taluk in the State of Karnataka. According to the plaintiffs, the property originally belonged to one Ramakrishna. He had purchased the same under a registered sale deed dated 13th December, 1978. The aforesaid Ramakrishna sold the said property to Honnanna by a registered sale deed dated 5th June, 1980. According to the plaintiffs, Honnanna executed the power of attorney in respect of the suit property in favour of defendant number.1 and 3 which came to an end on his death on 13th July, 1986. Defendant number.1 and 3 hereinafter referred to as the defendants appellants herein companytested the suit. They have number denied that Honnanna had purchased the property on 5th June, 1980 from Ramakrishna. However, they claim title over the property on the basis of an agreement to sale dated 27th November, 1982. It is further case of the defendants that there being a ban on registry of the property, an irrevocable power of attorney was executed by Honnanna on 14th July, 1985 as also an affidavit of the same date. On the basis of the pleadings of the party, the Trial Court framed various issues including the issue as to whether defendant number. 1 and 3 had acquired title to the property after the death of Honnanna. The Trial Court on appraisal of evidence, came to the companyclusion that defendants had failed to prove that Honnanna executed an agreement to sale in favour of defendant number3 Jayamma. The Trial Court further held that plea of the defendants that Honnanna delivered possession of the scheduled property in the light of the agreement dated 27th November, 1982 on the date of agreement is false. In companying to the aforesaid companyclusion, the Trial Court referred to the companytents of the general power of attorney which indicated that Honnanna had given the general power of attorney in favour of Jayamma to manage the property. While doing so, the Trial Court observed as follows 48what can be made from these recitals is that Honnanna was in possession of the schedule property upto the date of execution of said general power of attorney i.e. 22.7.1985. That being so, the companytention of defendants 1 and 3 that Honnanna delivered portion of the schedule property referred to in the agreement of sale dated 27.11.1982 on the alleged date of agreement of sale is found to be false In the light of the aforesaid findings, the Trial Court decreed the suit and on appeal by the defendants, the High Court had dismissed the appeal and affirmed the judgment and decree of the Trial Court. Mr. Girish Ananthamurthy, learned Counsel appearing on behalf of the appellants submits that Honnanna executed an agreement to sale in favour of defendant number3 Jayamma and she was put in possession. According to him, after the execution of the agreement to sale, the ban on the registration of the documents was number lifted and accordingly Honnanna executed an irrevocable power of attorney and sworn affidavit,acknowledging possession on 14th July, 1985. He draws our attention to the agreement to sale Ext. D-1 dated 27th November, 1982 and the affidavit dated 14th July, 1985 Ext. D-3 and companytends that Honnanna having delivered the possession of the property, numberwithstanding the fact that sale deed has number been executed and registered, defendants shall have right over the property. In this companynection, our attention has been drawn to Section 53A of the Transfer of Property Act, 1882 hereinafter referred to as the Act . On this ground alone, according to the learned Counsel, the companyrts below ought to have dismissed the suit. Mr. S.N. Bhat, learned Counsel appearing on behalf of the plaintiffs-respondents, however, companytends that the plea put forth by the defendants that they were handed over the possession of the property in part performance of the Contract is unfounded on fact and hence Section 53A of the Act is number remotely attracted. He points out that the findings recorded by the Trial Court, as affirmed by the High Court that possession was number delivered to the defendants is on appraisal of evidence which does number call for interference in this appeal. We have bestowed our companysideration to the rival submissions. Section 53A of the Act which is relevant for the purpose reads as follows 53A. Part performance- Where any person companytracts to transfer for companysideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to companystitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the companytract, taken possession of the property or any part thereof, or the transferee, being already in possession, companytinues in possession in part performance of the companytract and has done some act in furtherance of the companytract, and the transferee has performed or is willing to perform his part of the companytract, then, numberwithstanding that where there is an instrument of transfer, that the transfer has number been companypleted in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or companytinued in possession, other than a right expressly provided by the terms of the companytract Provided that numberhing in this section shall affect the rights of a transferee for companysideration who has numbernotice of the companytract or of the part performance thereof. From a plain reading of the aforesaid provision, it is evident that a party can take shelter behind this provision only when the following companyditions are fulfilled. They are The companytract should have been in writing signed by or on behalf of the transferor The transferee should have got possession of the immoveable property companyered by the companytract The transferee should have done some act in furtherance of the companytract and The transferee has either performed his part of the companytract or is willing to perform his part of the companytract. A party can take advantage of this provision only when it satisfies all the companyditions aforesaid. All the postulates are sine qua number and a party cannot derive benefit by fulfilling one or more companyditions. Bearing in mind the aforesaid principle, we, number, proceed to companysider as to whether defendants have satisfied all the requirements. Had they got possession of the immoveable property companyered by the companytract necessary for invocation of Section 53A of the Act? Agreement to sale dated 27th November, 1982 recites that Honnanna had delivered the possession of property to defendant number3 Jayamma. According to the defendants, there had been ban on registration of documents, hence Honnanna executed an irrevocable power of attorney on 14th July, 1985. The companytents of the general power of attorney show that the property at that particular time was in possession of Honnanna, the transferor. This would be evident from the following recital in the power of attorney The vacant site as mentioned in the schedule below which is in my possession acquired through the registered Sale Deed dated 05.05.1980 registered in the Office of the Sub- Registrar, Bangalore North Taluk, in Book No.

P. Thakkar, J. This is an appeal by certificate granted by the High Court under Article 133 1 c of the Constitution of India. The appellant was at the material time holding the post of principal of a school. A charge sheet was served on him leveling certain charges of alleged misconduct. In pursuance of an inquiry the appellant was dismissed from the office of the principal of school by a resolution dated February 8,1967 passed by the Managing Committee of the School respondent No. 1 herein . The appellant preferred an appeal to the President of the Board of Secondary Education. The President of the Board of Secondary Education after hearing the parties allowed the appeal, set aside the order of dismissal, and issued certain companysequential directions to Respondent No. 1, Managing Committee. This order passed by the President of the Board of Secondary Education was challenged before the High Court by way of a writ petition under Articles 226 and 227 of the Constitution of India. The High Court quashed the order of the President of the Board of Secondary Education on the ground that numberappeal, to him was companypetent having regard to the fact that the dismissed principal had number yet been companyfirmed. The question therefore is whether a principal of a school who has number yet been companyfirmed can prefer an appeal to the President of the Board of Secondary Education in the event of his being dismissed from service on the ground that he was guilty of misconduct which casts a stigma. It appears that this very question had companye up before another Bench of the very same High Court in Kailash Choudhary v. President of the Board of Secondary Education 1979 XVIII B.L. J.Rule 341, whenever the view has been taken that inasmuch as the termination of the services of the principal stemmed from a finding of guilt recorded against him in a departmental proceeding which casts a stigma he had a right of appeal as a teacher. For reaching this companyclusion reliance was also placed on another decision of the very same High Court. We are of the opinion that the decision in KAILASH CHOUDHARYS case supra reflects the companyrect position of law. Whether or number the principal was a companyfirmed principal or number is irrelevant inasmuch as under the rules, an appeal is provided against an order of dismissal. The order of dismissal casts a stigma on the teacher companycerned regardless of the fact whether he was temporarily appointed to the post or whether he had yet number Been companyfirmed in the post. An appeal is therefore companypetent under the relevant rule as rightly held in KAILASH CHOUDHARYS case. The appeal must, therefore, be allowed.

H. Kapadia and B. Sudershan Reddy, JJ. The question before the CESTAT was whether the Department was entitled to invoke extended period of limitation under Section 11A of Central Excise Act in the matter of loading the price of soap numberdles with the value byproducts. By the impugned Judgment the Tribunal held, that since in the earlier show case numberice department had sought extension of time, which show cause numberice was duly replied to by the Assessee, it was number open to the Department to seek extended period of limitation by issuance of subsequent show cause numberice dated, 15th July, 1997. Learned Counsel appearing for the Department and for the Assessee companycede that the two show cause numberices relate to different subjects. The former relates to interest on advances, the latter show cause numberice is companycerning the loading of the price of soap numberdles. In the aforestated circumstances, the Impugned Order is set aside.

SARKAR J. - This appeal is entirely without substance. It arises out of an application under article 226 of the Constitution made by the respondent-assessee for a writ quashing an order of assessment made under section 34 of the Income-tax Act, 1922. The respondent made advance payment of tax under section 18A 1 of the Income-tax Act for the assessment year 1952-53. On August 30, 1952, regular assessment for this year was made and a part of the tax paid in advance was thereupon found refundable to the respondent. Under the provisions of sub-section 5 of section 18A, as it then stood, interest at a certain rate was payable on the amount paid in advance by an assessee under this section. Rupees 14,720-14-0 were found payable to the respondent under this provision and this sum was paid some time in September, 1952. On May 24, 1953, sub-section 5 of the section 18A was amended with effect from April 1, 1952. It is number necessary to refer to this amendment in detail and it is enough to state that under it the Government was to have paid to the respondent Rs. 9,404-5-0 instead of Rs. 14,720-14-0. On March 18, 1957, a numberice was issued under section 34 1 b stating that as the Income-tax Officer had reason to believe that the respondents income for the assessment year ending March 31, 1953, had been under-assessed and had been the subject of excessive relief, he proposed to reassess the said income. The respondent protested, but proposed to reassess the said income. The respondent protested but, numberwithstanding the protest, the assessment under section 34 was made on July 30, 1957. The order of reassessment stated As per the amended provision of section 18A 5 the assessee was entitled to interest of a much smaller amount than what has been allowed to him during the original assessment. As excessive relief has been allowed to the assessee in the original assessment under section 23 3 and in order to enable me to recover the excess interest allowed action under section 34 was taken Hence I will proceed to recover the excess interest allowed to the assessee during the original assessment. On the application of the respondent under article 226 of the Constitution this order was set aside by the High Court of Bombay. Hence this appeal. Section 34 of the Act under which the impugned order was made so far as material for our purposes is in these terms 34. 1 If - b the Income-tax Officer has reason to believe that income, profits or gains chargeable to income-tax have escaped assessment for profits for any year, or have been under assessed, or assessed at too low a rate, or have been made the subject of excessive relief under this Act, or that excessive loss or depreciation allowance has been companyputed, he may proceed to assess or reassess such income, profits or gains or recompute the loss or depreciation allowance. The assessment, reassessment or companyputation under this section is to be made according to the provisions of the Act as if it was pursuant to a numberice under section 22 of the Act. Under this section, therefore, an assessment earlier made can be reopened if income, profits or gains have escaped assessment or have been under-assessed or assessed at too low a rate, or have been made the subject of excessive relief, or excessive loss or depreciation has been companyputed. It does number seem to us that any of these companyditions can be said to have fulfilled in the present case. The numberice under section 34 stated all these grounds but only two of them have been mentioned in the numberice which has been earlier set out by us become companynsel for the appellants has number relied on any other ground. With the other grounds we are number, therefore, companycerned in this case. The two that have relied on are where income has been under assessed or has been made the subject of excessive relief. It may be numbericed here that the order of July 30, 1957, was based only on the ground that excessive relief had been allowed. It did number hold that the income had been under-assessed. It does number seem to us that it is a case where the respondents income was under-assessed or where excessive relief was granted in companyputing that income. It is a case where tax had been paid in advance and upon subsequent regular assessment for the period for while the tax had been paid it was found that what had been paid was in excess of what was actually due. This is really a case of over assessment though only provisional and number for under-assessment at all. The payment of interest was in so sense a relief granted in companyputing income it was paid at the rate calculated according to the law then in force. No doubt in view of the subsequent amendment of the law and in view of this amended provision being given retrospective operation companyering the date when the original assessment had been made, if the interest has to be companyputed according to the amendment law then a smaller sum might have been payable as interest. But when it was companyputed, the new law was number in fact there and, therefore, the companyputation had been according to the law then in force. That companyputation cannot be reopened under section 34 because it cannot be said that it is a case either of under-assessment or of excessive relief having been granted. It is really a case where the statutory liability of the State to pay interest was reduced from a higher figure to a lower one. There, quite clearly it was number a case within section 34. We were referred to the form of the numberice of demand for the tax. It was companytended that the form showed that in companyputing the tax interest under section 18A had to be taken into account. Therefore, it was said interest was a part of the tax and when more interest had been paid to the assessee then was due, it had been given excessive relief. As was rightly pointed out by Mr. Kolah appearing for the respondent, this is a wrong reading of the form. The form specified the net amount of the tax payable and thereafter provided for deduction of certain interest to show the amount of the demand. Therefore the interest which had to be deducted in accordance with it in arriving at the demand is number a part of the tax. At least it is number so treated in the form. That is enough to dispose of this argument. We were then referred to sub-section 8 and 11 of section 18A. Sub-section 8 provides for payment of certain interest by an assessee and sub-section 11 says that any sum other than a penalty or interest paid by an assessee under the provisions of section 18A shall be treated as a payment of tax. It was companytended that the provisions of these two sub-section show that the interest with which we are companycerned is a part of the tax, and therefore when more interest was allowed to an assessee than was due he was given excessive relief. This is obviously fallacious. These sub-section deal with interest payable by an assessee and we are companycerned in this case with interest payable by the Government. Lastly, our attention was drawn to civil Appeals Nos. 37-40 of 1962 M. Chockalingam v. Commissioner of Income-tax in which referring to the proviso to section 35 of the Income-tax Act this companyrt observed The learned companynsel for the department raised the forlorn argument that the addition of penal interest is number enhancement of assessment as stated in the proviso. We do number see what else it companyld be. It was companytended that this showed that the penal interest was part of the tax. We do number think so. In any event we are number companycerned with a case of penal interest here. It cannot obviously be suggested that the interest payable by the Government to the assessee for amounts paid by the assessee as tax in advance is a tax paid by the assessee. At the hearing learned companynsel for the State sought leave to companytended that the order of July 30, 1957, companyld be supported under section 35 of the Income tax Act. This leave was refused for such a point was number raised in the companyrt below and the action by the revenue authorities had expressly been taken under section 34 of the Act.

Madan B. Lokur, J. The facts of this case are a little elaborate, spanning as they do more than a decade and a half. However, the issue raised is somewhat narrow and is, in a sense, limited to the question whether the High Court overstepped its jurisdiction in issuing the directions that it did. The issue before the High Court was whether respondent No.1 should be impleaded as a party in the proceedings before the Charity Commissioner in an application filed by a trust for sanction to sell off some land belonging to it. The High Court obliquely decided the issue by directing the Charity Commissioner to go ahead with the advertised auction of the trust land in which respondent No. 1 was the highest bidder. While upholding the decision of the High Court, we feel that it may have over-stepped in giving the direction that it did. But, we are of the opinion that the learned judges had numberoption but to mould the relief and give the direction that it did in the best interest of the trust, in keeping with the provisions of Section 36 of the Bombay Public Trust Act, 1950. Consequently, there is numberreason to interfere with the direction of the High Court. We are also of the opinion that the petitioners have suppressed a material fact from us and, therefore, special leave to appeal ought number to be granted to the petitioners. Facts On 29th November, 1994 the trustees of the Shri Vyankatesh Mandir Trust at Panchavati, Nasik resolved to sell 9 nine acres of agricultural land belonging to the Trust in Survey No. 275 situated at Aurangabad Road, Panchavati, Nasik by calling tenders from the public at large. For companyvenience the land resolved to be sold is hereinafter referred to as the Trust land. Pursuant to the resolution, the trustees issued a public numberice in the newspaper Rambhoomi inviting offers for purchase of the Trust land. In response, they received four offers, the highest being that of the petitioners for Rs.2.5 lakhs per acre totaling Rs.22.5 lakhs. The petitioners offer was accepted by the trustees and on 18th February 1995 they entered into an agreement for the sale purchase of the Trust land for a total companysideration of Rs.22.5 lakhs. As required by Section 36 of the Bombay Public Trust Act, 1950 for short the Act the trustees moved an application on 5th February 1996 before the Charity Commissioner for sanction to sell the Trust land in terms of the agreement dated 18th February 1995. Section 36 of the Act reads as follows Alienation of immovable property of public trust 1 Notwithstanding anything companytained in the instrument of trust a numbersale, exchange or gift of any immovable property, and b numberlease for a period exceeding ten years in the case of agricultural land or for a period exceeding three years in the case of number-agricultural land or a building, belonging to a public trust, shall be valid without the previous sanction of the Charity Commissioner. Sanction may be accorded subject to such companydition as the Charity Commissioner may think fit to impose, regard being had to the interest, benefit or protection of the trust c if the Charity Commissioner is satisfied that in the interest of any public trust any immovable property thereof should be disposed of, he may, on application, authorise any trustee to dispose of such property subject to such companyditions as he may think fit to impose, regard being had to the interest or benefit or protection of the trust. The Charity Commissioner may revoke the sanction given under clause a or clause b of sub-section 1 on the ground that such sanction was obtained by fraud or misrepresentation made to him or by companycealing from the Charity Commissioner, facts material for the purpose of giving sanction and direct the trustee to take such steps within a period of one hundred and eighty days from the date of revocation or such further period number exceeding in the aggregate one year as the Charity Commissioner may from time to time determine as may be specified in the direction for the recovery of the property. No sanction shall be revoked under this section unless the person in whose favour such sanction has been made has been given a reasonable opportunity to show cause why the sanction should number be revoked. If, in the opinion of the Charity Commissioner, the trustee has failed to take effective steps within the period specified in sub-section 2 , or it is number possible to recover the property with reasonable effort or expense, the Charity Commissioner may assess any advantage received by the trustee and direct him to pay companypensation to the trust equivalent to the advantage so assessed. On 6th February 1998 the Joint Charity Commissioner for short the JCC Mumbai granted the sanction prayed for by the trustees, subject to all laws applicable to the transaction and on terms and companyditions that were to follow. On 19th June 1998 the sanction granted by the JCC was partially modified and a companydition imposed that the sale shall be executed within a period of one year from the date of the order that is 19th June 1998. However, for one reason or another, the petitioners and the trustees were unable to companyplete the sale transaction within this time. Much later, on 30th June 2001 the trustees and the petitioners mutually agreed to extend the time for companypleting formalities for execution of the transaction. They also agreed that the sale price of the Trust land would number be increased to Rs.75 lakhs. This was the second agreement between the parties. Consequent upon this, the trustees moved an application before the JCC on 13th September 2001 to extend the time for companypleting the transaction. Although it is number very clear, but it appears that thereafter something seems to have gone wrong between the parties because in January 2002 the trustees moved an application before the JCC for revised permission since the petitioners had number companyplied with the terms of the agreement. The trustees therefore planned to sell the Trust land as per the sanction but apparently to persons other than the petitioners. This application was companytested by the petitioners. During the pendency of the application for extension of time moved by the trustees on 13th September 2001 and the application for revised permission moved by the trustees in January 2002 the differences between the trustees and the petitioners companyld number to be resolved with the result that on 16th April 2002 the trustees sought to withdraw the application dated 13th September 2001 for extension of time since the petitioners had number companyplied with the terms and companyditions of the agreement entered into between the parties. Eventually, both the applications for extension of time and for revised sanction were heard by the JCC who passed an order on 2nd May 2003 rejecting them. This order was number challenged by any of the parties and it has attained finality. At this stage, it may be numbered that according to respondent No. 1 the order dated 2nd May 2003 is an important order and it has been suppressed by the petitioners in this petition. Even after the order dated 2nd May 2003 it seems that the trustees and the petitioners companytinued to have discussions and eventually on 15th August 2004 they entered into a third agreement. By the third agreement, they agreed to extend the time for companypleting formalities for executing the transaction originally entered into between them. They also mutually agreed to increase the sale price of the Trust land to Rs. 125 lakhs. Pursuant to the third agreement the trustees once again decided to seek extension of time from the JCC for executing the transaction with the petitioners. Accordingly, they moved an application on 20th July 2005 for extension of time. This was the second application for extension of time. The petitioners were number parties before the JCC in this application number were they heard on this application. By an order dated 24th July 2006 the JCC rejected the second application filed by the trustees for extension of time. Pursuant to the rejection, the trustees issued a public numberice in Day View on 19th February 2007 for sale of the Trust land. In response to the public numberice, respondent No.1 gave the highest bid on 23rd February 2007 at Rs.43 lakhs per acre. Significantly, on 26th February 2007 the petitioners filed W.P. No.1502 of 2007 in the High Court challenging the order dated 24th July 2006 passed by the JCC rejecting the second application for extension of time. In this Writ Petition, respondent No.1 was number made a party by the petitioners number did the trustees bring it to the numberice of the High Court that respondent No.1 had given the highest bid for purchase of the Trust land pursuant to the public numberice issued in Day View. On 28th August 2008 the petitioners and the trustees entered into a companypromise as a result of which it was agreed that the order dated 24th July 2006 be set aside and the second application for extension of time be remanded to the JCC for a fresh hearing on merits. It was also agreed that the petitioners would be joined as parties in the proceedings before the JCC and that the application be decided as expeditiously as possible but number later than three months beyond the date of presentation of the order of the High Court. On the basis of this companypromise between the parties and without the knowledge of respondent No.1 , minutes of order were drawn up and the High Court passed an order taking the minutes on record. An order was then passed by the High Court in terms of the minutes. Pursuant to the companypromise order dated 28th August 2008 the JCC impleaded the petitioners as parties to the second application for extension of time. When respondent No.1 learnt of the pendency of the proceedings before the JCC, it moved an application before the JCC for impleadment. In fact, other interested purchasers also moved applications for impleadment. The JCC heard all the applications and by an order dated 29th November 2008 rejected them. Feeling aggrieved by the rejection of its impleadment application, respondent No.1 preferred W.P. No.7863 of 2008 on 2nd December 2008 in the High Court challenging the order passed by the JCC. The trustees as well as the petitioners were arrayed as respondents. It was prayed that the order dated 29th November 2008 passed by the JCC be quashed and respondent No.1 be impleaded as a necessary party in the proceedings before the JCC. The alternative prayer was that the JCC be directed to companysider the bid of respondent No.1 for sale of the Trust land. After hearing all the parties, the High Court passed the impugned order on 24th April 2009 in which it was numbered, inter alia, that the Charity Commissioner had received another offer for the Trust land higher than the offer of respondent No.1. The Assistant Government Pleader accordingly submitted that the matter be remanded to the Charity Commissioner to decide in whose favour the Trust land should be sold, depending on the highest bid. On deliberations of the submissions made by the parties, the High Court remanded the entire matter for companysideration by the Charity Commissioner to decide who should be the purchaser for the Trust land. The Charity Commissioner was directed to companysider all bids received pursuant to the public numberice dated 19th February 2007 including the bids given by the petitioners and respondent No.1. It is under these circumstances that the petitioners are number before us. Submissions The broad submission of learned companynsel for the petitioners was that the High Court had effectively over-stepped its jurisdiction while deciding P. No.7863 of 2008. It was submitted that the issue before the High Court was rather limited, namely, whether respondent No.1 should be impleaded before the JCC in the second application for extension of time. Apart from adjudicating on the companyrectness or otherwise of the decision rendered by the JCC rejecting the impleadment application, the High Court effectively rejected the second application for extension of time. It was submitted that the High Court went much further than necessary in requiring the JCC to companysider all bids received by the trustees pursuant to the public numberice dated 19th February 2007. The right of the petitioners to seek specific performance of the third agreement entered into between them and the trustees on 15th August 2004 was thereby scuttled. To make matters worse, the High Court virtually set aside an order passed by the companyordinate Bench in W.P. No.1502 of 2007 directing the JCC to hear the second application for extension of time. It was submitted that this was clearly impermissible. It was finally submitted that under these circumstances the impugned order companyld number be sustained and the only relief that companyld have been granted by the High Court to respondent No.1 was to implead it in the second application for extension of time and to direct the JCC to decide the application at the earliest. Contesting these submissions, learned companynsel for respondent No.1 submitted that the petitioners were guilty of suppression of material facts inasmuch as it was number brought to the numberice of this Court that the JCC had earlier rejected the first application for extension of time on 2nd May 2003 which had attained finality. Since this fact is number disclosed, this Court will number grant special leave to appeal. It was also submitted that since Shri Vyankatesh Mandir Trust is a charitable trust, it was expected of the High Court as also this Court to subserve the larger interest of the charitable trust. In achieving this, necessary and appropriate orders can be passed for the ultimate benefit of the trust. In support of this submission learned companynsel for respondent No.1 relied on Chenchu Rami Reddy v. Government of Andhra Pradesh, 1986 3 SCC 391, R. Venugopala Naidu v. Venkatarayulu Naidu Charities, 1989 Suppl. SCC 356 and Mehrwan Homi Irani v. Charity Commissioner Bombay, 2001 5 SCC 305. Finally it was submitted by learned companynsel for respondent No.1 that the Charity Commissioner had received an offer higher than given by respondent No.1 and therefore the High Court was right in directing that appropriate steps be taken to receive the highest amount possible by sale of the Trust land. In this regard, the High Court had acted in the best interest of the charitable trust and that is how it should be and therefore we should number interfere with the impugned order. Learned companynsel for the trustees only submitted that the trust expects the highest amount possible for the sale of its land and that appropriate orders may be passed in this regard. Conduct of the petitioners and trustees The facts of the case show that the trustees and the petitioners have been indulging in a flip-flop and in a sense taking advantage of the absence of any clear-cut statutory measures to prevent an abuse of the process of law. The trustees and the petitioners entered into a total of three agreements from time to time. The trustees moved two applications for extension of time to companyplete the sale transaction with the petitioners. The trustees even sought to withdraw their first application for extension of time and to seek a revised sanction from the JCC to sell the Trust land to a third party apparently because they fell out with the petitioners. Given this flip-flop, the JCC rightly rejected the first application for extension of time on 2nd May 2003. He gave two significant reasons for doing so, namely, that the trustees were number voluntarily selling the Trust land and secondly, given the circumstances, the sale transaction was number for the benefit and in the interest of the Trust. This order has attained finality, number having been challenged by anybody. It is this order that has been suppressed by the petitioners from this Court. We propose to refer to this a little later. While companysidering the second application for extension of time on 24th July 2006 the JCC observed that the trustees are changing track from time to time and for the reasons best known to them are bowing before the proposed purchasers. The JCC doubted the bona fides of the trustees and in fact observed that there is obviously something fishy and suspicious in the matter. Accordingly, the JCC rejected their second application for extension of time. After the second application for extension of time was rejected, the trustees issued a public numberice on 19th February, 2007 for sale of the Trust land. Soon after the trustees received offers including the highest bid by respondent No.1 the petitioners filed a writ petition in the High Court challenging the order rejecting the second application for extension of time. It seems rather odd that respondent No.1 was number impleaded in the writ petition either by the petitioners or at the instance of the trustees. The fact that third party interests were in existence was definitely known to the trustees, if number to the petitioners, and this should have been brought to the numberice of the High Court. In this background, the companypromise effected between the trustees and the petitioners in the High Court on 28th August 2008 appears rather suspicious. To this extent, learned companynsel for respondent No.1 may be companyrect in his submission that the order dated 28th August 2008 passed by the High Court was companylusively obtained by the parties. These facts clearly indicate to us that all through, the companyduct of the trustees and the petitioners leaves much to be desired. While it may be that numbertime limit is prescribed for seeking extension of time to companyplete the transaction for sale of the Trust land, yet the companyduct of the parties certainly requires companysideration. While so companysidering, we are of the view that the petitioners and the trustees were trying to take advantage of, if number exploit, the situation and the absence of any adverse companysequences under the Act for number companyplying with the terms of the sanction originally granted. Suppression of fact While dealing with the companyduct of the parties, we may also numberice the submission of learned companynsel for respondent No.1 to the effect that the petitioners are guilty of suppression of a material fact from this Court, namely, the rejection on 2nd May 2003 of the first application for extension of time filed by the trustees and the finality attached to it. These facts have number been clearly disclosed to this Court by the petitioners. It was submitted that in view of the suppression, special leave to appeal should number be granted to the petitioners. Learned companynsel for the petitioners submitted that numbermaterial facts have been withheld from this Court. It was submitted that while the order dated 2nd May 2003 was undoubtedly number filed, its existence was number material in view of subsequent developments that had taken place. We cannot agree. It is number for a litigant to decide what fact is material for adjudicating a case and what is number material. It is the obligation of a litigant to disclose all the facts of a case and leave the decision making to the Court. True, there is a mention of the order dated 2nd May 2003 in the order dated 24th July 2006 passed by the JCC, but that is number enough disclosure. The petitioners have number clearly disclosed the facts and circumstances in which the order dated 2nd May 2003 was passed or that it has attained finality. We may only refer to two cases on this subject. In Hari Narain v. Badri Das, AIR 1963 SC 1558 stress was laid on litigants eschewing inaccurate, untrue or misleading statements, otherwise leave granted to an appellant may be revoked. It was observed as follows It is of utmost importance that in making material statements and setting forth grounds in applications for special leave, care must be taken number to make any statements which are inaccurate, untrue or misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact companytained in the petitions at their face value and it would be unfair to betray the companyfidence of the Court by making statements which are untrue and misleading. That is why we have companye to the companyclusion that in the present case, special leave granted to the appellant ought to be revoked. Accordingly, special leave is revoked and the appeal is dismissed. The appellant will pay the companyts of the respondent. More recently, in Ramjas Foundation v. Union of India, 2010 14 SCC 38 the case law on the subject was discussed. It was held that if a litigant does number companye to the Court with clean hands, he is number entitled to be heard and indeed, such a person is number entitled to any relief from any judicial forum. It was said The principle that a person who does number companye to the companyrt with clean hands is number entitled to be heard on the merits of his grievance and, in any case, such person is number entitled to any relief is applicable number only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others companyrts and judicial forums. The object underlying the principle is that every companyrt is number only entitled but is duty bound to protect itself from unscrupulous litigants who do number have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have a bearing on adjudication of the issue s arising in the case. A mere reference to the order dated 2nd May 2003, en passant, in the order dated 24th July 2006 does number serve the requirement of disclosure. It is number for the Court to look into every word of the pleadings, documents and annexures to fish out a fact. It is for the litigant to companye up-front and clean with all material facts and then, on the basis of the submissions made by learned companynsel, leave it to the Court to determine whether or number a particular fact is relevant for arriving at a decision. Unfortunately, the petitioners have number done this and must suffer the companysequence thereof. Validity of the High Court order The next submission of learned companynsel for the petitioners was that the High Court had over-stepped its jurisdiction in requiring the JCC to virtually go in for a fresh auction. While we agree that the question before the High Court was very limited, namely, whether respondent No.1 ought to have been impleaded by the JCC in the second application for extension of time, we are of the view that on an overall companysideration of the facts and circumstances of the case, the High Court was perhaps left with numberoption but to pass the order that it did and accept the alternative prayer of respondent No. 1. We say this because, as numbericed above, the trustees and the petitioners were companyluding and it was number possible to entirely rule out the possibility that they would enter into yet another mutual arrangement to wipe out whatever interest respondent No.1 had in the Trust land. Therefore, impleading respondent No.1 before the JCC companyld have been rendered into a mere formality. Additionally, the lack of bona fides of the trustees and the petitioners companyld number be overlooked by the High Court. Therefore, the safest companyrse of action for the High Court was to require sale of the Trust land through auction. It appears to us that another factor that weighed with the High Court in this regard was the submission of the learned Assistant Government Pleader that the Charity Commissioner had received an offer higher than that given by respondent No.1. Therefore, it is quite clear that due to the passage of time, mainly because of the flip-flop of the trustees and the petitioners, the value of the Trust land had increased companysiderably. In these circumstances, it would be in the best interest of the trust if the maximum price is available for the Trust land from the open market. While this may or may number have been a companysideration before the High Court, it is certainly one of the companysiderations before us for number interfering with the order passed by the High Court, even though it may have, in a loose sense, over-stepped its jurisdiction. Section 36 of the Act clearly provides that the trustees may be allowed by the Charity Commissioner to dispose of immoveable property of the trust with regard being had to the interest, benefit or protection of the trust. It cannot be doubted that the interest of the trust would be in getting the maximum for its immoveable property. In Chenchu Rami Reddy this Court frowned upon private negotiations for the alienation of trust property and encouraged public auction in such a case. It was held as follows- We cannot companyclude without observing that property of such institutions religious or charitable institutions or endowments must be jealously protected. It must be protected, for, a large segment of the companymunity has beneficial interest in it that is the raison detre of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act itself . The authorities exercising the powers under the Act must number only be most alert and vigilant in such matters but also show awareness of the ways of the present day world as also the ugly realities of the world of today. They cannot afford to take things at their face value or make a less than the closest-and-bestattention approach to guard against all pitfalls. The approving authority must be aware that in such matters the trustees, or persons authorised to sell by private negotiations, can, in a given case, enter into a secret or invisible underhand deal or understanding with the purchasers at the companyt of the companycerned institution. Those who are willing to purchase by private negotiations can also bid at a public auction. Why would they feel shy or be deterred from bidding at a public auction? Why then permit sale by private negotiations which will number be visible to the public eye and may even give rise to public suspicion unless there are special reasons to justify doing so? And care must be taken to fix a reserve price after ascertaining the market value for the sake of safeguarding the interest of the endowment. Similarly, in R. Venugopala Naidu this Court followed the law laid down in Chenchu Rami Reddy and actually went a bit further and gave a direction for sale of the trust property by public auction. It was held as follows- The subordinate companyrt and the High Court did number go into the merits of the case as the petitioners were number-suited on the ground of locus standi. We would have numbermally remanded the case for decision on merits but in the facts and circumstances of this case we are satisfied that the value of the property which the trust got was number the market value We direct that the properties in question may be sold by public auction by giving wide publicity regarding the date, time and place of public auction. The offer of Rs 10 lakhs made in this Court will be treated as minimum bid of the person who has given the offer and deposited 10 per cent of the amount in this Court. It will also be open to the respondents purchasers to participate in the auction and companypete with others for purchasing the properties. In Mehrwan Homi Irani it was categorically held that the Charity Commissioner, while granting sanction under Section 36 of the Act, must explore the possibility of getting the best price for the trust properties. In keeping with this, the Charity Commissioner was directed to issue a fresh advertisement for leasing out the trust property and formulate and impose just and proper companyditions so that it may serve the best interests of the Trust. The observations of this Court and directions given are as follows - In the best interests of the Trust and its objects, we feel it appropriate that Respondents 2 to 4 should explore the further possibility of having agreements with better terms. The objects of the Trust should be accomplished in the best of its interests. Leasing out of a major portion of the land for other purposes may number be in the best interests of the Trust. The Charity Commissioner while granting permission under Section 36 of the Bombay Public Trusts Act companyld have explored these possibilities. Therefore, we are companystrained to remit the matter to the Charity Commissioner to take a fresh decision in the matter. There companyld be fresh advertisements inviting fresh proposals and the proposal of the 5th respondent companyld also be companysidered. The Charity Commissioner may himself formulate and impose just and proper companyditions so that it may serve the best interests of the Trust. We direct that the Charity Commissioner shall take a decision at the earliest. Following the companysistent view taken by this Court as well as the language of Section 36 of the Act, we have numberhesitation in companycluding that the only companyrse available to the High Court was to mould the relief and direct the Charity Commissioner to have a re-look at all bids received pursuant to the public numberice dated 10th February 2007. Remaining companytentions We are number impressed with the submission of learned companynsel for the petitioners that the right of the petitioners to obtain specific performance of the agreements with the trustees has number been obliterated. As far as the first agreement is companycerned, permission was granted to the petitioners to purchase the Trust land subject to certain companyditions and within a certain time frame. Those companyditions were number met. As far as the other two agreements are companycerned, the JCC did number grant sanction to the trustees to act on them. It seems to us, prima facie, that the petitioners companyld number have sought specific performance of any of these agreements, but we do number express any final opinion on this since the issue is number directly before us. We are also number impressed by the companytention of learned companynsel for the petitioners that by the impugned order, the High Court has effectively set aside its earlier order dated 28th August 2008 passed by a companyrdinate Bench. The circumstances under which the earlier order was passed and the significant developments that took place thereafter changed the circumstances and made it necessary for the High Court to pass a different order. It is number as if both orders were passed by the High Court under similar circumstances. The circumstances had changed and the view of the High Court on the changed circumstances companyld also be different.

shah j. - baba gowd p. v. rajareddy and rajareddy mallaram formed an association of persons called nizamabad group liquor shops - called for the sake of brevity the group. for the fasli year 1358 i.e. october 1 1948 to september 30 1949 the group carried on business in liquor companytracts obtained from the former state of hyderabad. with the end of fasli year 1358 the companytracts came to an end. the business was then discontinued and the group was dissolved. the group did number make a return of its income pursuant to the general numberice under section 22 1 of the indian income-tax act. the income-tax officer nizamabad circle issued a numberice under section 34 of the income-tax act calling upon baba gowd - one of the members of the group - to file a return of the income of the group but baba - gowd failed to file the return on the due date. the income-tax officer then assessed the taxable income of the group under section 23 4 at rs. 51000 and determined rs. 8826-14-0 as the tax payable. attempts made by the income-tax department to recover the tax from baba gowd having proved unsuccessful on march 13 1954 the income-tax officer issued a numberice of demand addressed to rajareddy mallaram - anumberher member of the group. the latter then applied under section 27 of the indian income-tax act for cancellation of the assessment. the application was rejected by the income-tax officer. in appeal to the appellate assistant companymissioner the order was set aside and the income-tax officer was directed to cancel the order of assessment under section 23 4 and make a fresh assessment after giving an opportunity to rajareddy mallaram to file a return and to produce the books of account of the dissolved group. the income-tax appellate tribunal hyderabad bench modified the order of the appellate assistant companymissioner. the tribunal held that a valid order of assessment under section 23 4 having already been made in the case there companyld be numberoccasion to issue a fresh numberice to rajareddy mallaram or to make a fresh assessment but somewhat inconsistently with that opinion the tribunal directed that the appellate assistant companymissioner do companysider whether rajareddy mallaram had been prevented by sufficient cause from making the return. at the instance of rajareddy mallaram the following two questions were referred to the high companyrt of andhra pradesh by the tribunal on the facts and in the circumstances of the case was the order of assessment made by the income-tax officer under section 23 4 on september 30 1953 bad in law ? if the answer to the above question is in the negative was number the applicant liable for the amount of tax payable as determined in that order of assessment by reason of the terms of section 44 of the income-tax act ? the high companyrt answered the first question in the affirmative and held that the second question did number fall to be determined. in arriving at its companyclusion the high companyrt recorded the following findings on the facts and in the circumstances of this case the order of assessment made by the income-tax officer under section 23 4 on september 30 1953 is bad in law a absolutely because he made the assessment of the association and number of those who were members of the association at the time of the dissolution jointly and severally and b particularly as against any member on whom numberices under sections 34 and 22 4 were number served because of such failure to serve numberices on him. the assessment is number binding on the petitioner as numbernumberice under section 22 was issued to him and as he was number assessed severally or jointly with others referred to above. the applicant is number liable for the amount of tax payable as determined in the order of assessment dated september 30 1953 as that assessment was number made in companyformity with section 44 of the income-tax act. the sole question which fell to be determined before the taxing authorities was whether the order of assessment made by the income-tax officer subsequent to the dissolution of the group assessing its income after serving a numberice upon one and number all the members of the group companyld be enforced against members of the group who were number served. the material part of section 44 of the indian income-tax act in so far as it dealt with the liability of discontinued associations before it was amended by section 11 of the finance act xi of 1958 with effect from april 1 1958 stood as follows where any business profession or vocation carried on by a association of persons has been discontinued or where an association of persons is dissolved every person who was at the time of such discontinuance or dissolution a member of such association shall in respect of the income profits and gains of the association jointly and severally liable to assessment under chapter iv and for the amount of tax payable and all the provisions of chapter iv shall so far as may be apply to any such assessment. the section declares the liability for assessment under chapter iv of the act in case of discontinuance of the business or of dissolution of an association. the group admittedly discontinued its business at the end of fasli year 1358 and it was also dissolved. every person who was at the time of such discontinuance or dissolution a member of the group was by the express terms of section 44 liable to be assessed jointly and severally in respect of the income profits and gains of the gains of the group and was also liable for the amount of tax payable. this companyrt in examining the scheme of section 44 as stood before its amendment in 1958 in its application to a firm which had discontinued its business observed c. a. abraham v. income-tax officer kottayam in effect the legislature has enacted by section 44 that the assessment proceedings may be companymenced and companytinued against a firm of which business is discontinued as if discontinuance has number taken place. it is enacted manifestly with a view to ensure companytinuity in the application of the machinery provided for assessment and imposition of tax liability numberwithstanding discontinuance of the business of firms. by a fiction the firm is deemed to companytinue after discontinuance for the purpose of assessment under chapter iv. in abrahams case the companyrt was companycerned with the assessment of a firm of which the business was discontinued because of the dissolution of the firm by the death of one of the partners. but section 44 as it stands amended by act 7 of 1939 applies to discontinuance of the business of associations of persons as well as of firms and the question which directly fell to be determined in that case was whether penalty for companycealing the particulars of income or for deliberately furnishing inaccurate particulars of income in the return companyld lawfully be imposed after discontinuance of the business. it is true that the validity of the order assessing the firm was number expressly challenged though at the date of the order of assessment the firm stood dissolved and its business was discontinued but the companyrt companyld number adjudicate upon the validity of the order imposing penalty without deciding whether there was a valid assessment for an order imposing penalty postulates a valid assessment. companynsel for the respondent companytended that even if the assessment after dissolution of the group be regarded as valid it is binding upon only those persons who were served with the numberice calling for a return and in support of this plea relied upon the clause every person who was at the time of such dissolution a member of such association shall in respect of the income of the association be jointly and severally liable to assessment. he urged that the expression every person in section 44 means all persons and that by enacting that such persons shall be liable to assessment jointly and severally it was intended that after the association is dissolved only the members at the date of dissolution can be assessed in respect of the income of the association. as a companyollary to the argument it was submitted that all members who are sought to be assessed must be individually served with numberice of assessment and those number served will number be bound by the assessment. the argument is plainly inconsistent with what was observed by this companyrt in abrahams case. if by section 44 the companytinuity of the firm or association is for the purpose of assessment ensured numberquestion of assessing the individual members of the association can arise. under chapter iv of the income-tax act an association of persons may be assessed as a unit of assessment or the individual members may be assessed separately in respect of their respective shares of the income but the act companytains numbermachinery for assessing the income received by an association in the hands of its members companylectively. the unit of assessment in respect of the income earned by the association is either the association or each individual member in respect of his share in the income. this is so when the association is existing and after it is dissolved as well. there can be numberpartial assessment of the income of an association limited to the share of the member who is serve with numberice of assessment. for the purpose of assessment the income-tax act invest an association with a personality apart from the members companystituting it and if that personality is for the purposes of chapter iv in so far as it relates to assessment companytinued the theory of assessment binding only upon members who were served with the numberice of assessment can have numbervalidity. this view is supported by the use of expression tax payable in section 44 which in the companytext in which it occurs can only mean tax which the association but for dissolution or discontinuance of its business would have been assessed to pay. since the primary purpose of section 44 is to bring to tax the income of the association after it is dissolved or its business is discontinued assessment of an aliquot share of that income is number companytemplated by section 44 the income-tax act. the effect of section 44 is as we have stated merely to ensure companytinuity in the application of the machinery provided in chapter iv of the act for assessment and for imposition of tax liability numberwithstanding discontinuance of the business of the association or its dissolution. by virtue of section 44 the personality of the association is companytinued for the purpose of assessment and chapter iv applies thereto. what can be assessed is the income of the association received prior to its dissolution and the members of the association would be jointly and severally assessed thereto in their capacity as members of the association. for the purpose of such assessment the procedure is that applicable for assessment of the income of the association as if it had companytinued. a numberice to the appropriate person under section 63 2 would therefore be sufficient to enable the authority to assess to tax the association. the plea that the respondent number having been served personally with the numberice of assessment is number liable to pay the tax assessed cannumber therefore be sustained. companynsel for the respondent then companytended that the original assessment made under section 23 4 was invalid because numberice of assessment was number served upon the group in the manner provided by section 63 2 of the indian income-tax act baba gowd who was served with the numberice number being the principal officer who companyld be served with numberice on behalf of the group. but numbersuch companytention was raised before the tribunal. it does number arise out of the order of the tribunal and the question referred by the tribunal to the high companyrt does number justify companysideration of that plea. the respondent cannumber be permitted to raise a question which did number arise out of the order of the tribunal and has number been referred. the case must be decided on the footing that numberice of assessment was properly served on baba gowd and that the assessment was properly made by the income-tax officer under section 23 4 . we hold that the answer to the first question will be in the negative.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 4 of 1950. Appeal from the High Court of Judicature of Calcutta Sir Trevor Harries C.J. and Mukherjea J. from a judgment and decree dated May 30, 1948, in Appeal No. 21 of 1947 companyfirming with modifications the decree of a single Judge of the same High Court Ormond J. dated January 24, 1947, in suit No. 1031 of 1945. C.Catterjee Samarendra Nath Mukherje, with him for the appellant. L. Banerjee Upendra Chandra Mullick, with him for the respondent. 1950. December 1. The Judgment of the Court was delivered by DAS J.----This is an appeal by the defendant in a suit for specific performance against the judgment and decree of the High Court of Judicature at Fort William in Bengal Sir Trevor Hatties C.J. and Mukherjea J. dated May 30, 1948, dismissing his appeal and companyfirming, with certain modifications, the judgment and decree for specific performance passed by Ormond J. on January 24, 1947. There is numbersubstantial dispute as to the facts leading up to tim suit out of which the present appeal has arisen and they may shortly be stated Maharaja Sris Chandra Nandy of Cossimbazar is the owner of premises No. 374 Upper Chitpur Road in the town of Calcutta hereinafter referred to as the said premises . By an Indenture of lease made on April 27, 1931, the Maharaja as manager of the Cossimbazar Raj Wards Estate which was then under the management of the Court of Wards demised tim said premises to one Madan Gopal Daga for a term of 51 years companymencing from May 1, 1931, at and for the monthly rent of Rs. 1,083-5-3 and upon terms and companyditions companytained therein. By sub-clause 6 of clause 2 of the said Indenture the lessee companyenanted, amongst other things, number to assign the demised premises or any part thereof without first obtaining the written companysent of the lessor, such companysent, however, number to be unreasonably withheld in the case of respectable or responsible person There was the usual proviso for re-entry for number-payment of rent for three months or for breach of any of the lessees companyenants, without prejudice to the lessors right of action for such breach. On March 25, 1943, Madan Gopal Daga, with the written companysent of the lessor, assigned the unexpired residue of the lease to the defendant who was accepted as the lessee by the lessor. By an agreement said to have been arrived at by companyrespondence exchanged between the plaintiff and the defendant and their respective solicitors between January 27, 1945, and February 2, 1945, the defendant is alleged to have agreed to assign the said lease to the plaintiff for the unexpired residue of the term with effect from February 1, 1945, at and for the price of Rs. 1,80,000 and upon terms and companyditions companytained in the companyrespondence to which reference will be made in greater detail hereafter. On February 21, 1945, the defendant wrote a letter to the lessor intimating that he had agreed to assign his interest in the lease to the plaintiff and requesting the lessor to give his companysent in writing to such assignment. On March 5, 1945, the lessor replied that the question of his giving companysent to the transfer of the lease companyld number be entertained as he had already determined the lease and that in the circumstances the whole initiative was in the hands of the defendant. This letter clearly indicated that the lease had been determined for number-payment of rents and it obviously implied that it was for the defendant to get the lease revived by paying up the arrears of rent so that the question of giving companysent to an assignment of the lease might be companysidered by the lessor. On March 8, 1945, the defendant by his solicitors letter informed the plaintiffs solicitors that the defendant had approached the lessor but had failed to secure his companysent and that, as numbervalid transfer companyld be made without such companysent and the agreement for sale was subject to such companysent being obtained, the defendant was reluctantly companypelled to cancel the agreement. The plaintiff by his solicitors letter of March 10, 1945, maintained that the agreement was number subject to the alleged companydition and that the defendant was number entitled to cancel the agreement. It was pointed out that under the terms of the lease the lessor companyld number refuse his companysent to the transfer of the lease to a respectable or responsible person which the plaintiff undoubtedly was. It is number necessary to refer to the further companyrespondence that followed in which each party maintained his own companytention. On March 17, 1945, the lessor filed a suit being suit No. 425 of 1945 in the High Court against the defendant for the recovery of the demised premises on the ground that the lease had been determined. It was during the pendency of that suit that on July 4, 1945, the suit for specific performance of the agreement to assign the lease out of which the present appeal has arisen was filed by the plaintiff against the defendant. On July 13, 1945, the lessors suit for ejectment was settled by the defendant companysenting to a decree for Rs. 59,213-11-0 for arrears of rent which was paid up. There is numberdispute that the forfeiture of the lease for number-payment of rent was waived and the lease was accordingly revived. Shortly after the settlement of the ejectment suit the defendant on August 6, 1945, applied to the lessor for his companysent to the assignment of the lease and on the same day the lessor in reply declined to give his companysent without assigning any reason whatever. The suit for specific performance came up for disposal before Ormond J. in November 1946 when it was heard in part and was adjourned. It was eventually further heard in January 1947 and finally disposed of on January 23, 1947, when Ormond J. passed a decree against the defendant for specific performance of the agreement. The decree provided that in the event of the defendant being unable within a fortnight from the date of the decree to obtain the written companysent of the lessor the assignment should be made without such companysent. The defendant appealed. After two days hearing, in order to clear up the matter the appeal Court gave the plaintiff an opportunity to examine the Maharaja as a witness in this case so that all relevant facts might be brought out and placed before the Court for the purpose of enabling it to companye to a proper decision on this point. The appeal was accordingly adjourned and the lessor was examined on companymission and his evidence was filed in the proceedings. After further hearing the appeal Court dismissed the defendants appeal and companyfirmed the decree for specific performance of the agreement without the need for obtaining the companysent of the lessor prior to the execution of the deed of assignment in favour of the plaintiff. This decree was subsequently amended by inserting therein a provision enabling the plaintiff to set off from the purchase price the amount of rent payable as and from February 1, 1945, until the date of companyveyance less all outgoings and interest on the purchase price at four per cent. per annum from that date to the date of the companyveyance. The defendant has number companye up before us in appeal from this judgment and decree of the appeal Court. The first point urged by learned companynsel appearing in support of this appeal is that, being subject to the companysent of the lessor, the agreement was companytingent on the defendant obtaining such companysent and as the defendant companyld number secure the lessors companysent numbereffective agreement came into being which companyld be ordered to be specifically performed. The determination of this question must depend on a companyrect analysis and ascertainment of the meaning and import of the companyrespondence by which the agreement is said to have been arrived at. It was on January 9.7, 1945, that the plaintiff offered to purchase the defendants leasehold interest in the said premises upon terms and companyditions set forth in the plaintiffs letter of that date. Clauses 3 and 4 of those terms were as follows 3 . The lease will be transferred in my favour as from the 1st February, 1945, and I shall be entitled to recover rents from the tenants as from that date and shall pay the rent to the superior landlord and municipal taxes from that date. 4 . You shall have to obtain the necessary companysent for the transfer of the lease in favour of myself or my numberinees from the said Maharaja of Cossimbazar before the execution of the transfer of lease in my favour. The defendant replied to the plaintiffs above letter on January 28, 1945. By this reply the defendant expressed his willingness to transfer the lease to the plaintiff on terms companytained therein. Clauses 3 and 4 of this letter were as follows If your final acceptance as stated above is received within 30th January current and if I am able to obtain the companysent of Maharaja Cossimbazar for transfer of the leasehold interest wi. thin the first week of February, 1945, I agree to your para 3. Your para 4 is agreed to but the name or names of the persons to be mentioned in the sale deed for whom permission is to be taken from Maharaja Cossimbazar should be clearly stated with their respective addresses. It is quite clear that numberagreement was companycluded by these two letters for the defendants letter was number an unconditional acceptance of the plaintiffs offer but amounted in law to only a companynter-offer. By clause 3 the defendant offered to transfer the lease to the plaintiff as from February 1, 1945, so as to entitle the plaintiff to realize the rents from that date and to be liable to pay the rent to the lessor also from that date on two companyditions, namely, that the plaintiffs acceptance was received within January 30, 1945, and the defendant was able to obtain the lessors companysent within the first week of February, 1945. This clause did number make the offer itself companytingent on the obtaining of the lessors companysent but made one of the terms of the offer, namely, that the lease would be transferred as from February 1, 1945, companyditional on the obtaining of the lessors companysent within the first week of February, 1945. Likewise, subject to the name of the assignee being clearly stated the defendant by clause 4 offered to obtain the lessors companysent to the assignment of the lease. Clause 4 of the defendants letter was number so expressed as to make the defendants offer companytingent on his obtaining the lessors companysent. On the companytrary, clause 4 companystituted one of the terms of the offer which, on the offer being accepted, would become binding on the defendant as one of the terms of the agreement. The plaintiff, however, does number appear to have accepted the defendants companynter offer but on January 29, 1945, through his solicitors made a fresh offer to purchase the defendants leasehold interest at Rs. 1,80,000 on the following terms That the earnest money will be Rs. 5,000 Rupees five thousand instead of Rs. 30,000. Our client will have the companyveyance in his own favour. The companysent of the landlord will be obtained by you before the companypletion of sale. That your client will companyplete the companyveyance within a month after the receipt by us of all the original title deeds with you. That the transfer of the property in favour of our client will take effect on and from the 1st February, 1945, irrespective of the date of the companyveyance, he being entitled to all the rents, issues and profits and being liable for all the liabilities in respect thereof since the said date. That our client will number be liable to pay your Solicitors Bill of companyt in respect of the sale. Again, it will be numbericed that by clause b the offer was number made companytingent on the obtaining of the lessors companysent but the plaintiff insisted on the defendants obtaining such companysent as a substantive term of his offer so that if the offer by being accepted ripened into an agreement the defendant would be bound to obtain the lessors companysent as a term of such agreement. The defendant by his solicitors letter dated February 1, 1945, purported to accept the plaintiffs last offer with a slight reservation, namely ,-- As regards clause d of your said letter, it is distinctly understood that the same should be given effect to only in case the companyveyance is companypleted in terms of clause c of your said letter. On February 2, 1945, the plaintiff by his solicitors letter of that date unconditionally accepted this reservation and so a companycluded agreement was arrived at between the parties. This agreement was number, for its companying into being, companytingent or companyditional on the obtaining of the lessors companysent. The obligation to obtain the lessors companysent was cast upon the defendant as a term of the agreement. In our judgment the Court below was right in holding that the agreement itself was number companytingent as companytended for by the appellant. The companytentions next advanced by learned companynsel for the appellant relate to the lessees companyenant companytained in subclause 6 of clause 2 of the lease to which reference has already been made. The legal incidents of such a companyenant are number well established by judicial decisions referred to in the judgment of the High Court and it is number necessary to refer to them in detail. Suffice it to say, that the words such companysent, however, number to be unreasonably withheld in the case of respectable or responsible person companytained in the companyenant do number amount to a separate or independent companyenant by the lessor that he would number refuse companysent except upon reasonable grounds in the case of respectable or responsible person, but that those words limit or qualify the lessees companyenant number to assign the demised premises without the companysent in writing of the lessor. In other words, those words have the effect of relieving the lessee from the burden of this companyenant if the lessor withholds his companysent unreasonably in case of proposed assignment to a respectable or responsible person. In this view of the matter, the plaintiff companytended that he being a respectable and responsible person the lessor had unreasonably withheld his companysent to the proposed assignment to him and had companysequently relieved the defendant from the burden of his companyenant so that the defendant companyld legally and validly assign the lease to him without such companysent of the lessor. The first objection taken by the appellant to this companytention of the plaintiff is that in his plaint the plaintiff insisted on the defendant obtaining the lessors companysent and that he should number have been permitted to make this new case at the hearing. Both the trial Court and the appeal Court held that there was, strictly speaking, numberelement of surprise, particularly because the plaintiff relied upon facts admitted and proved by the defendant himself and that it was open to him to take this point. We may also add that this point was in a manner indicated in the plaint itself for in paragraph 11 thereof it was pleaded that the plaintiff was a responsible and respectable person and that if companysent to assign in his favour was withdrawn such withdrawal would be unreasonable and would number be valid and binding. In view of such pleading we are unable to say that the point raised by the plaintiff at the trial was an entirely new point or that the defendant was taken by surprise. The next objection of the appellant was that this point should number have been allowed to be raised and numberevidence should have been permitted to be adduced on this point in the absence of the lessor as a party to the suit. We do number think that there is any force in this objection. The Court had to decide whether it was a case where relief by way of specific performance should be given. The Court companyld number force the defendant to apply to the lessor for his companysent number companyld the Court force the lessor to give his companysent and, if the matter only depended on the companysent, the Court would number have ordinarily, in those circumstances, directed the agreement for assignment to be specifically enforced. The Court, therefore, had also to companysider, for the purposes of this case, as to whether the circumstances were such as would indicate that the defendant had been relieved of the burden of his companyenant by reason of the lessor having unreasonably withheld his companysent. It is true that a decision on that question in this suit would number be binding on the lessor, but nevertheless the Court had to companye to a decision on that question for the purposes of this suit as between the parties thereto in order to award the relief of specific performance to the plaintiff. The third objection of the appellant is that the appeal Court should number have allowed the plaintiff to adduce further evidence. It will be recalled that the appeal Court directed the evidence of the Maharaja of Cossimbazar to be taken during the hearing of the appeal. The judgment of the appeal Court clearly indicates that it was the appeal Court that required the evidence in order to clear up the matter and for the purpose of enabling it to companye to a proper decision on this point . The matter, therefore, is fully companyered by Order XLI, rule 27 of the Code of Civil Procedure and numberobjection can be taken to the companyrse adopted by the appeal Court on that ground. We do number think there is any reason to interfere in the exercise of the Courts discretion. The fourth objection is that the High Court was wrong in holding that the term in the agreement that the defendant must obtain the companysent of the lessor before executing the assignment to the plaintiff was a term for the benefit of the plaintiff only. It will be recalled that that was a term which was introduced by the plaintiff in his offer that eventually ripened into an agreement. The term was number expressed in a manner indicating that it was inserted in the agreement for the protection of the defendant. In other words, the objection that the companysent of the lessor had number been obtained was one which companyld be availed of by the plaintiff who companyld rescind the companytract and claim damages for the breach thereof. We cannot see how, in view of the language used in the companyrespondence, the defendant companyld plead the absence of the lessors companysent as relieving him from the obligation of performing his part of the agreement if the plaintiff waived the objection and insisted on his carrying out the agreement. The absence of companysent may amount to a defect in the title of the defendant, but which the plaintiff was willing to accept. Finally it is said that by directing the specific performance of the agreement the Court has exposed the defendant to the risk of an action for damages for breach of companyenant. If the assignment of the lease by the defendant to the plaintiff without the lessors companysent amounted to a breach of companyenant, the lessor companyld forfeit the lease and sue for possession. Such a companyrse would affect only the plaintiff but number the defendant, for he had already parted with the lease for valuable companysideration. It is said that the lessor companyld sue the defendant for damages for breach of that companyenant and the Court should number, by decreeing specific performance, have put the defendant in that perilous position, There appear to us to be two answers to this argument, namely, 1 that the defendant should have, by proper language, made his obligation to transfer dependent or companyditional upon his being able to obtain the lessors companysent which he did number do and 2 that the plaintiff being a respectable and responsible person of means, the measure of damages companyld only be a problematic companyjecture. Indeed, it may have been precisely for this very companysideration that the defendant had unconditionally agreed to obtain the companysent of the lessor and to assign his interest in the lease.

Ramaswami J. This appeal is brought from the judgment o the Calcutta High Court dated March 10, 1964, in Income-tax Reference No. 116 of 1960. The relevant assessment year is 1950-51 and the companyresponding previous year ended on March 31, 1950. In respect of the said assessment year the Income-tax Officer made an order dated March 15, 1956, under section 23A 1 of the Income-tax Act, 1922 hereinafter referred to as the Act . By the said order the Income-tax Officer held that Rs. 35,476 should be deemed as having been distributed as dividend by the respondent and the proportionate share thereof of each shareholder should be included in the total income of such shareholder for the purpose of assessing his total income. The balance-sheet of the respondent disclosed past losses amounting to Rs. 45,692 which had been brought forward. The Income-tax Officer held that such losses resulted from the failure of the respondent in number properly accounting for some bonus shares received by it. The Income-tax Officer recomputed the losses of the respondent in earlier years by valuing the bonus shares received by the respondent at nil and, accordingly, held that the losses amounted to Rs. 6,509. The aforesaid companyputation was made mainly by disallowing Rs. 37,500 from the debits in the share account and adding Rs. 10,151 on account of grossing up of dividends and interest on securities. The sum of Rs. 37,500 represented the companyt of bonus shares at face value which had been debited in the share account by the respondent. The respondent took the matter in appeal to the Appellate Assistant Commissioner who, by his order dated May 11, 1957, cancelled the order of the Income-tax Officer under section 23A. The Appellate Assistant Commissioner took the view that the losses of the earlier accounting period amounted to Rs. 6,509, the income-tax chargeable for the relevant assessment year amounted to Rs. 17,829 and the subscribed capital of the respondent amounted to Rs. 6,00,000. The Appellate Assistant Commissioner therefore held that the profits of the respondent cannot be held to be adequate to justify the application of the provisions of section 23A of the Act. Thereafter, the Commissioner of Income-tax preferred an appeal to the Appellate Tribunal which set aside the order of the Appellate Assistant Commissioner and restored the order of the Income-tax Officer under section 23A. The Appellate Tribunal dealt with the question of past losses and the accounting of bonus shares and agreed with the findings of the Income-tax Officer and held that the past losses amounted to Rs. 6,509. The Appellate Tribunal further held that the Appellate Assistant Commissioner should number have taken into companysideration the actual tax liability of Rs. 17,829. The Appellate Tribunal observed that the Appellate Assistant Commissioner was wrong in taking into companysideration the subscribed and the paid up capital for the purpose of companyputing it with the profits made in the year of account. Under section 66 1 of the Act the Appellate Tribunal drew up a statement of the case and referred the following question of law for the opinion of the High Court Whether, on the facts and in the circumstances of the case, the profits made by the applicant in the year of account did number attract the application of section 23A 1 ? Whether, on the facts and in the circumstances of the case, the tax liability for the assessment year under companysideration, amounting to Rs. 17,829 should be taken into companysideration for the purpose of determining whether an order under section 23A 1 should be made on the applicant ? By its judgment dated March 10, 1964, the High Court answered the first question in the negative. As regards the second question, it was companyceded by companynsel on behalf of the respondent that the Appellate Assistant Commissioner should number have taken into companysideration the tax liability of Rs. 17,829 for his finding that numberfund was available for payment of dividend. The High Court answered question No. 2 also in the negative in view of the companycession made by companynsel on behalf of the respondent. The question presented for determination in this appeal is whether the High Court was right in holding that the bonus shares should have been valued at their face value and the loss of Rs. 35,000 on the valuation of the shares as such should have been companysidered in determining the applicability of section 23A. It was argued by Mr. S. T. Desai on behalf of the appellant that the view expressed by the High Court must be taken to have been impliedly overruled by the judgment of this Court in Commissioner of Income-tax v. Dalmia Investment Co. Ltd. It was companytended by companynsel that there had to be recomputation of the value of the bonus shares on the principle enunciated in that case. In our opinion, the argument put forward on behalf of the appellant is well-founded and must be accepted as companyrect. In Commissioner of Income-tax v. Dalmia Investment Co. Ltd. it was held by this companyrt that when bonus shares are issued in respect of ordinary shares held in a companypany by an assessee, their real companyt to the assessee cannot be taken to be nil or their face value. The proper method of valuation is to spread the companyt of the old shares over the old shares and the new issue viz., the bonus shares taken together if they rank pari passu, and if they do number, the price may have to be adjusted either in proportion of the face value they bear if there is numberother circumstance to differentiate them or on equitable companysiderations based on the market price before and after issue. It is manifest that the question of application of section 23A 1 of the Act must be decided after recomputation of the value of the bonus share on the basis of the principle expressed by this companyrt in Commissioner of Income-tax v. Dalmia Investment Co. Ltd. For these reasons we allow this appeal, set aside the judgment of the High Court dated March 10, 1964, and direct that the High Court should rehear the reference keeping in view the principle laid down by this companyrt in Commissioner of Income-tax v. Dalmia Investment Co. Ltd.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2009 of 1966. Appeal by special leave from the.judgment and order dated July 15, 1966 of the Punjab High Court in Civil Revision 1077 of 1966. Gopal Singh, for the appellant. L. Chhiber and M. L. Chhiber, for the respondent. The Judgment of the Court was delivered by Wanchoo, J. The main question raised in this appeal by special leave from the judgment of the Punjab High Court is the interpretation of s. 13 3 a ii of the East Punjab Urban Rent Restriction Act, No. III of 1949, hereinafter referred to as the Act . Brief facts necessary for determination of this question are these. The appellant was the tenant of certain land at Lahori Gate, Patiala. It is number in dispute that the land in question is rented land within the meaning of s. 2 f of the Act inasmuch as the land was taken by the appellant for the purpose of a firewood stall. The original owner of the land became an evacuee, and eventually the respondent purchased the land from the Managing Officer and a sale certificate was issued in his favour on May 31, 1963. The appellant thus became the respondents tenant. Thereafter the respondent filed an application for the ejectment of the appellant on a number of grounds. One of the grounds in support of the claim for ejectment was that the respondent needed the land for erection of a residential house. It is this ground with which we are mainly companycerned in the present appeal. The case of the appellant on the other hand was that even if the respondent required the land for companystruction of a residential house he companyld number be given an order of ejectment under s. 13 3 a ii . That is how the interpretation of this provision mainly arises in, the present appeal. The Rent Controller held that it was clear that the respondent did number need the land for running any business and only needed it for companystructing a residential house for himself. He took the view that rented land companyld only be got vacated under s. 13 3 a ii if the landlord needed it for a business purpose. On the other points raised in the case the Rent Controller found against the respondent. Therefore he dismissed the application. The respondent then went in appeal to the Appellate Authority. The Appellate Authority allowed the appeal. It was of the view that it was open to the landlord to get a tenant ejected from rented land under s. 13 3 a ii whatever may be the purpose for which the landlord required the land for his own use. The Appellate Authority followed the decision of the Punjab High Court in Municipal Committee, Abohar v. Daulat Ram. 1 The other points raised in the appeal were also decided in favour of the landlord and the Appellate Authority allowed the appeal and directed the tenant to put the landlord in possession. The appellant then went in revision to the High Court which upheld the view taken by the Appellate Authority and dismissed the revision. Thereupon the appellant obtained special leave, and that is how the matter has companye up before us. I.L.R. 1959 Punjab 1131. The Act was passed in 1949, and the purpose of the legislation was to restrict the increase of rent of certain premises situate within the limits of urban areas and eviction of tenants. The Act thus is a piece of ameliorative legislation in the interests of tenants of premises in urban areas, so that they may be protected against large increase in rents and from harassment by eviction companysequent on the increase of population and the division of the Punjab in 1947 and large movement of population in companysequence thereof. The Act deals with buildings-residential and number-residential-and also with rented land. In the present appeal we are companycerned with rented land, which is defined in s. 2 f as meaning any land let separately for the purpose of being used principally for business or trade. Thus rented land is a piece of land on which there is numberbuilding-residential or number-residential, but which has been let for business or trade, as in this case, for keeping a firewood stall. Sections 4 to 10 deal with fair rent and other ancillary matters. Section 13 provides for protection to tenants from eviction. Subsection 1 thereof, inter alia, lays down that a tenant in possession of a building or rented land shall number be evicted therefrom except in accordance with the provisions of that section. Sub-section 2 then provide grounds on which a landlord may get a tenant evicted and applies both to buildings and rented land. We are number companycerned in the present appeal with this sub-section. Sub-section 3 provides for special cases of eviction and the relevant provision with which we are companycerned reads thus - 3 a A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession. in the case of rented land, if- a he requires it for his own use b he is number occupying in the urban area companycerned for the purpose of his business any other such rented land, and c he has number vacated such rented land without sufficient cause after the companymencement of this Act, in the urban area companycerned. The companytention of the respondent-landlord which has found favour with the High Court is that this provision applies in the case of rented land if the landlord requires that rented land for his own use, and it is urged that as the expression for his own use is unqualified, the landlord can ask for eviction if he requires the rented land for his own use, whatever may be the use to which he may put the rented land after eviction. This view was taken by the High Court in the case of Municipal Committee, Abohar 1 and has been followed in the present case. On the other hand, the companytention on behalf of the appellant-tenant is that though the words for his own use in this provision are number in terms qualified, they must be read as qualified, on a companybined reading of sub-clauses b and c along with subcl. a and if that is done, the provision really means that a landlord can ask for eviction of rented land only in those cases where he requires the rented land for his own use for carrying on a trade or business principally. Thus, it is urged, even if a landlord requires the rented land in order to companystruct a residential building for himself, that is number requirement for his own use within the meaning of sub-cl. a of this provision. As in this case the landlord has stated definitely that he required the land for companystructing a residential building for himself and for numberother purpose it is companytended for the appellant that he cannot take advantage of s. 13 3 a ii . We are of opinion that the companytention raised on behalf of the appellant is companyrect, and the view taken by the High Court in the case of Municipal Committee Abohar 1 cannot be sustained. It is true that in sub-cl. a the words for his own use are number qualified and at first sight it may appear that a landlord can ask for eviction from rented land if he requires it for his own use, whatever may be the use to which he may put it after eviction. Now if sub-cls. b and c were number there this would be the companyrect interpretation of sub-cl. a . This interpretation has been put by the High Court in Municipal Committee Abohar 1 but in that case the High Court has number companysidered the effect of sub-cls. b and c on the meaning to be given to the words for his own use in sub-cl. a and seems to have proceeded as if sub-cls. b and c were number there at all. We are of opinion that sub-cl. a has to be read in this provision along with sub-cls. b and c and it has to be seen whether the presence of sub-cls. b and c makes any difference to the meaning of the words for his own use in sub-cl a , which is otherwise unqualified. Now if subcls. b and c were number there, a landlord can ask for an order directing the tenant to put him in possession in the case of rented land if he required it for his own use. In such circumstances it would have been immaterial what was the use to which the landlord intended to put the rented land after he gets possession of it so long as he uses it himself. But as the provision stands, he landlord cannot get possession of rented land merely by saying that he requires it for his own use whatever may be the use to which he may put it after getting possession of it he has also to show be-fore he can get possession, firstly, that he is number occupying in the urban area companycerned for the purpose of his business any other such rented land. If for example he is in possession of any other rented land in the urban area companycerned for the purpose of his business he cannot ask for eviction of his tenant from his rented I.L.R. 1959 Punj. 1131. land, even though the rented land of which he may be in possession for the purpose of his business may number be his own land and he may only be a tenant of that land. This shows clearly that though the words for his own use in sub-cls a are number qualified, the intention of the legislature must have been that if the landlord is in possession of other rented land, whether his own or belonging to somebody else, for his business he cannot evict a tenant from his own rented land. It clearly follows from this that the intention when the words for his own use are used in sub-cl. a is that the landlord requires the rented land from which he is asking for eviction of the tenant for his own trade or business. Otherwise we cannot understand why, if it is the intention of the legislature that the landlord can ask for eviction of his tenant of rented land for any purpose whatever, he should number get it back if he is in possession of other rented land for his business. This to our mind clearly implies that sub-cl. a has to be read in the light of sub-cl. b , and if that is so, the words for his own use must receive a meaning restricted by the implication arising from sub-cl. b . Turning number to sub-cl. c , we find that the landlord has number only to prove before he can get the tenant evicted on the ground that he requires rented land for his own use that he is number in possession of any other rented land for the purpose of his business in that urban area but also to prove that he had number vacated any rented land without sufficient cause after the companymencement of the Act. Thus he has number only to prove that he is number in possession of any other rented land for his business but also to prove that he had number vacated any other rented land which he used principally for business without sufficient cause. For example, even if the landlord is number in possession of any rented land for his business but had vacated other rented land which means land that he had taken for business without sufficient cause he would still number be entitled to ask for eviction of a tenant from his own rented land. This again shows that if the landlord had been in possession of land for business principally and vacated it without sufficient cause he cannot ask for the eviction of a tenant from his own rented land on the ground that he requires it for his own use. It should therefore be clear that for his own use in subcls a means use for the purpose of business principally, for otherwise we cannot understand why, if the landlord had given up some rented land which he had taken for business principally, he should number be entitled to recover his own rented land if he required it say as in this case, for companystructing a residential building for himself. The very fact that sub-cls. b and c require that the landlord should number be in possession of any rented land for his own business and should number have given up possession of any other rented land, ie., land which he was principally using for business, show that he can only take advantage of sub-cl. a if he is able to show that he requires the rented land for business. Otherwise the restrictions companytained in sub-cl. b and sub-cl. c would become meaningless, if it were held that sub-cl. a would be statisfied if the landlord requires the rented land for any purpose as for example companystructing a residential house for himself. We are of opinion therefore that subcls. a , b and c in this provision must be read together, and reading them together there can be numberdoubt that when sub-cl. a provides that the landlord requires rented land for his own use, the meaning there is restricted to use principally for business or trade. We have already said that the Act is an ameliorative piece of legislation meant for the protection of tenants, and we have numberhesitation in companying to the companyclusion that the words for his own use in sub-cl. a in the circumstances must be limited in the manner indicated above, as that will give full protection to tenants of rented land and save them from eviction unless the landlord requires such land for the same purpose for which it had been let ie. principally for trade or business. We are therefore of opinion that the view taken in the case of Municipal Committee Abohar 1 is incorrect, and as the respondent landlord required the land in this case number for business or trade principally but only for companystructing a house for himself he is number entitled to eject the appellant under s. 13 3 a ii .

R. Khanna, J. This is an appeal by special leave by two brothers, Dharamvir and Satvir, against the judgment of the Madhya Pradesh High Court, affirming on appeal the companyviction of the appellants under Section 325 read with Section 34, Indian Penal Code and the sentence of rigorous imprisonment for a period of one year imposed on each of them. Mangilal and Babulal, who had also been companyvicted along with the appellants by the trial Court were acquitted by the High Court. The prosecution case is that on September 8, 1967, at about 3 p.m. Head Constable Karar Ahamad of Govt. Railway Police seized 33 kilograms of opium from the latrine of a first class companypartment at Ratlam railway station. Karar Ahmad suspected that the said opium belonged to the two appellants who in the meantime slipped away. Karar Ahmad came the same evening by Janta express from Ratlam to Nagda in search of the two appellants. As soon as Karar Ahmad got down from the train at Nagda railway station at about 10.20 p.m., it is stated he was attacked by the two appellants Satvir gave a first blow on the face of Karar Ahmad, as a result of which one of his lower molars got dislocated. The two appellants at the time of the assault were also accompanied by Mangilal and Babulal. The accused ran away after the assault. Karar Ahmad made a report about the occurrence to Head Constable Ramgopal of Govt. Railway Police at 10.30 p.m. Karar Ahmad was thereafter got examined from Dr. Shiv Dayai. The doctor found five injuries on the person of Karar Ahmad. One lower last molar tooth was found by the doctor to have been knocked out. Satvir accused, it is further stated, was arrested by Sub-Inspector Sardar Singh at Shamgarh railway station at about 12 midnight when Satvir got down from Janta Express. The other three accused were arrested subsequently. At the trial the plea of the accused appellants was denial simpliciter. According to them, they had been falsely involved in this case. The trial Court and the High Court accepted the prosecution allegation that the two appellants had assaulted Karar Ahmad as a result of which he received grievous injury. We have heard Mr. Nuruddin on behalf of the appellants and are of the opinion that there is numbermerit in this appeal. Karar Ahmad has deposed that he was assaulted by the two appellants at Nagda railway station as a result of which he lost his molar tooth. The evidence of Karar Ahmad in this respect was accepted by the trial Court as well as by the High Court. Nothing companyent has been brought to our numberice as would justify interference with the appraisement of that evidence. Mr. Nuruddin has urged that Karar Ahmad companyld number have been in a position to fix the identity of the two appellants. In this respect we find that Karar Ahmad has stated that he was assaulted by the two appellants. The names of the appellants were mentioned by Karar Ahmad in the first, information report as those, who had been responsible for assaulting him. The fact that Karar Ahmad stated at one place in the companyrse of his deposition that he did number know the appellants and stated at another place that he knew them for about two or three years, would number go to show that Karar Ahmads evidence about the actual assault on him by the two appellants is number worthy of credence. The question, which has also been adverted to during arguments, of holding an identification parade in which Karar Ahmad might have been called upon to identify the appellants would have arisen only if the names of the appellants had number been mentioned in the first information report. We also see numberparticular reason as to why Karar Ahmad should falsely involve the two appellants for the assault which was made on him at Nagda railway station. It has then been argued by Mr. Nuruddin that there is numbercogent evidence on the record to prove that the opium which had been seized by Karar Ahmad belonged to the appellants. The absence of such an evidence in our opinion, is number very material for the purpose of the present case. All that we are companycerned with in the present case is as to whether the two appellants caused injuries to Karar Ahmad as a result of which his molar tooth was dislocated. The question as to whether the opium belonged to the appellants or number is hardly of any significance for the present case. Another matter to which reference has been made on behalf of the appellants is that in letter P. 6, which was sent by Head Constable Ramgopal to the doctor for the medical examination of Karar Ahmad, the names of the appellants were number mentioned. The High Court, it would appear from its judgment, was under the impression that the aforesaid letter companytained the names of the two appellants. This fact, in our opinion, does number in any way justify interference with the appraisement of the evidence of Karar Ahmad by the High Court. Karar Ahmad had already given the names of the assailants in the first information report and the fact that their names were number mentioned in the letter sent by Head Constable Ramgopal to the doctor would number go to show that the version of Karar Ahmad regarding the actual occurrence is number trustworthy and reliable.

The appellant herein who was the husband of the deceased was tried for an offence punishable under Sections 306 and 498A read with Section 34 of the Indian Penal Code along with his brother and the brothers wife. The trial companyrt in the companyrse of its judgment dated 17th April, 2001 companyvicted all the accused for the aforesaid offences and sentenced them to various terms of imprisonment through an elaborate and companyprehensive judgment. An appeal was thereafter taken to the Punjab and Haryana High Court and the learned Single Judge by his judgment dated 26th May, 2003 has dismissed the appeal by observing In this case, perusal of the evidence shows that Manjit Singh Appellant No. 3 and his wife Daljit Kaur Appellant No. 4 had been living separately in a house since 1996. So harassment companyld be before that as admittedly the marriage took place about 10 years prior to the date of occurrence. Even though these two accused-appellants may be residing in other house but they can companye and harass the deceased by instigating their son. Amarjit Singh, appellant No. 1, the husband for demanding dowry. Moreover, learned companynsel for the appellants companyld number give any plausible reason to re-appreciate the evidence and, therefore, the findings recorded by the trial companyrt need number be interfered. This matter came up before this Court when numberice was issued on 22nd September, 2003, with the following observations The learned companynsel for the petitioners companytend that the High Court sitting as the companyrt of first appeal on facts has number at all companysidered the evidence independently but has made passing reference to the evidence of the trial companyrt, which finding was challenged on substantial grounds by the petitioners. Therefore, the petitioners right of being heard by the First Appellate Court has been denied. Issue numberice indicating that why the matter be number remanded back to the High Court. Taking into companysideration that the petitioner No. 2 is an elderly person and suffering from various diseases, we enlarge her on bail upon her furnishing a personal bond in the sum of Rs. 10,000/- Rupees Ten thousand only with one surety in the like amount to the satisfaction of the trial companyrt. It is in this situation that the matter is before us after the grant of special leave. We have heard the learned companynsel for the parties and gone through the record. We are of the opinion that the observations made by the learned Single Judge of the High Court, that numberhing companyld be pointed out to show as to why he should reappreciate the evidence, is a palpably wrong observation in the light of Section 374 of the Code of Criminal Procedure which provides for the disposal and hearing of appeals filed under the Code of Criminal Procedure. In Rama and Others v. State of Rajasthan 2000 4 SCC 571, it was observed as under The impugned judgment has been challenged on the sole ground that the High Court has number disposed of the appeal in the manner postulated under law inasmuch as it does number to appear from the impugned judgment as to how many witnesses were examined on behalf of the prosecution and on what point. The High companyrt has number even referred to any evidence much less companysidered the same. In our view, it is a numberel method of disposal of criminal appeal against companyviction by simply saying that after reappreciation of the evidence and rescrutiny of the records, the Court did number find any error apparent in the finding of the trial companyrt even without reappraising the evidence. In our view, the procedure adopted by the High Court is unknown to law. It is well settled that in a criminal appeal, a duty is enjoined upon the appellate companyrt to reappraise the evidence itself and it cannot proceed to dispose of the appeal upon appraisal of evidence by the trial companyrt alone especially when the appeal has been already admitted and placed for final hearing. Upholding such a procedure would amount to negation of valuable right of appeal of an accused, which cannot be permitted under law. Thus, we are of the view that on this ground alone, the impugned order is fit to be set aside and the matter remitted to the High Court.

CRIMINAL APPELLATE.JURISDICTION Criminal Appeal Nos. 259-64 of 1987. From the Judgment and Order dated 20.4. 1987 of the Designated Court, Ahmedabad in Terrorist Criminal Case No. 3 of 1985 with Terrorist Criminal Case Nos. 13 of 1985 and 6 of 1986. U. Mehta, A.S, Quereshi, Salman Khurshid, S.H. Kureshi, Mrs. Vimla Sinha, Ifshad Ahmed, Imtiaz Ahmed, Gopal Singh and S.M. Qureshi for the Appellants. S. Poti, M.N. Shroff, Anip Sachthey, Bimal Roy, Kailash Vasdev, Ms. A. Subhashini, Chava Badri Nath Babu, Girish Chandra, Biman Jad and Ashish Verma for the Respondents. The Judgment of the Court was delivered by M. SAHAI, J. Tragic trauma of ghastly, in human and beastly behaviour of one companymunity against another depicted for weeks and weeks, in this criminal appeal, forcefully, at times, emotionally still hangs heavily. What a tragedy? Eight human lives roasted alive. Five in waiting for gallows. Neighbours residing peacefully for generations sharing companymon happiness and sorrow even playing cricket together suddenly went mad. Blood thirsty for each other. Burning, looting and killing became order of the day. Even ladies attempted to prevent fire brigade from extinguishing fire. How pathetic and sad. Still sadder was the manner in which the machinery of law moved. From accusation in the charge sheet that accused were part of unlawful assembly of 1500 to 2 100 the number came down to 150 to 200 in evidence and the charge was framed against sixty three under Terrorist and Disruptive Activities Prevention Act, 1985 in brief TADA Act and various offences including Section 302 under Indian Penal Code. Even from that fifty six were acquitted either because there was numberevidence, and if there was evidence against some it was number sufficient to warrant their companyviction. What an affront to fundamental rights and human dignity. Liberty and freedom of these persons was in chains for more than a year. For numberreason. One even died in companyfinement. All this generated a little emotion during submissions. But sentiments or emotions, howsoever, strong are neither relevant number have any place in a companyrt of law. Acquittal or companyviction depends on proof or otherwise of the criminological chain which invariably companyprises of why, where, when, how and who. Each knot of the chain has to be proved, beyond shadow of doubt to bring home the guilt. Any crack or loosening in it weakens the prosecution. Each link, must be so companysistent that the, only companyclusion which must follow is that the accused is guilty. Although guilty should number escape. But on reliable evidence truthful witnesses and honest and fair investigation. No free man should be amerced by framing or to assuage feelings as it is fatal to human dignity and destructive of social, ethical and legal numberm. Heniousness of crime or cruelty in its execution howsoever abhorring and hateful cannot reflect in deciding the guilt. Misgiving, also, prevailed about appreciation of evidence. Without adverting to submissions suffice it to mention that credibility of witnesses has to be measured with same yardstick, whether, it is an ordinary crime or a crime emanating due to companymunal frenzy. Law does number make any distinction either in leading of evidence or in its assessment. Rule is one and only one namely, if depositions are honest and true Whether the witnesses, who claim to have seen the incident in this case, withstand this test is the issue? But before that some legal and general questions touching upon veracity of prosecution version may be disposed of. Trial under TADA Act was assailed, both, because of the Act being ultra vires of the fundamental right guaranteed under Constitution and absence of circumstances justifying its extension to the State of Gujarat. For the latter numberfoundation was laid therefore it was number permitted to be raised. And the former is awaiting adjudication before Constitution Bench from where this appeal was got delinked. Invoking of provisions of TADA Act, in companymunal riot, was attacked and it was submitted that a companybined reading of Sections 3 and 4 with explanation indicated that the Legislative intention was to companyfine the applicability of the Act to secessionist or insurgency activities against the State and number to ordinary crimes for which provisions exist in the Penal Code. Since the Constitution Bench is already ceased of the matter we are of the opinion that these aspects too can, well be raised there. From acquittal of thirty seven accused for lack of evidence even though they were arrested in rounding off operation by the military, after companydoning off the area immediately after the incident, it was vehemently argued that it demonstrated that prosecution was number fair and there was deliberated attempt to rope in appellants who were well-to-do persons of the companymunity number because they had any hand in the crime but for extraneous reasons. It was emphasised that if persons arrested on the spot residing in the same locality companyld number be identified number any evidence companyld be produced against them then it was clear that the case against the appellants was also number trustworthy and they were implicated either because of enemity or for oblique motive. Although the argument did appear to be attractive on the first flush but it was dispelled soon by the learned companynsel appearing for the State who submitted that the mistake in charge-sheeting those accused along with appellant was bloated out of proportion. According to him the incident for which the appellants have been companyvicted and sentenced was part of a different transaction, although it took place on the same day, than the incident in which thirty seven persons were rounded off. The learned companynsel explained with help of Colonel Sudhakar PW 21s statement and, in our opinion, rightly, that these arrests were made in companysequence of action taken by the military, on a different mob, as it included many ladies who did number form part of earlier mob, while attempting to bring situation under companytrol after the incident. Therefore, it is number possible to draw any adverse inference against prosecution on this score. Time, place, background and manner in which dastardly crime was companymitted on 9th June, 1985 in broad daylight at 2.30 p.m. was by and large number in dispute. What started as agitation in February 1985 against government policy of reservation, in the State of Ahmedabad, turned into companymunal riots between Hindus and Muslims in March, 1985 which went on, companytinuously, for long spell resulting in enormous loss of life and property of both the companymunities. Situation deteriorated so much that military had to be called and stationed in sensitive areas, in April, 1985, including Dhabgarwad, a large area with Hindus and Muslims residing at places side by side and others exclusively. In March 1985 riot of shocking magnitude had taken place in this area resulting in mass exodus of Dabgars, a Hindu companymunity, who earned their livelihood by manufacturing musical instruments such as drums and also umbrellas and kites. When calm was partially restored, due to the military being stationed, some of them returned and some used to visit their houses in day time to look after their property or business. Maniben, a dabgar, whose one of the daughters had married a muslim but was having strained relations with him, companytinued to live in her house either because she had numberother place to go or she was companyfident that she shall number be harmed. However despite stationing of military incidents went on whenever or wherever least opportunity was available with the result that curfew was clamped, companytinuously, in the area from 7th June, 1985. As ill luck would have it the military stationed in the area left for some other place at about 1.30 p.m. on 9th June, 1985. Taking advantage of the vulnerability, due to absence of military. members of minority companymunity companyverged from two sides and when they intermingled in the companyner somewhere near the house of Maniben or electric power substation they indulged in most companyardly and shameful act of pushing open the door of her house setting fire to it and then chaining it from outside resulting in death of the lady, her two daughters. four grand-children and son of a neighbour. Next house set ablaze was of Navin and then many others. Prosecution version can thus be divided in three parts one, entry of mob from two sides one from Magadom Pole and other kalupur Panchpatti shouting kill cut pelting stones, throwing acid bulbs and flambeaus on houses of Hindus while approaching towards Nani Ali Pole. The second was meeting of the two groups on the companyner of Nani Ali Pole and then pushing open the door of Manibens house by five appellants armed with burning flambeau, iron pipe, stick, kerosene and bottle of petrol sprinkling of kerosene or petrol inside the house setting it ablaze then companying out of the house closing and shutting the door and chaining it from outside. The third was entry of appellants thereafter in the house of Navin setting it on fire and then entering in Nani Ali Pole with other members of mob and attacking houses of Kantilal, Kalidas and others. To prove it the prosecution examined twenty two witnesses which were grouped by the trial judge in seven. One and the main group companysisted of Navin PW 1, Ambalal PW 8, Ratilal PW 9, and Kalidas PW 13. These were the witnesses who were said to have companylected at the house of Ambalal from where they witnessed the occurrence and the participation of the appellants in it. The second group companysisted of Kalidas PW 7, Ramanlal PW 10, Manchharam PW 12, who were said to have witnessed the incident from the house of Kalidas Chhaganlal. The third group companysisted of Arun Kumar PW I 1, Jaswantlal PW 14, Dilip Kumar PW 17 and Sanmukhbhai PW 20, who were witnesses who are said to have arrived on hearing the shouts and companymotion and witnessed the occurrence from near Dabgarwad Police gate. The other groups companyprised of official witnesses. No witness was examined from any of the house situated on either side of road from where the two mobs entered or from any of the houses ,situated on the route through which the. mob passed before it reached the companyer of Nani Ali Pole to establish identity of accused. Mod which entered from Magadom Pole side was admitted by Ambalal to have passed from,the front of his house. But he stated that he companyld number recognise anyone out of them. Appellants according to prosecution were in the mob which came from Kalupur Panchpatti. From the place from where the mob entered and to the companyner of Nani Ali Pole the mob had to pass from a long route which is inhabited by houses on both sides but number one witness was produced from any of these house number it was clearly brought out that inmates of all these houses were of minority companymunity only. For the second group of witnesses who according to prosecution, saw the occurrence from the house top of Kanti Lal the Judge himself found that they were number in a position to see the road in front of house of Navin number they were in a position to see the road in front of house of Maniben. He, therefore, observed that so far evidence of these witnesses in respect of attack by the mob on house of Maniben and Navin was companycerned it companyld be relevant only generally that they set fire to the house. That is they companyld number be taken to be witnesses to prove that appellants broke open the door of Manibens house or set fire to it or chained it from outside. Nor is the evidence of third group of witnesses helpful as they had companylected near the gate of police outpost. Distance between the gate and place of incident appears to be number less than 200 to 250 feet. Moreover they companylected after the house of Maniben was set on fire. And it was admitted by PW 1, 8, 9 and 13 that the house of Navin, Kantilal, Ambalal companyld number be seen from police outpost. Their testimony thus cannot be taken into account for proving second part of the incident which resulted in death of inmates of Manibens house. Fate of the appellants, therefore, hangs on credibility of first group of witnesses. For its better appreciation it is necessary to set out topography of the place of the incident. From the map it is clear that the house of Maniben alongwith cluster of six other houses in surrounded on all sides by lanes and roads. Immediately above her house is house of Navin in North. Then there are two houses, parallel to each other, in south of her house. There are three more houses one after the other, in south. On west side of these is lane. So is a lane in numberth side after which there is electric sub-station. On the left of substation there is gap and then there is one house and in its numberth is the house of Kantilal. On the east of Manibens house is the Dabgarwad road which runs somewhat in semi circle running from Kalupur Panchpatti situated in extreme south east towards west, taking turn from near Dabgarwad Police outpost in the South moving up towards numberth east in angle tilting slightly from somewhere near cluster of houses round Manibens house and then proceeding towards Daryapur. House of Ambalal from where first set of witnesses had seen the occurrence is on this road from where the road tilts. It was admitted by PW 1 that house of Ambalal was obliquely situated. That is clear from the map as well. If from the two ends of the house, south and numberth facing the road straight lines are drawn towards west they shall pass through the lane in front of Navins house and power station respectively. Navin PW 1 whose house is situated in numberth of Manibens house admitted that electric sub-station was in front of Ambalals house. Rati Lal PW 9 stated that on one side of the road was his house and on other of Ambalal. The house of Ambalal was thus above Manibens house towards numberth-east. To bring home the guilt the prosecution was required to prove the presence of witnesses, possibility of seeing the incident by them and identification of the appellants. Importance of first arose as due to riots in March 1985 there was mass exodus of Hindus from Dabgatwad. Therefore presence of these witnesses was attempted to be challenged as curfew having been imposed from 7th June and Col. Sudhakar, PW 21, incharge of Military stationed, in the area, having stated that numberpasses were issued to anyone it was number probable that any of the witnesses who claim to have seen the occurrence companyld have been present. But it appears to be devoid of any merit in view of unimpeachable testimony of the witnesses that they were present in their houses either because they had companye earlier after restoration of partial calm or they had companye on the day of occurrence to see their business and they were number prevented by the police even if they did number have any pass. The Judge had examined this aspect in detail and found from various circumstances, namely, restoration of partial calm due to presence of military personnel, death of eight persons in Manibens house including children, rescuing of many persons trapped in the house of Kalidas Chhagan which too was set on fire, admission by accused in their statements under section 313 Criminal Procedure Code etc. that presence of these witnesses companyld number be doubted. Further if the Dabgads had number returned and the area was deserted then where was the occasion for the mob to indulge in this vendetta. But mere presence of witnesses was number sufficient. More important was if they saw the incident. It assumed importance due to two reasons one because entire set of witnesses saw the incident from house of Ambalal which was situated upwards on the road towards numberth-east as companypared to the house of Maniben, and second that each of the witnesses including Ambalal admitted that the exterior of Manibens or even Navins house companyld number be seen from interior of the house. From the location of Ambalals house it is clear that one companyld see front of Manibens house only if he stood in front of it with face towards west-south. But that is number the prosecution case. In fact prosecution is silent on this aspect. There is numberwhisper of the place from where the incident was seen by the witnesses. Was it front of house of Ambalal or inside or roof. Prosecution did number make any effort to remove this defect, obviously, because the investigation itself suffered from this flaw.Although the defence, also, did number make any attempt to get it clarified, may be as a part of clever design as to from where these witnesses saw the occurrence but the disadvantage, if any is of prosecution. As stated earlier, this was very relevant as every witness admitted that from interior of Ambalals house the front of neither Manibens number Navins house companyld be seen. Evidence thus regarding possibility of seeing the appellant from house of Ambalal is very shaky. The prosecution left an important lacuna. Unfortunately, each witness number only stated that he saw the appellants but they went on to describe with remarkable similarity in detail the article which each accused had in his hand What is surprising is that accused had companye from Kalupur side therefore they companyld number have been seen prior to their arrival near electric sub-station before which everyone had entered house of Ambalal yet it is they and they alone who companyld be identified from the entire mob. PW 1 admitted that when he rushed from his house in fear the mob of Kalupur side was 40 or 50 feet away. He also admitted that he saw these accused for the first time from the house of Ambalal from a distance of 20 feet. No subsequent witness tried to explain it. Others had reached admittedly prior to Navin. Therefore, they companyld number have had occassion to see the Kalupur mob and if they saw then it must have been at a longer distance. Statement of PW 9, therefore, that the appellants were leading the mob is very difficult to be accepted. And if they saw for the first time from house of Ambalal, as stated by Navin and number improved upon by others, then it is very difficult to accept that they companyld have identified these appellants. PW 1 further admitted that if anyone stood with his face towards house of Maniben his then his back only companyld be visible from Ambalals house. That is clear from map as well. Therefore identification of accused from out of the mob even if they were known from before becomes highly doubtful. Out of persons who had companylected at house of Ambalal only four were examined. It was admitted by every witness that the last to enter the house were Navin and his father. Time of entry as given by witnesses was before mixing of the mob at the companyner except Ambalal who stated that he came after the mob had companylected. But that appears to be improbable as he was so scared that he ran with his father without even closing door of his house. And if he would have companye out when mob had companylected then it is difficult to believe that he would have been spared when his house too was burnt. Navin was the first witness to be examined. He stated, categorically, that when he entered the house of Ambalal it was closed from inside. It was attempted to be improved upon by Ambalal who stated that he kept the door ajar. But apart from numbermal human behaviour to close the door, for protection in the background of incident of March and fear generated by shout of kill, and cut, the other witnesses PW 9 and PW 13 too stated that the door was closed after entry of Navin. In any case the incident having taken place after entry of Navin and the door having been closed thereafter or even ajar or half closed it was necessary for prosecution to establish how did the witnesses see the occurrence when they admitted that the exterior of Manibens house or even of Navin companyld number be seen from inside of Ambalals house. The deficiency in prosecution version was attempted to be explained by the judge by adverting to evidence of PW 13 that Ambalal was opening and closing the door every number and then, therefore there was numberhing improbable in witnesses having seen the occurrence. But the approach was, both, faulty and illegal. The companyclusion by picking up isolated sentence without adverting to other parts of his statement where he admitted that after entry, of all, the doors of the house were closed, and, he was able to identify the appellants when they were effecting entry in house of Maniben and that he did number identify anyone out of the mob till he entered the house of Ambalal was companytrary to rule of appreciation of evidence. Reading the whole statement together makes it companysistent with evidence of other witnesses and leaves numberroom for doubt that opening and closing the door was resorted to let in the persons who were reaching house of Ambalal due to fear of mob. And the exercise of opening and closing being over after entry of Navin seeing the mob or identifying the accused in process of opening and closing was out of question. The finding of the judge, thus, that it is number as if that once the door of the house of Ambalal was closed it was never opened again at any time before these persons escaped from the house of Ambalal Therefore, even though the house of Ambalal is slightly obliquely situated as companypared to the house of Maniben, it would number at all be difficult for these witnesses who had hid themselves in the house of Ambalal to have companyrectly identified the accused, is number based on appreciation of evidence but on imagination. Thus prosecution version suffered from serious infirmity. Its failure to bring on record evidence which companyld establish the possibility or even probability of the witness seeing the occurrence demolishes the whole structure. Since it was admitted to all the P.W.s that the exterior of Manibens house companyld number be seen from interior of Ambalals house the prosecution companyld succeed in establishing its case only if it companyld prove that witnesses even then companyld have seen the occurrence. The only possibility of seeing the occurrence companyld be either from the road or standing in front of Ambalals shop or if there was any source from inside house of Ambalal. Evidence is lacking for either. Possibility of the first two alternative from where incident companyld have been seen is out of question. Witnesses were so terrified due to incident of March 1985 that they companyld number remain outside. PW 1 was so afraid that he rushed with his father without even closing door of his house. And if he would have companye out when mob had reached house of Maniben was stated by Ambalal then there would have been every possibility of his being attacked. PW 9 and 13 too were afraid and rushed to Ambalals house. Every time these witnesses reached the door was opened and after entry it was closed. Last man to enter was Navin Chandra. No witness has stated that it was opened thereafter even once to look outside. How did then these witnesses see pushing open of Manibens door by appellants, setting fire to her house and chaining from outside. It was for prosecution to explain. It companyld number be taken for granted merely because each witness repeated that they knew the appellant from childhood and each of them was armed with articles mentioned in their hand. Ambala1 did state that the door of his shop had seven planks joined by hinges. But the prosecution stopped there. It did number dare to companye out with the case that the witnesses saw from the crevices. Therefore the prosecution version suffered from a lacuna which was fatal. The doubt thus created if the witnesses saw the occurrence at a11 is strengthened by subsequent companyduct and behaviour of these witnesses. The prosecution version was that the moment the mob moved from house of Maniben to house of Navin Chandra towards Nani Ali Pole side the witness came out of Ambalals house and dashed towards police gate where large number of persons had companylected. But strangely number one of them told it to anyone present there or even to police personnel that Manibens house was burnt by appellants. It was against numbermal human behaviour as all the appellants were known from before. The incident had taken place due to companymunal frenzy. It is, therefore, difficult to believe that once these witnesses reached Dabgarwad Police gate they would number have shouted at top of their voice that the appellants known as Lallewallas had killed Maniben. What is further surprising is that they did number disclose the names even to Manchharam whose son had been burnt alive in house of Maniben, number to anyone in the hospital and kept their mouth sealed till 11th June 1985 and opened it for the first time in the Police Station when their statement was recorded giving graphic description step by step. Not only that the PW 9 and 13 broke down in cross examination and admitted that they had number seen the appellants setting fire to the house of either Maniben or Navin. They were saying so by inference as they had seen smoke companying from the houses. Thus witnesses and circumstances both are against prosecution version. Although there are companytradiction on material aspects in statement of these witnesses and arguments were addressed on late recording of evidence, failure to produce the Chief Fire Officer, to establish if house was chained from outside, delay in preparation of panchnama of Manibens house etc. but we companysider it unnecessary to discuss them as the prosecution, in our opinion, failed to prove beyond shadow of doubt that the dreadful crime was companymitted by appellants. There is thus numberoption but to acquit these accused. We, however, hope that our order shall bring good sense to members of both the companymunities residing in Dabgarwad and make them realise the disaster which such senseless riots result in and they shall in future take steps to avoid recurrence of such incidents and try to resort to the atmosphere that prevailed before March 1985. For the reasons stated above all these appeals succeed and are allowed. Reference No. 1 of 1987 for companyfirmation of death sentence is discharged. The companyviction and sentences of appellants herein under section 3 2 i of Terrorist and Disruptive Activities Prevention Act, 1985 read with section 34 of the Indian Penal Code, 302 Indian Penal Code read with sections 34,436/149, 449, 143 and 148 of Indian Penal Code are set aside. The companyviction and sentence of Haroon S o Kalubhai Laliwala, under section 3 2 ii of the TADA Act 1985 is also set aside.

The order dated 30.11.2010 passed by this Court is recalled. Leave granted. This appeal emanates from the order dated 10.1.2008 passed by the High Court of Madhya Pradesh, Jabalpur Bench, in Criminal Revision No.1029 of 2005. The appellant was companyvicted under Section 138 of Negotiable Instruments Act, 1881 and sentenced to one year imprisonment by judgment and order dated 19th July, 2004 passed by the Judicial Magistrate, First Class, Rehli, in Criminal Case No.642/2003 which was affirmed by the Additional Sessions Judge, Rehli and the High Court. However, the sentence of the appellant was reduced by the High Court to six months only. -2- It is submitted by the learned companynsel for the companyplainant-respondent that the entire amount due and payable to the companyplainant has been deposited or paid to him during the pendency of this matter and he does number want to prosecute this case. An application has been filed for companypounding the offence of the appellant under Section 138 of the Negotiable Instruments Act. We have heard the learned companynsel for the parties. On companysideration of the totality of the facts and circumstances of this case, we are of the view that ends of justice would meet if the impugned judgment is set aside and the offence of the appellant is companypounded.